Malombe faces pressure over rising insecurity in Kitui as NLP demands action

Kitui Governor Julius Malombe is facing public pressure over rising insecurity, highlighting a persistent legal and operational tension in Kenya's devolved governance structure. While the Constitution of Kenya, 2010, vests primary responsibility for national security and policing in the national government, county governments, led by governors, are expected to play a role in local security management. This article examines the legal framework governing security responsibilities, particularly the advisory functions of County Policing Authorities (CPAs) chaired by governors, and the inherent limitations on a governor's direct command over police forces. It underscores the challenges arising from the constitutional division of powers and the practical demands for local accountability.

Kitui Governor Julius Malombe recently found himself under scrutiny following accusations by NLP leader Augustus Kyalo Muli regarding his perceived silence on escalating killings and insecurity within the county. This public pressure on Governor Malombe is not an isolated incident but rather a recurring theme in Kenya's devolved system of government, where county leaders often face demands for action on security matters despite the constitutional allocation of policing powers primarily to the national government. The incident in Kitui brings to the fore the complex legal and operational dynamics surrounding security governance at the county level.

Kenya's Constitution of 2010 established a devolved system of government, creating 47 county governments with distinct functions. However, the Fourth Schedule of the Constitution explicitly assigns police services and the courts to the national government, thereby retaining security as a national function. The National Police Service (NPS), established under Article 243 of the Constitution and operationalised by the National Police Service Act, 2011 (No. 11A of 2011), is the primary law enforcement organ in Kenya, operating under the independent command of the Inspector-General. This clear constitutional demarcation means that county governments do not have direct control over the deployment or operational command of police forces within their jurisdictions.

Despite the national government's primary mandate over security, the National Police Service Act, 2011, introduced a mechanism for county-level engagement through the establishment of County Policing Authorities (CPAs) in each county, as per Section 41. These CPAs are designed to foster community involvement in policing and are tasked with developing proposals on priorities, objectives, and targets for police performance, monitoring crime trends, and promoting community policing initiatives. Significantly, the county governor chairs the CPA, and its membership includes representatives from national security organs and the community. However, the role of the CPA is largely advisory, providing a platform for local input into policing strategies rather than direct operational command.

This advisory nature creates a significant gap between public expectation and a governor's actual legal powers. While governors are responsible for ensuring public health and safety and may collaborate with local law enforcement, they lack the authority to directly deploy police or issue operational orders. This has led to consistent calls from governors for greater control over security matters, arguing that local leaders are better positioned to address county-specific security challenges. The situation is further complicated by the continued presence of County Commissioners, who are national government appointees and chair the County Security Committees, possessing powers to order police deployment in consultation with the national command, a committee on which governors do not sit.

Case law and practical implementation have often highlighted this tension. While the Constitution is explicit, the reality on the ground often sees security emerging as a concurrent function, with both national and county governments co-financing security-related activities. For instance, some counties have invested in security vehicles or equipment, which are then used by the national police, blurring the lines of responsibility. This pragmatic approach, while necessary for effective security provision, can sometimes lead to constitutional ambiguities and accountability challenges. The operationalization of CPAs, as directed by President William Ruto in January 2023, aims to strengthen this collaboration, but the fundamental division of command remains.

The pressure on Governor Malombe in Kitui underscores a fundamental challenge in Kenya's devolved governance: reconciling local accountability for security with a nationally controlled police service. Practitioners must understand that while governors chair County Policing Authorities and play a crucial role in advocating for their constituents' security needs, their direct operational powers over the police are constitutionally limited to an advisory capacity. This necessitates a strategic approach to engagement, focusing on leveraging the CPA platform for policy influence and fostering strong collaborative relationships with national security agencies rather than attempting to exert direct command.

Moving forward, legal professionals should monitor legislative developments and judicial interpretations that may further clarify the roles and responsibilities of county governments in security matters. The ongoing dialogue between national and county governments regarding security provision, and the effective operationalization of CPAs, will be critical in addressing public concerns and ensuring a more coordinated response to insecurity across Kenya's counties. Attorneys advising county governments or community groups on security issues must navigate this intricate legal landscape, emphasizing collaboration and adherence to the established constitutional and statutory frameworks.