Why Nkaissery and Boinnet should resign now

Since the disappearance of lawyer Willie Kimani, taxi driver Joseph Muiruri and boda boda rider Josphat Mwenda, there have been numerous calls for the dismissal of Interior Cabinet Secretary Joseph Nkaissery and Inspector-General of Police Joseph Boinnet. The calls have intensified since the bodies of the victims were discovered four days ago.

Various studies show that killings by the police are not unusual. Innocent people disappear and many are tortured. Most people are terrified of an encounter with the police, and prefer to bribe them rather than insist on their legal rights. Many Kenyans regard their country as a police and military state, a legacy of colonialism. Kenya is now widely recognised as a haven of the impunity of state officials.

Attempts to implement reforms in the administration and behaviour of the police are derided by Nkaissery, who shows scant respect for the Constitution, while Boinnet has failed to assert his constitutional role as the head of a critical, independent service and seems to acquiesce in instructions from the Executive.

In many democratic countries, more ministers lose office by resignation than by dismissal. Reasons for resignation include ill-health, retirement, disagreement with the government (fairly common), loss of support of the ruling party or the legislature, aspersions on integrity or competence, and major scandal in the ministry.

In many cases, the minister is not directly responsible for negligence or incompetence, but takes responsibility for the failure in the ministry.

Because of the nature of our politics (including the orientation towards personal aggrandisement), there are few instances of resignation of Cabinet secretaries.

There have been very few sackings in Kenyan history, again because of the nature of our politics.

STRONG POLITICAL SUPPORT

The President’s scope for manoeuvre is greater under the 2010 Constitution because relatively few Cabinet secretaries have strong political support — Uhuru has already sacked several.

On the other hand, the National Assembly has greater power to remove a CS than before. It can ask for the removal of a CS for gross violation of the Constitution or law, a criminal offence under national or international law, or gross misconduct.

A select committee of the National Assembly must examine the evidence, and if the House finds that there are sufficient grounds for dismissal, the President must dismiss the CS. A CS could also be investigated under other procedures, such as that of the anti-corruption authority.

The grounds for removal of the Inspector-General are set out in the Constitution.

The constitutional grounds for removal are broader than for that of CSs by the National Assembly. Most involve clearly serious misbehaviour, but there is also one worrying and vague ground: “any other just cause”.

This must be read as meaning something as serious as the specific reason listed, and should not be used by the President to dismiss an IG on political grounds, same way he can dismiss a CS.

There is ample reason for both gentlemen to resign, or be dismissed. Both have violated the Constitution: One by grossly exceeding his limited authority over the IG, and the IG for obeying those unconstitutional directives.

The resignation of one or both of them would have a positive impact on our political culture and morality — in the case of the IG, showing the courage to take responsibility for the horrible crime of members of staff for whose conduct he accepts responsibility. In the case of Nkaissery, an acknowledgment that his war-like attitude does the country no good.

Prof Yash Pal Ghai is an expert in constitutional law.

This article was published in the Daily Nation on 6th June 2016

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