Who controls the police? Battle for Inspector-General's independence

Kenya’s constitutional order rests on institutions exercising their powers within the boundaries set by the Constitution.

Few questions illustrate this principle more clearly than the relationship between the Judiciary and the office of the Inspector-General of the National police service.

The ongoing contempt proceedings against Inspector-General of Police Douglas Kanja have brought an important constitutional question into public debate: when does judicial supervision become operational direction of the National Police Service?

Conversely, when the police invoke operational independence, when does that independence cease to be lawful and become non-compliance with constitutional rights or a binding court order?

These are not questions about whether the Constitution protects demonstrations. It plainly does. Article 37 protects the right of every person, peaceably and unarmed, to assemble, demonstrate, picket and present petitions.

Nor is this an argument that the police operate above the law. Article 244 requires the National Police Service to comply with constitutional standards of human rights and fundamental freedoms.

The harder constitutional question is how these protections interact with Article 245, which deliberately places operational command of the National Police Service in the hands of the Inspector-General.

Article 245(2)(b) provides that the Inspector-General shall exercise independent command over the National Police Service.

Article 245(4) establishes an important institutional boundary by providing that, although the Cabinet Secretary may give the IG directions on matters of policy, no person may direct the IG concerning the investigation of a particular offence, enforcement of the law against particular persons, or the employment, assignment, promotion, suspension or dismissal of police officers.

The constitutional architecture therefore distinguishes policy from operational command. The IG is not merely an administrative head receiving day-to-day instructions from other actors.

The Constitution assigns the office an independent command function because policing inevitably involves decisions that must sometimes be made quickly, based on intelligence that cannot safely be disclosed publicly and in circumstances where delay may expose citizens, police officers or public institutions to serious harm.

This distinction is particularly important in the recent roadblock controversy.

The High Court found the IG in contempt over the erection of roadblocks and checkpoints during the June 25, 2026 demonstrations, holding that an earlier order required a timely public advisory before emergency barricading.

The court has directed the IG to appear for mitigation and sentencing.

The police position, however, was that the checkpoints were reactive, temporary security measures responding to real-time threats rather than pre-planned structural road closures.

Field commanders, the police argued, had to make operational assessments as events unfolded, including measures intended to filter out lawless elements while allowing peaceful members of the public to proceed.

This raises a question that deserves wider constitutional reflection: Can every emergency security response reasonably be subjected to advance public notification?

Some crimes and security threats require immediate and discreet intervention.

Announcing in advance that a particular road will be barricaded, that officers are being deployed to a particular location, or that a particular security operation is underway could, in some circumstances, defeat the very purpose of the operation.

A security operation can change within minutes. Intelligence may identify the movement of weapons, planned attacks, attempts to infiltrate a crowd, threats against critical infrastructure or preparations to attack police stations and other public institutions.

Requiring the police to wait for a public announcement before taking every form of emergency protective action risks disabling the State from responding to an immediate threat to life and property.

This does not mean intelligence should become a blanket justification for unlawful conduct. Police action must remain grounded in law, necessity and proportionality. The IG must remain accountable for the legality of the Service’s actions.

But judicial oversight should not be confused with judicial command of the police.

A court can determine whether police action is lawful, whether a constitutional right has been unlawfully limited, whether statutory powers have been exceeded and whether a binding court order has been obeyed.

What requires caution is a judicial remedy that goes further and effectively dictates the tactical means by which a lawful policing objective must be achieved.

There is a difference between requiring the police to respect peaceful assembly and prohibiting excessive force, and directing precisely how officers should be deployed, where checkpoints should be established or when operational measures should be taken.

The former is constitutional adjudication. The latter can, depending on the circumstances, enter the terrain of operational command constitutionally assigned to the IG.

Kenya does not have to choose between constitutional rights and effective policing. The Constitution requires both.

Courts must protect rights and enforce lawful orders; the police must remain accountable to the Constitution and the law; and the Inspector-General must retain the operational independence necessary to command the Service and respond to genuine security threats.

The roadblock controversy should therefore clarify, rather than erase, the constitutional boundary. Courts should determine legality; the IG should determine lawful operational strategy.

That is the real meaning of Article 245: independent command, but constitutional command; operational autonomy, but lawful autonomy; decisive policing, but policing accountable to the Constitution.

The writer is professor of psychology, and governance and leadership commentator