A government plan to place the Independent Policing Oversight Authority (IPOA) under the Ministry of Interior and National Administration has been put on hold after the High Court stepped in, setting the stage for a legal battle over the authority’s independence.
Justice David Mburu on Tuesday issued conservatory orders stopping the implementation of Executive Order No. 2 of 2023, which sought to move IPOA to the ministry that is in charge of the National Police Service, until a petition before the court is heard and determined.
The petition was filed by Jonathan Obwogi, who is challenging the legality of the executive order.
He argues that although the President has the power to reorganise government, that authority should not extend to institutions that are required by law to operate independently.
IPOA is the civilian body mandated to oversee the National Police Service. It investigates complaints against police officers, keeps watch over police operations and promotes accountability within the service.
The case asks the court to determine whether moving IPOA to the same ministry that supervises the police weakens the body’s independence and goes against the Constitution.
While granting the conservatory orders, Justice Mburu noted that all the respondents had been properly served with the court papers but had not filed any responses. IPOA, which was listed as the third respondent, appeared through its advocate and did not oppose the request for interim orders.
The court consequently allowed the application and barred the Ministry of Interior and National Administration, the Cabinet Secretary, their agents, representatives and anyone acting on their behalf from implementing or enforcing the executive order until the petition is concluded.
The respondents have now been directed to file and serve their responses within seven days. The matter will be mentioned on September 21.
Executive Order No. 2 of 2023 also contained other changes that have attracted legal challenges.
Among them was a proposal to transfer custody of the Public Seal from the Office of the Attorney General to the Head of Public Service.
However, Section 28 of the Office of the Attorney General Act places custody of the Public Seal under the Attorney General, who is the government’s principal legal adviser.
Katiba Institute moved to court to challenge that proposal, arguing that it violated the principle of separation of powers and interfered with the independence of the Attorney General’s office.
The High Court later suspended the implementation of that directive after finding that the case raised important constitutional and legal issues that deserved full hearing.
The executive order also allowed presidential advisers, including David Ndii and Harriette Chiggai, to attend Cabinet meetings.
That directive was challenged by petitioners who argued that it unlawfully expanded the membership of the Cabinet.
The High Court, however, dismissed the petition, ruling that the Constitution does not stop the President from inviting advisers or experts to Cabinet meetings whenever necessary.
The court further held that attending Cabinet meetings did not make the advisers members of the Cabinet and noted that there was no evidence showing they had been permanently included in the Cabinet.
The executive order also gave the Head of Public Service an expanded role to oversee the administration of all state corporations and established public entities.