The Deputy Inspector General of the National Police Service Eliud Lagat at the Bunge Towers Nairobi on November 7, 2024.
The Deputy Inspector General of Police, Eliud Lagat, in a public communication Monday, announced that he had "stepped aside" to facilitate ongoing investigations into the killing of Albert Ojwang while in police custody. He said his deputy would assume the responsibilities of the office until the inquiry is concluded.
Stepping aside in the Kenyan context has been a ruse for "calming nerves.” Kenyans will recall that we have witnessed before such hollow spectacles that are only but intended for theatrical purposes. Public officers have in the past ‘stepped aside’, only for them to resume duties as if nothing ever happened.
The most important question is the Constitutional and Legal character of this act called stepping aside...What is its import? Section 20 of the National Police Service (NPS) Act deals with filling of a vacancy in that office. Section 20(2) envisages that in the event of a vacancy occurring, the President must make an appointment (as a replacement) in accordance with sections 12 and 13 of the Act, which govern the appointment process.
These provisions of the Act with respect to the appointment of the Deputy Inspector General of Police must be read alongside article 245(3), which establishes the portfolios of Deputy Inspector Generals of the Kenya Police Service and the Administration Police Service.
Articles 73 and 75 of the Constitution of Kenya are fundamental in promoting integrity, accountability, and ethical governance within public offices. Article 73 establishes the principles of leadership and integrity, binding all state officers to uphold values such as selflessness, impartiality, and accountability in serving the public. It mandates that leaders avoid conflicts of interest, misuse of office, and unethical conduct, ensuring that their actions align with the public good.
Article 75 further enforces these standards by prohibiting state officers from engaging in corrupt practices. It also restricts them from holding private interests that could compromise their public duties. Violations of these provisions amount to a betrayal of public trust.
Together, these articles set out Kenya’s public commitment to good governance by setting a strict ethical framework for public officials, fostering transparency, and deterring corruption in public service.
These principle provisions of the Constitution must be read alongside article 244, another principle provision, which mandates professionalism and the promotion (and fostering) of relationships with the broader society. The most important question is the constitutional and legal character of this act, so- called “stepping aside”.
What is its import? Section 20 of the NPS deals with vacancy and filling of a vacancy in the office of Deputy Inspector General of Police. Section 20(2) envisages that in the event of a vacancy occurring, the President must make an appointment (as a replacement) in accordance with sections 12 and 13 of the Act.
A vacancy in law is a state of lacuna that must be filled by a substantive holder. By temporarily keeping away, at least in rhetoric and in public spectacle, “stepping aside” creates no vacancy as the substantive office holder is still in office. The office is not vacant for purposes of the law and the Constitution. Therefore, what the Constitution and the law require is a resignation.
What happens in mature liberal democratic settings is resignation. The act of resignation is part of constitutional convention. Resignation, when exercised by public officials, particularly those in high office, serves as a powerful mechanism to fortify constitutionalism. Constitutionalism as the principle from which government authority is derived and limited (by a body of fundamental law (the constitution)), ensures accountability, the separation of powers, and the protection of individual rights.
When officials and leaders voluntarily step down in adherence to constitutional norms, legal decisions, or ethical imperatives, they reinforce the supremacy of the rule of law over personal or political interests. A resignation in the face of (alleged) misconduct, loss of legitimacy, or constitutional breaches demonstrates that no individual is above the law. It affirms that public office is a trust granted by the people and the constitution, not an entitlement. For example, if a leader resigns after a judicial finding of constitutional violations, it upholds the judiciary’s role as an independent arbiter of the law. Similarly, if an official steps down following a loss of public confidence or an electoral defeat, it reinforces democratic accountability—a core tenet of constitutional governance. Moreover, resignation can prevent constitutional crises. Leaders who cling to power despite legal or ethical transgressions often undermine institutions, erode checks and balances, and weaken public trust. By contrast, an honourable exit preserves the integrity of the state, ensuring continuity and stability under constitutional order. It sets a precedent that power is temporary and contingent on lawful conduct, deterring future abuses. In essence, resignation acts as a self-correcting mechanism within constitutional systems. It signals that the principles of legality, accountability, and democratic governance outweigh any single officeholder’s ambitions, thereby strengthening the foundations of constitutionalism itself.
Mr Lagat must not merely "step aside" but resign outright, anything less undermines the rule of law and makes a mockery of constitutional accountability. If public office is truly a public trust, then lingering in the shadows of power while under the haze of suspicion for the most heinous of crimes is an affront to constitutionalism and justice. Resignation, not evasion, is the only honourable path. The law demands it; the people deserve it.
Evans O. Ogada is an Advocate, Researcher and Editor-in-Chief of The Platform for Law, Justice and Society
