Dr Duncan Ojwang has a right, like any well-educated and qualified Kenyan, to serve his country in a role that fits his impressive qualifications and talents.
Last week, Parliament approved his appointment to chair the Independent Policing Oversight Authority. He promised the committee that vetted him that he would protect Ipoa’s independence, declaring: “We will speak truth to power.”
That is precisely what the chairman of Ipoa ought to say — until the evidence points towards the government that appointed him.
When President William Ruto nominated Dr Ojwang to chair the Kenya National Commission on Human Rights exactly a year ago, he was met by a barrage of court challenges and protestations, including in this column, over his record of association with the administration and his public advocacy of positions that appeared at variance with the independence expected of a national human rights institution.
Dr Ojwang subsequently withdrew his candidature, citing personal reasons and a perceived conflict of interest, among other matters. The National Assembly thus halted consideration of his nomination.
If there was a perceived conflict of interest in his appointment to KNCHR, it must be asked: what has changed to make him suitable to head the Independent Policing Oversight Authority?
KNCHR and Ipoa may not be identical twins, but they are, in the constitutional design of accountability, sister institutions. KNCHR is mandated to protect and promote human rights and hold the state to account for violations. Ipoa provides independent civilian oversight of the police, investigates complaints and police misconduct, monitors policing operations and investigates deaths and serious injuries arising from police action.
Indeed, Ipoa may be the more politically explosive of the two.
Kenya has spent the past four years struggling with police accountability, from the policing of political demonstrations to allegations of unlawful killings, enforced disappearances, torture, deaths in custody and excessive use of force. The Gen Z protests turned police accountability from a perennial human rights concern into one of the defining political questions of the Ruto presidency. Only recently, there was yet another death in police cells.
Ipoa has investigated police conduct during the protests and is mandated to inquire into deaths and serious injuries resulting from police action. Its law requires it to be independent and impartial and expressly prohibits interference with its decision-making and operations.
This is the institution which Dr Ojwang has now been appointed to lead. Although Dr Ojwang possesses the education and legal intelligence for the job, and understands the Constitution and the law, there are questions about how he will lead an independent authority. Independence must be visible before an independent institution begins its work. Citizens must have confidence that the person at the top of the watchdog can bite the hand that feeds it.
Dr Ojwang’s earlier withdrawal matters for this precise reason. For if he believed that his circumstances last year created a perceived conflict of interest serious enough to prevent him from accepting the chairmanship of the country’s principal human rights institution, what has changed?
The only noticeable change is that Dr Ojwang has become considerably less visible on television over the past year. But absence from television is not evidence of a change of heart. It may simply mean that one has learnt the wisdom of keeping one’s thoughts to oneself.
Ipoa is required to investigate the very institution whose conduct has become one of the greatest threats to public confidence in the Kenyan state. Its statutory objective is to hold the police accountable to the public. It can investigate complaints, recommend prosecution and disciplinary action, monitor police operations and inspect detention facilities.
The stakes have become even higher. Kenya is grappling with the growing use of organised gangs in political contestation, including allegations that hired goons have been deployed to disrupt political gatherings and protests, sometimes in circumstances in which their activities appeared to occur alongside or with the tolerance of police. When the line between the State's formal coercive machinery and those acting in its interests becomes blurred, the need for an independent police watchdog becomes even more compelling.
What happens when people who are not police officers appear to be performing policing functions — or participating in political violence — in circumstances where the police seem to tolerate, facilitate or work alongside them?
Kenya needs at Ipoa someone whose first loyalty is to the Constitution and whose instinct, when confronted by state power abusing the citizen, is to ask how the citizen will be protected.
Under founding chairman Macharia Njeru and his successors, Ipoa investigations have at times followed the evidence beyond individual police officers to the police command, the Ministry of Interior and the political establishment.
Dr Ojwang has said he will do exactly that. But speaking truth to power is easy when power is behaving itself. The real test comes when the truth becomes inconvenient to the appointing authority.
Not everyone who has worked with or defended a government is permanently disqualified from public service. But the circumstances that raised questions about Dr Ojwang’s independence at KNCHR have not been explained away by moving him to another independent watchdog.
The writer is a board member of the Kenya Human Rights Commission and writes in his individual capacity. @kwamchetsi; [email protected]
