The Committee on the Implementation of the Constitution has threatened to go to court to challenge the appointment of the Inspector General and his two deputies.
CIC said the two Principals must abide by Section 14 of the National Police Service Act which on gender parity. Chairman Charles Nyachae yesterday said the commission is concerned that the three appointees are from the same gender.The law says, " In the entire recruitment and appointment of the Inspector General or Deputy Inspector General, the commission, Parliament and President, as the case may be shall (a) comply with the values and principles set out under the constitution, and in particular, Article 10, 27 and 232 of the constitution; and (b) ensure that at all times one of the three positions of the Inspector General and the two Deputy Inspector General is of opposite gender."
Nyachae said that the commission has written to President Mwai Kibaki, Prime Minister Raila Odinga, the National Police Service Commission and the Speaker of the National Assembly to point out the fundamental constitutional issues and requested that the appointments be halted until the threatened violation can be corrected.
" The commission is, however, concerned that in nominating three officers of the same gender for the appointment, His excellency the President and the Honourable Prime Minister violated the mandatory provisions of Section 14 of the National Police Service Act.The failure to observe this mandatory provision not only breaches the law and the spirit of the constitution but is a further assault on the gender gains which have been consolidated in the constitution of Kenya 2010," Nyachae said.
The CIC boss has appealed to President Mwai Kibaki and Prime Minister Raila Odinga to halt the process until the issue has been addressed.
" If they go ahead and make the appointments, it will be against the constitution and as CIC we have a mandate to protect the constitution. If they don't we will go to court but this will mean as a country we are not ready to abide by the constitution," the CIC boss said.
Nyachae also said that CIC was aware that there is an attempt to amend the National Police Service Act by deleting Section 14 through the Statute Law (Miscellaneous Amendments Bill) which is currently before parliament.
" Neither the CIC, nor as far as we know, the other stakeholders , were involved in the the proposed amendment. This in itself is both a violation of the constitutional process and principles, as well as as exhibition of bad faith. Such an amendment would in any event go against the spirit of the constitution and would not cure the violation that has already occurred. Those who initiated the the proposed amendments must be exposed and held accountable for their anti reform attempts to thwart the gains women and all Kenyans achieved through the promulgation of the Constitution of Kenya 2010," Nyachae said.
He urged members of parliament to intervene and exercise their legislative authority in the public's' interests if the executive is unable or has failed to defend the constitution.
" It will be unfortunate the that the last thing this parliament does is to violate the constitution. From where i stand a number of offices have a constitutional and legal obligation to protect this constitution. There is absolutely no reason why the there should be any delay because the NPSC gave a list that includes all genders and changes can be done within a day," the CIC boss told journalists in his office.