Executive Must Trust Their Choice Of Security CS and IG To Deliver

The role of County Governments in security governance in Kenya has been a critical policy question since the inception of devolution. Kenya has experienced insecurity and attacks in Tana Delta, Suguta Valley, Garissa, Westgate Shopping Mall, Bungoma, Kitui, Moyale, Mpeketoni in Lamu, Mandera, and Baringo.

This essay advances three key arguments: Security is a devolved Executive function; President Kenyatta has unconstitutionally recentralized security; and Kenyatta has taken policy and administrative measures that undermine constitutional democracy and county roles in security.

Executive Powers

First, the Constitution guarantees security as a human right and devolves Executive powers including security. The National and County Government can perform this function through mutual cooperation and consultation as envisaged under Article 6 of the Constitution. Some legislation envisages security as a concurrent function. For instance, the National Police Service Act provides for county policing.

Alternatively, we argue that County governance is inextricably intertwined with national security functions. Security as a human right under Article 29 is strengthened by imposing duties on the President as President, as Commander- in-Chief, or as Chair of the National Security Council. Duties are also imposed on the Executive and Government to ensure security. Just like the Magna Carta 1215, the fact of public taxation is a foundation of human rights and security. The Constitution has also fundamentally altered the security organs that existed under the 1969 Constitution.

The Kenya Police Service, Administration Police Service and the National Intelligence Service are responsible for internal security. So far, these agencies are operated as if they are only answerable to the President or National Government. These trends by President Kenyatta are the cornerstone of the emerging constitutional (dis) order in Kenya. Kenyatta is reversing constitutional gains made under the new constitutional order faster than his preceding biological, political and godfathers of Kenyatta, Moi and Kibaki.

For instance, both Inspector Generals of Police Mr. Joshua Boinett and his predecessor Mr. David Kimaiyo have operated as if they should be taking orders from Kenyatta. Boinett attempted to implement Kenyatta’s unconstitutional order that 10, 000 recruits report for training contrary to a court order. And following the attack at Mpeketoni in Lamu, Kimaiyo imposed a curfew and gave credence to Kenyatta’s partisan and tribal statements.

Kenyatta had alleged that the attack in Lamu was politically motivated ethnic violence against a Kenyan community (Kikuyu) and that it was not an Al Shabaab terrorist attack. Then attacks of non-Kikuyu followed in Mombasa and elsewhere with no protection from an ethnicised security system.

Interior Security Minister Hon. Maj-Gen (Rtd) Joseph Nkaissery addressing the media after the recent terrorist attack at Garissa University

 Information Sharing

Hence County Governments are denied authority on security, even on logistics and information sharing, of the security function. The refusal to consult, cooperate and coordinate with the County Government and security structure has contributed to ineffective response as was witnessed in the Garissa University College massacre.

Second, President Kenyatta’s Government is increasingly ignoring key constitutional provisions on security. The Kenyatta Presidency sponsored the Security Laws (Amendment) Bill, 2014, which he promptly assented to. Significantly, High Court Judge Justice George Odunga declared eight Sections of the Security Laws unconstitutional.

The Court of Appeal has substantially upheld Justice Odunga’s decision. Kenyatta in a move to re-introduce the discredited provincial administration assigned County Commissioners new roles and made them answerable only to the President and the National Government.

Progressives argue that this contravenes the Constitution and undermines the mandate and jurisdiction of the Officer Commanding Police Division, the Governor, and the relevant County Executive Committee. This also contravenes section 17 of the Sixth Schedule, which requires the National Government (not the President alone) to restructure the provincial administration to respect the devolved system of governance within five years after the effective date (my emphasis).

Third, the Government is adopting policy measures that undermine the constitutional design and intendment on security. Indeed Kenyatta is systematically reversing constitutional gains made under the Constitution as well as obstructing justice. Kenyatta aerially supervised the destruction of a ship, which was to be used as evidence in the case of Republic v. Yousuf Yaqoob & 11 Others [2014]. Such actions exemplify Presidential lawlessness and are a threat to constitutional democracy, the Rule of Law and security in Kenya. This is also an invitation to civil disobedience and even revolution or the breakdown of constitutional order.

The Kenyatta Presidency is also endangering constitutional democracy by disregarding civilian oversight of security agencies as required by the Constitution. For example, the President wears military uniform in public and has increasingly militarised the public service and internal security. Remarkably the Constitution subject security to civilian oversight. Civilian oversight is growing to be an important component of external police accountability in many constitutional democracies.

In order to address these security challenges, Governors who are democratically elected are in a better position to handle security at the county level. This will help entrench the constitutional requirement that National and County governments should be inter-dependent and conduct their mutual relations on the basis of consultation and cooperation. Currently, the Governor’s role that relates to security is restricted to chairing the County Policing Authorities (CPAs) whose function is mainly oversight without any role in security administration. The CPAs are yet to be operationalised.

In conclusion, the Presidency and the National Government must implement the Constitution and involve the County Government in addressing security. The practice in India, Canada, US and Nigeria with devolved systems indicates that county and public participation will help improve security in Kenya.

Prof Ben Sihanya is a Scholar, ©, Intellectual Property, Constitutional Democracy & Education Law at the University of Nairobi Law School and Public Intellectual, Mentor, Poet and Advocate at Sihanya Mentoring & Innovative Lawyering sihanyamentoring@gmail.com