• 22 women claiming to have lost their sons or husbands through extrajudicial killings want a commission of inquiry set up.
• IPOA says orders sought by the women will be in vain since the President is not bound by advice of Attorney General.
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The Attorney General cannot be compelled to advise the President to set up a commission of inquiry into extrajudicial killings, IPOA has said.
In response to a suit filed by 22 women claiming to have lost their sons or husbands through extrajudicial killings, the Independent Police Oversight Authority says the decision to set up a commission solely rests with the President.
IPOA through lawyer Jeremiah Arodi said the women should petition the President directly.
“Whereas the issue of unlawful and unjustified killings by some officers of the National Police Service is a matter of public concern, the decision to set up a commission of inquiry solely rests with the president and is discretionary. But in any event, even the President is not bound to accept such a request,” he said in court documents.
IPOA maintains that the orders being sought by the 22 women would be in vain since the President is not in any way bound by the advice of the Attorney General.
In November last year, the International Justice Mission alongside the 22 women petitioned the High Court to have the Attorney General advice President Uhuru Kenyatta to establish a judicial commission of inquiry into extrajudicial killings.
They want the team formed to conduct independent and effective investigations into documented cases of killings by police officers.
The petition by IJM cites 22 cases where the excessive use of force has been justified by the police, even in cases involving minors. The families say despite some form of probe initiated, the families never get to hear from the police.
IPOA yesterday admitted that some of complaints cited IJM’s petition were taken up for investigations and they are currently at an advanced stage.
“Whereas we acknowledges that investigations should be concluded promptly, we also admit that there are numerous challenges that are faced in the course of undertaking investigations,” the agency said.
The challenges, according to IPOA, include key witnesses fearing reprisals from the police, resulting to their refusal to record statements.
There is lack of cooperation from the National Police Service, as they refuse to provide documents critical to investigations such as duty rosters, Occurrence Book extracts and arms movement register.
IPOA is listed as an interested party in the case. The AG and the Inspector General of Police who have been sued by the widows are yet to file their response.
Justice James Makau directed that they file their papers before June 18 when the case will be mentioned.
Independent Medico-Legal Unit (IMLU) and KHRC will now take part in the proceedings after they were enjoined as interested parties.
The Director of Public Prosecutions says the orders sought are not reasonable as the women do not show how the DPP has a duty in the matter raised.
“Article 157 of constitution is to effect that the DPP shall institute criminal proceedings only where a criminal offence has been committed. Petitioner has failed to disclose whether in fact a criminal offence was being committed for the DPP to invoke its powers of prosecution,” court documents say.