There and Back Again? Police Reforms Through the Prism of the Recruitment Decisions in the High Court and the Court of Appeal

Abstract

On 30th June 2014, the National Police Service Commission (hereinafter NPSC or the Commission) in exercise of its powers under Article 246 of the constitution put out an advertisement in the local dailies seeking to recruit 10,000 suitable and qualified candidates as Police Constables. The recruitment exercise was to be carried out nationwide in all 294 recruitment centres on 14th day of July 2014. This was to be the largest National Police Service recruitment exercise in the country’s history. After the exercise, a plethora of complaints arose regarding the manner the exercise was carried out, in particular, allegations of massive corruption were made against the sub county recruitment committees which were entities set up by the Commission at sub-county levels to conduct the recruitment exercise at the centres. Following receipt of these complaints and on the basis of its own observations from monitoring the exercise, the Independent Policing Oversight Authority (IPOA), a state agency established under the Independent Policing Oversight Authority Act, Number 35 of 2011, with an oversight mandate over the National Police service, recommended to the Commission to cancel the entire exercise and conduct fresh recruitment. The Commission declined to repeat the exercise and instead formed a multi-agency working committee to investigate the claims. The working committee released its report in which it recommended nullification of the exercise in only 36 of the 294 centres. Dissatisfied with the position adopted by the Commission, IPOA filed a petition before the High Court, seeking inter alia nullification of the entire recruitment exercise. On 31st October 2014 the High Court delivered its decision in which it nullified the entire recruitment exercise and directed that a fresh recruitment exercise be conducted in tandem with the provisions of the Constitution and the National Police Service Commission Act. Dissatisfied with the judgement of the High Court, the Commission on the 17th November 2014 lodged an appeal before the Court of Appeal. However before the Court rendered its decision, following pressure from the executive, the Commission on 20th April 2015 conducted another recruitment exercise . The Court of Appeal on the 8th day of May 2015 rendered its judgement on the 2014 recruitment exercise in which it upheld the high court decision and dismissed the appeal.The case before the High Court and the Court of Appeal raised important legal issues that impact police reforms in Kenya. In particular the High Court considered issues regarding, transparency, accountability public participation and discrimination of women in the recruitment of police officers and both the High court and Court of Appeal considered the question of delegation of constitutional powers and whether recruitment powers constitutionally reposed upon the Commission could be delegated to other entities.This paper analyses the court’s determination on these key legal issues that were canvassed both before the High Court and in the Court of Appeal. In light of that analysis the paper interrogates how the courts’ determinations impact police reforms in Kenya in particular with regard to recruitment of police officers.The first part of the paper therefore briefly looks at police reforms in Kenya focusing on the recruitment of police officers as a key pillar of police reforms and the rationale behind reforms to the recruitment process. The second part of the paper looks at the recruitment case before the High Court and the Court of Appeal. The paper focuses on key legal issues that came up before the courts impacting on police reforms; transparency, accountability, public participation, discrimination and delegation of constitutional powers and how the courts analyzed and dealt with these issues.The third part considers how the courts’ determinations have impacted police reforms with regard to recruitment especially in view of the second recruitment exercise carried out in April 2015.The last part of the paper concludes by interrogating whether the intended entrenchment of the reforms in the recruitment of police officers was achieved through the petition or was it a case of there and then back again.