{UAH} Pojim/WBK: Standard Digital News - Kenya : Fury, confusion over President Uhuru Kenyatta’s executive order on recruits
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Standard Digital News - Kenya : Fury, confusion over President Uhuru Kenyatta's executive order on recruits
Kenya: The presidential directive that all 10,000 police recruits immediately report for training against an existing court order called to question the quality of legal advice the President receives.
The rescinding of the directive through a statement by National Police Service Commission chair Johnston Kavuludi on Friday threw the country into further confusion, forcing President's spokesman Manoah Esipisu and Inspector General of Police Joseph Boinet to issue two separate statements yesterday to clarify matters.
Recruits had earlier on threatened to report for training as directed by the President unless he ordered them otherwise. They claimed the Executive order issued by the President, for which he pledged to take full responsibility, had not officially been rescinded.
But Boinet's statement, issued later, brought greater clarity. "I further wish to restate, as announced by the commission, that successful applicants who had been recruited in the 2014 exercise, who were to report on Sunday 12 April 2015, that the reporting date has been cancelled."
"They are therefore encouraged to participate in the forthcoming exercise, which will be on 20th April, 2015, and they should come with all the necessary documents. The new reporting date will be communicated to the successful candidates accordingly," Boinet said yesterday.
Still, the IG's statement, just like Kavuludi's on Friday, did not touch on the President's directive on the matter. This forced Esipisu to issue another statement to settle matters once and for all.
"I do confirm that the decision was reached in consultation with His Excellency the President. Consequently, those who had been recruited in 2014 must not report for the National Police Service training institution tomorrow Sunday 12th April 2015 as earlier indicated," Esipisu said.
It has since emerged that pressure was brought to bear on the President to withdraw the directive, which had put the Executive and the Judiciary on a fresh collision course. The directive was fiercely opposed by key institutions in the justice, governance and law sector.
Judicial Service Commission, the Independent Police Oversight Authority, Commission on the Implementation of the Constitution and the Law Society of Kenya pushed hard against the directive which would have seen the recruits report for training today.
It is understood that several rounds of meetings were held in the Office of the President and State House to agree on how best to handle the matter as the institutions stood their ground. It was then agreed on Friday that the National Police Service Commission would "clarify" the matter.
The Law Society of Kenya had trained its sights on Attorney General Githu Muigai over the directive. The AG is the principal legal advisor of the government. The President however has another advisor on legal and constitutional affairs in Abdikadir Mohamed.
"The AG is either deliberately misadvising the President or is failing to be firm in his defence of the law within the Executive. In other jurisdictions, the AG would have to resign because such a violation goes to the core of the rule of law," LSK chair Eric Mutua told The Standard on Sunday.
On Tuesday, CIC through its chair Charles Nyachae, wrote to Boinet advising him against obeying the President's directive.
"While the commission is sympathetic to the concerns of the Executive to fast-track the recruitment of additional personnel in the security sector in light of the country's pressing security concerns, we respectfully request that such recruitment respect the law including abiding by any subsisting court orders," Nyachae said.
The advisory asked the IG to consult with all other state offices involved in the matter including IPOA, NPSC and the AG to ensure the recruitment accords with the law. IPOA stood its ground that it cannot consult on the basis of an illegality.
"We draw your attention to Article 3(1) which obliges every person to respect, uphold and defend the Constitution and Article 245(2)b which gives you the ultimate responsibility for the command of the service," CIC's letter copied to the AG, NPSC and IPOA said.
After dodging inquiries on where he stood on the President's directive, Muigai came out on Tuesday to cryptically announce that "nothing would be done to compromise the President's directive or the court process". He spoke at an inter-ministerial press briefing.
"The ministry of Interior, the IG, Independent Police Oversight Authority (IPOA), National Police Service Commission (NPSC) and the State Law Office are in active consultations to ensure the President's wish about expeditious recruitment of new officers is achieved with due regard to the existing court process," the AG said.
By yesterday, however, the President's directive had been compromised and the law upheld contrary to the AG's assertions. IPOA boss Macharia Njeru had seen it coming.
When the AG said he was in consultations with IPOA and other agencies, Njeru denied it.
"I do not know what the AG meant and neither am I aware of any consultations ongoing. It may be best to wait and see but for us there are no two ways about this. The court order against the 2014 recruitment must be obeyed," Njeru said.
Njeru said the authority did not wish to be entangled in the President's directive because the President is not party to the case. He said the authority would go for the IG, the CEO of the NPSC and the AG if they attempted to implement an unlawful directive.
"This is a very serious matter. I do not know why people are taking it as a joke. Unless you want to become a banana republic and unless you are under an emergency rule, nothing of this sort can be condoned," Njeru said.
Judiciary too felt slighted by the pronouncement by the President but was not keen to pick on a fight with the Executive, especially at a time when Kenyans are mourning loss of innocent lives, sources told The Standard on Sunday.
Chief Justice Willy Mutunga, who was away in Syracuse at the time of the directive, issued a thinly veiled disapproval of the directive while at the same time condoling with families of the Garissa University College victims.
"Our collective grief as a nation, however dark its depths, must not blind us to the reality that we are a society governed by law. Merchants of terror invest in lawlessness; the rule of law is the refuge of every Kenyan," Mutunga said in his statement.
He said the Judiciary would play its role in ensuring that due process is followed, truth pursued and justice served for victim and perpetrator alike "in this and in all other matters that are brought before the courts".
"We recognise the danger that terrorism poses, which is why the Judiciary has led dialogue with other government agencies to find a way of effectively dealing with this challenge without offending our Constitution," he said.
Later, Judiciary through its spokesman Naim Bilal issued a statement titled "chronology of events in the police recruitment case" in which it argued the case had been fast-tracked on request of the AG. State operatives had justified the President's directive on the basis of alleged delay in determining the case.
According to the chronology issued, the case was filed on August 5, 2014 by IPOA following the recruitment done on July 14, 2014. High Court Judge Isaac Lenaola made his ruling annulling the process three months later on October 31, 2014.
The AG appealed on November 17 and hearing date set for December 8, 2014. On January 15, 2015, the AG wrote to the CJ requesting that the case be fast-tracked. On February 19, 2015, hearing closed and judgement was set for May 8.
"The case has been fast-tracked and due process must be allowed to take its natural course. It is important that the judges be allowed to make the determination on the matters before them as guaranteed by Article 162 of the Constitution without appearing to exert undue pressure on them," Bilal said.
Mutua says the President's prior assurance that he would take full responsibility in the matter was inherently deceptive and defective because he is not party to the police recruitment suit whose judgement is expected on May 8.
"He was probably telling the court not to bother going for the IG, AG or the Police Service Commission but him. It does not work this way however. This country is governed by the rule of law, not executive orders," explained the LSK boss.
He said the President also knows he controls the numbers in Parliament and that an impeachment motion against him cannot go through: "He has the numbers. He knows it". Under Article 145 of the Constitution, gross violation of the Constitution or any other law is a valid ground for impeaching a sitting president.
Njeru said IPOA has since focused its mind on the April 20 recruitment to ensure it conforms to the law. He warned against using the April 20 recruitment to sanitise the President's illegal directive:
"If they want to sanitise they will be surprised. We are not fools. We have the list of the 2014 recruits. We will have more than four observers in every recruitment centre to ensure the process accords with the law," Njeru warned.
http://www.standardmedia.co.ke/article/2000158037/fury-confusion-over-uhuru-s-executive-order-on-recruits
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