A Nakuru doctor has sued President William Ruto and Attorney-General Paul Kihara Kariuki over the alleged illegal decision to single-handedly nominate Eng. Japheth Koome to the position of Inspector General of Police.
In his petition filed before High Court in Nairobi, Benjamin Magare Gikenyi, a consultant surgeon at Nakuru Level Five Hospital argues that the action of the President is illegal and unconstitutional saying the nomination should have been done by the National Police Service Commission (NPSC).
Dr Magare, who describes himself as a patriot interested in a better Kenya, a human rights defender and promoter of constitutionalism and the rule of law, accused President Ruto of interfering with judicial independence.
The doctor says unless the actions of President Ruto to nominate Koome and send his name to the National Assembly for vetting and later appointment as Inspector General of Police are stopped, the same will interfere with the confidence of the commission.
"This unconstitutional action of the President needs to be stopped for the sake of rule of law. If the same is left unabated, the independence of the Inspector General and police service commission will be lost/eroded," says the doctor in his court papers.
He says Ruto, in nominating Koome, exercised powers that are allocated to the NPSC and also failed to allow the procedure provided for in the law to be followed.
Magare wants the court to issue a conservatory order barring the National Assembly from receiving the nomination of Koome and vetting him or any other person nominated by President Ruto and the Attorney General pending the hearing and determination of the petition.
"That conservatory order of prohibition, barring the National Assembly from receiving and/or if already received from vetting, processing or performing any action and/or omission which may lead to Koome or any other person nominated by the respondents (President and Attorney General) being appointed as Inspector General of Police without due process pending determination of this application inter-parties and thereafter pending the hearing and determination of this petition or such orders of the court may issue, " Magare seeks.
The doctor further wants the court to issue an order directed to Koome or any other person nominated by the President and the Attorney General without due process from taking up the position of Inspector General pending determination of this application inter-parties.
Ruto accused of failing to follow the law
According to him, Section 12 of the National Police Act gives a procedure on how IG is appointed adding that the outlined process under the same act has not been followed when appointing Koome.
"President is giving himself powers which he does not have. Only the national police service commission initiates the process once a vacancy in the office of the inspector general becomes available. The
President has no powers to recruit the IG single-handedly, " Magare says.
He argues: "Article 245(2)(a) of the Constitution says that the Inspector General of Police shall be appointed by the President with the approval of Parliament while in sub-article (8) the constitution says that Parliament shall enact legislation to give full effect to this Article."
The Act states that whenever a vacancy arises in the office of the Inspector-General, the Commission should within 14 days by notice in the Gazette and at least two other daily newspapers of national circulation, declare the vacancy and request for applications.
The commission then considers the applications, conduct public interviews, and shortlist at least three persons qualified for the position.
After shortlisting, the commission is required to forward the names to the President within seven days for nomination.
Within seven days of receipt of the names, the President should by notice in the Gazette, nominate a person for appointment as Inspector-General from among the shortlisted names and submit the name to Parliament for approval.
The Act adds that Parliament should within 14 days after receiving the name of the nominee, vet and consider the nominee.
It may either approve or reject the nomination and notify the President of its decision.
If Parliament approves, the President is required to appoint the nominee within seven days, and should parliament reject the nominee the President should submit a fresh nomination from amongst the list of persons picked by NPSC.
He further adds that Article 3 of the Constitution states that every person has an obligation to respect, uphold and defend this Constitution.
"President Ruto‘s unilateral act of where he wakes up one morning and just makes a nomination of the IG from the skies is dictatorial, ultra vires, moot and unconstitutional, hence null and void," Magare states in his court papers.
The doctor says the nomination of Koome, who is currently Commandant of the National Police Service College in Kiganjo, failed to follow the legal procedure.
He says that if the vetting process is allowed to proceed the action of the President and the Attorney General will lead to loss of public confidence, anarchy, and outright abuse of power against independent institutions.
"It is important to maintain constitutionalism, rule of law, law and order, good governance, and protection of the constitution. Kenya is not a “banana republic’, but a country governed by laws of the country," Magare states.
The suit comes a day after President Ruto nominated Koome and sent his name to Parliament for vetting after the current Inspector General of Police Hillary Mutyambai proceeded to terminal leave.
