Law Society of Kenya v Attorney General & another [2021] eKLR the Inspector General. And, as stated by the Supreme Court In the Matter of Interim Independent Electoral Commission case (supra), the Inspector General is ‘…not to take orders or instructions from organs or persons outside their [his/her] ambit….’ 90. This discussion has defined NSAC as a person under Article 260 of the Constitution. From the definition of a ‘state organ’ under the same provision, the Cabinet is an organ for it is an office or body established in Article 152 of the Constitution. The Cabinet is distinct from its constituents who are the President, the Deputy President, the Attorney General and the Cabinet Secretaries. 91. Article 245(4) of the Constitution is categorical that no person, save the Director of Public Prosecutions, can give any orders or directions to the Inspector General relating to the investigation of any particular offence or offences; the enforcement of the law against any particular person or persons; or the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service. Therefore, not even the NSAC, the Cabinet or the constituents of the Cabinet can give directions on how the Inspector General is to discharge his duties. 92. Two questions now arise which beg for answers. They are whether NSAC and the Cabinet are part of the National Police Service and whether NSAC and the Cabinet, by ratification, issued any directives or orders to the Inspector General of Police or the National Police Service. The answer to the first question is in the negative. The Cabinet is an independent office or organ under the Constitution just like the Inspector General. None of the two is part of the other. NSAC is also not part of the National Police Service. 93. In answering the second question, I have carefully scrutinized the statement issued by NSAC and ratified by the Cabinet. The statement is conspicuous that it directed the law enforcement officers (who is the National Police Service in this case) to investigate particular offence or offences and also to enforce the law against particular person or persons. NSAC and the Cabinet, hence, issued directives and orders to the National Police Service on how to conduct its duties. 94. The directives and orders are in contravention with the Constitution. In particular, they contravene Article 10(2)(a) on the rule of law and Article 245(2)(b) and (4) of the Constitution. 95. In sum, the directives issued by NSAC on 7th October, 2020 and ratified by the Cabinet on 8th October, 2020 are unconstitutional, ineffective and void ab initio for directing the law enforcement officers on how to discharge their duties. (ii) Whether Section 5 of the Order Act is constitutional: 96. As correctly submitted by the Respondents, the constitutionality of Section 5 of the Order Act was settled by the Court of Appeal in Nairobi Civil Appeal No. 261 of 2018 Haki Na Sheria Initiative v Inspector General of Police & 3 others case (supra). The Court held that the impugned provision is constitutional. 97. This Court is bound by the above finding of the Court of Appeal unless the decision is distinguishable. In this matter I will not attempt any differentiation. However, I hold a contrary position to the one rendered by the Court of Appeal. I am also aware that the Court of Appeal has previously rendered different verdicts on similar issues. For instance, on 18th October, 2013 in Joseph Njuguna Mwaura & 2 Others v. Republic (2013) eKLR the Court of Appeal held that death sentence is constitutional whereas on 30th July, 2010 in Godfrey Ngotho Mutiso v. Republic (2010) eKLR the Court held that death sentence is unconstitutional. In another scenario, in Evanson Muiruri Gichane v. Republic (2010) eKLR and David Mwangi Mugo v. Republic the Court of Appeal held that the mandatory nature of death sentence is unconstitutional while in Criminal Appeal Nos. 87, 88 and 89 of 2007 Joseph Baariu Imiemba & 2 Others v. Republic the Court held that the mandatory nature of death sentence is constitutional. However, the conflicting decisions were settled by the Supreme Court in Petition Nos. 15 and 16 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR. 98. Given the possibility of this issue being handled by either a different bench of the Court of Appeal or by the Supreme Court in future, and for general jurisprudence, and for the record, with much humility and respect, may I be pardoned to briefly tender my position in respect to the impugned provision. 99. In doing so, I must make it clear that in the end, the finding of the Court of Appeal prevails. http://www.kenyalaw.org - Page 26/34