Police Commissioner Mathew Iteere and the top police leadership are in office illegally, the chairman of the Constitution Implementation Commission Charles Nyachae warned yesterday. Nyachae said decisions made by Iteere, his deputy Francis Okonya, CID boss Ndegwa Muhoro and his deputy Gideon Kimilu since August 30, 2011 might be challenged in court as they are not backed by the constitution.

Nyachae said the police are yet to conform to the new constitution and the National Police Service Commission Act which President Kibaki assented to in August last year. "We are in a precarious situation as the entire police command could be impeached for violation of the constitution. The entire police command is of doubtful constitutional validity especially at the time when the country is preparing for the general elections," Nyachae said.

The Act spells out how the new police force is supposed to function, along with its structures and operations under the new constitution. The current police force is supposed to be replaced by a new National Police Pervice with an Inspector General who is responsible for both Administration Police and regular police. He will have two deputies responsible for each of the two branches.

Nyachae said the new constitution promulgated on August 27, 2010 does not recognise the position of Commissioner of Police and the transitional clauses envisaged an Inspector General being in office by last August. He said failure by the police to conform to the new laws amount to a violation of the constitution and the police can therefore be deemed to be in office unconstitutionally.

"The way out of this quagmire is for the police to conform to the new constitution to avoid a situatation where the validity of the top command of the police is considered doubtful," Nyachae said. The appointment of an Inspector General stalled last month after Parliament rejected the nominees for the Police Service Commission which is supposed to recruit the Inspector General and his two deputies.

The Parliamentary Committee on Administration and National Security rejected President Kibaki's nomination of Amina Masoud as the commission's chairperson with Esther Chui-Colombini, Ronald Musengi, James Atema, Dr/Maj Muiu Mutia and Mary Owuor as PSC members. The committee said President Kibaki had not consulted with Prime Minister Raila Odinga as required under the constitution.

The committee said Kibaki's nominees did not meet the threshold qualifications equivalent to being appointed a High Court judge as per the constitution. The committee referred the matter back to Kibaki for fresh nominations. The President is yet to issue a new list of nominees. Nyachae warned that until an IGP and his deputies are legally appointed, only an officer commanding a police station can issue legal orders.

Section Three of the constitution's transitional clauses says that the President shall "within 14 days after commencement of this Act" constitute a selection panel comprising members from the Office of the President, Office of the Prime Minister, Judicial Service Commission, Ethics and Anti-corruption Commission, Gender Commission, National Commission on Human Rights and Association of Professional Societies of East Africa and Public Service Commission.

The panel interviewed candidates for the National Police Service Commission between January and February 2012. Those shortlisted included Ronald Musengi, a brother of the late Internal Security minister George Saitoti, who scored 84.2 percent in the interviews.

Others were Lawrence Nyalle (85.9 percent), Esther Colombini (85.2 percent), James Atema (78.5 percent), Bernard Mbai (77.1 percent), Bilow Khalid (72.6 percent), Mulu Mutia (80.9 percent), and Mary Owuor (80.5 percent). Those shortlisted for the post of commission chairperson were Johnston Kavuludi (77.2 percent), Murshid Mohammed (75.2 percent) and Amina Masoud (61.1 percent).

President Kibaki chose six from this shortlist but they were eventually rejected by Parliament. Yesterday, senior counsel Paul Muite said the delay in appointment of the IGP and his deputies was a ploy by the executive. "The executive wants to create a crisis so that it can appoint people of its own choosing and without reference to Parliament, the constitution or the law," he said.

Muite said all police commanders above the rank of assistant commissioner are now in office illegally because the new constitution does not recognise these ranks. Nine human rights groups yesterday called on President Kibaki and Prime Minister Raila Odinga to order the prompt appointment of the Inspector General and his two deputies.

"The continued uncertainty and delay in the National Police Service Commission is a blatant violation of the constitution as stipulated under the Fifth Schedule which requires national security organs and command of the National Police Service to be appointed within two years of the promulgation of the constitution," said the activists.