Maraga Report: Police independence lacking

The national taskforce on reforms called for a competitive hiring process of top commanders of the National Police Service (NPS), a move that could have placed the position of Inspector General (IG) and two deputies under fresh scrutiny.

The taskforce under the leadership of retired Chief Justice David Maraga found that, the Security Laws (Miscellaneous Amendment) Act, 2014, was in bad faith meant to weaken NPS independence, exposing it to political mischief and manipulation.

Further, all officers of the rank Senior Superintendent of Police and above were to be subjected to a fresh round of vetting in a raft of recommendations, including uniform procurement guidelines and the establishment of Police Reforms Unit to track the reforms process intended to make NPS better among several others aimed at enhancing efficiency, accountability, integrity and professionalism.

Before the law was changed by the Security Laws (Miscellaneous Amendment) the IG was recruited through a competitive, transparent process by the National Police Service Commission (NPSC) that is supposed to oversee human resource management, recruitment, training and discipline of officers.

Under the original National Police Service Act, 2012 the process of hiring the IG was rigorous entailing advertising of the vacancy; the Commission conducting an open shortlisting exercise and interviewing applicants who met set requirements; forwarding three names to the President for nomination; the President nominating one name and forwarding the same to Parliament for vetting and approval; and finally, once Parliament has approved, the President appointing the candidate.

This is the process that IG Douglas Kanja  could have undergone had the Maraga Report that was handed over to President on November 16, 2023, been implemented immediately. Kanja took over the reigns for NPS in on September 19, 2024, almost a year later after the taskforce completed its work.

The 2014 amendments removed NPSC’s role of competitively advertising, interviewing, and shortlisting candidates for the position of IG. Instead, the law was altered to give the President full powers to directly nominate the hold of the office, ignoring the competitive process initially placed under the mandate of the Commission – the employer.

The oversight, according to the Maraga report, stripped police of its independence as espoused in the Constitution. The taskforce called for the immediate legislative reinstatement of constitutional requirements for competitive hiring of NPS top commanders.

“Cognisant of the  High Court decision  in Coalition  for  Reform and Democracy  (CORD)  and  2  Others  v  Republic  of  Kenya  and  10  others, the Taskforce recommends and urges  the Cabinet  Secretary  to  immediately  develop a  legislative  proposal  for Parliament to enact  legislation to  reinstate  the constitutional requirement  for  an  open,  transparent  and  competitive recruitment  of  the  IG,  the  Deputy   Inspectors-General, and  the  Director of Criminal Investigations as was provided for under section  12,  13  and  30  of  the  NPS  Act  before the 2014 amendments,” says the Report that was made public by Maraga himself who accused the Executive of is still locking it away despite the public having a right to consider and debate its contents and recommendations amid the current political highly charged environment threatening security.

According to Maraga, the central finding in the Report were not a suggestion, but a constitutional command that NPS must be independent.

That, a partisan police force was a root cause of the slaughter of 2007/2008, and that Kenyans should not forget that the 2010 Constitution’s independence clauses were written in that blood.

“Restore competitive recruitment of the Inspector-General, the Deputy Inspectors- General and the Director of Criminal Investigations. Make fresh appointments under Articles 232, 239, 244, 245 and 246. Kenyans, please remember the old adage; he who pays the piper calls the tune,” said Maraga when he released the Report.

Competitive hiring of the IG, DIGs and DCI boss, the taskforce argued, would guarantee professional selection and appointment of persons suitable for the positions, and further enhance public trust in the leadership of the Service that continues to face legal, policy, administrative, institutional, and operational constraints.

The taskforce found out that increased budgets, better salaries, equipment and tools alone   will not improve police morale or service delivery unless radical structural changes are undertaken to transform the leadership, culture and values.

“The   Constitution   envisions   that   the   leadership   of   NPS   and   the   process   of   appointing   or selecting   persons   to   positions   of   leadership   in   the   Service   will   be   underpinned   by transparency, openness, public   participation, and   adherence   to   applicable   constitutional values and principles,” say the Report.

The taskforce demanded that persons appointed to positions of leadership possess values, principles and attributes that can facilitate transformation of the Service in accordance with the Constitution and applicable laws.

Further, the Report requires a fresh vetting of officers from the rank of Senior Superintendent of Police (SSP) and above. The exercise was shelved in 2019 by the then NPSC chairman Eliud Kinuthia who the process violated the rights of officers.

“We have listened to them (officers), we have heard their concerns over the way the vetting was done in full view of the camera, sometimes asked personal questions, as a Commission we don’t want to do that again. We have considered their plight and such, we are reforming the process,” said Kinuthia.

During the reign of his predecessor Johnstone Kavulundi, police officers across the country were subjected to public vetting that led to sacking of hundreds of them found to be unfit to hold public office. 

The vetting, the Maraga team noted  was to address  some of the challenges facing police, and  in  particular  to  ascertain   whether  the   current   senior   officers   of   NPS   have   the   competence,   integrity, experience,  suitability  and  attributes  necessary  to  drive  the  requisite  reforms and  achieve  the  vision  of the Service.

The Maraga Report want this procedure returned in a bid to provide NPS with a fresh start and opportunity to address the challenges that have bedeviled the Service. 

“However, the vetting of serving police was halted, reportedly because of a lack of good-will and resources   to support   the   process.   Furthermore, the provisions   in   the   NPS   Act   that provided   for an   open, transparent, and competitive recruitment   of the   IG   and DIGs were repealed in 2014 following the enactment of the Security Laws Miscellaneous Amendment Act. 

“These two events had the effect of denying Kenyans an opportunity to not only ensure reform of NPS but also provide a means of assurance that the leadership of the Service would reflect the values, principles, and expectations enshrined in the Constitution,” says the Report.

During collection of views from the public, it was found that Parliament had failed in its critical role of oversight and ensuring accountability of the police leadership. 

Despite the National Assembly having the duty to ensure that public concerns and   accountability questions regarding   policing   services   are   adequately addressed, MPs looked the other way, and sometimes did not ensure that NPS is facilitated with resources and appropriate legal and policy frameworks to ensure efficient operations.

“Parliament and the relevant parliamentary committees have demonstrably failed to hold the IG and National Police Service to account.  The Taskforce recalls, for instance, that Parliament has   not   taken   the leadership   of   NPS   to task   over   reported   cases   of disappearance of ‘persons of interest’, which could even have warranted a public inquiry,” states the Report.

The NPSC complained that is functions had been taken over by the leadership of NPS. However, taskforce faulted the Commission for failing to implement measures   that would enable it to perform its constitutional and statutory obligations. 

“For instance, NPSC has acquiesced   to   the   continued   usurpation   of   its   functions   by   the   leadership   of   NPS   and   has remained timid in the entire process, thereby exacerbating the vices that it was established to redress.  Members of NPS, especially junior officers, perceive the leadership of NPSC as out of touch and uninterested in addressing their legitimate concerns,” says the Report.

Further the relevant Cabinet Secretary should take urgent steps to operationalise the Police Reform Unit  in line with Section   126 (2) (b) of the NPS Act. 

“This will   not   only provide a constant reference point  and  pulse check on  the  reform  journey  but will  also  provide an  avenue  for  active  follow up  and ensure  that  all reforms  envisaged  are  followed  through  to  implementation by  concerned  institutions,” says the Report that is likely to stir debate on police accountability, professionalism, training and integrity.