The man set to succeed Issack Hassan as the chairman of the Independent Policing Oversight Authority (Ipoa) has rejected the argument that he needs to be a practising lawyer in Kenya to qualify for the job.

Dr Duncan Ojwang, who was nominated by President William Ruto and later topped a selection process conducted by a parliamentary committee, says his more than a decade as a law teacher suffices to place him at the helm of Ipoa.

“I have been teaching for about 14 years. I have published and climbed the academia [ladder] to the level of being a dean of a school of law,” he told the Nation on Friday. “I’ve also supervised PhDs, including Dr Irungu Kang’ata, who was my supervisee when he was doing his PhD in law at the University of Nairobi.”

Dr Duncan Oburu Ojwang, incoming Ipoa chairman.

Photo credit: Dennis Onsongo | Nation

Dr Ojwang obtained his early education in Kenya, then moved to the United States after secondary school. There, he got his first degree in psychology in 2006.

Afterwards, he enrolled for a degree in law, commonly known as a Juris Doctor. In the US, people can only study law after obtaining a first degree in another discipline.

After the Juris Doctor that he got in 2008, he obtained a master’s in human rights and international law in 2011 and later a PhD in law and policy in 2013. Thus, he counts himself as having four degrees.

He sat the Illinois bar exam in 2008 and was admitted to the bar. Besides his studies, he spent 2008-2009 working in the Public Defender’s Office in Illinois’ Jackson County. From 2011 to 2012, he was a special rapporteur at the UN.

His CV indicates that he started his teaching career at the University of Nairobi (UoN) in 2014, where he stayed till 2016, then moved to Africa Nazarene University.

Criticism over his qualification

Controversy has arisen over his suitability for the Ipoa role, given that he is not licensed to practice as an advocate in Kenya. Speaking with the Nation mid-week, Law Society of Kenya President Charles Kanjama said Dr Ojwang does not qualify to join the Kenyan bar, expressing doubts as to whether he fits the bill.

Law Society of Kenya (LSK) President Charles Kanjama.

Photo credit: Bonface Bogita | Nation Media Group

Some lawmakers also told Nation that they had doubts as to whether Dr Ojwang was the right pick.

The Ipoa Act says that the chairman shall be “a person qualified for appointment as a judge of the High Court of Kenya”.

Citing the Constitution, Dr Ojwang was categorical that there are three pathways to qualifying to be a High Court judge, and he fits the academia pathway.

Section 9 of the IPOA Act states that the IPOA board consists of a chairperson who shall be qualified for appointment as a Judge of the High Court of Kenya.

Article 162 (2) of the Constitution provides that each judge of a superior court shall be appointed from among persons who hold a law degree from a recognized university or are advocates of the High Court of Kenya or possess an equivalent qualification in a common-law jurisdiction.

Article 162 (1) of the Constitution defines a superior court in Kenya to include the High Court, Court of Appeal and Supreme Court.

One is also qualified for the job of a judge of a superior court in Kenya if the person possesses the experience required, irrespective of whether that experience was gained in Kenya or in another Commonwealth common-law jurisdiction.

Article 166 (5) further goes on to state that each judge of the High Court shall be appointed from among persons who have at least 10 years’ experience as a superior court judge or professionally qualified magistrate.

One is also qualified if they possess at least 10 years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal fields or hold the qualifications for a good period amounting, in aggregate to 10 years.

As such, Dr Ojwang, a scholar, said critics were “convoluting issues” by treating admission to practise in Kenya as the only route.

“If you are from the bench or you are a magistrate for more than 10 years, you qualify to be a judge,” he said. “I am not following that path. I come from academia.”

He went on: “That is why even somebody like Makau Mutua was interviewed for Chief Justice. He’s not an advocate in Kenya. It’s because he was qualified. He has taught for many years.”

Regarding his admission to the Kenyan bar, he said the Council of Legal Education (CLE) was handling his matter. Because they have the power to exempt a person from the need to train at the Kenya School of Law, he said, they had asked him for payment to admit him to the bar.

“CLE can do that and it has done it,” he said. “CLE told me, ‘Pay Sh50,000 and we’ll admit you.’ They told me, ‘From what you have done, you don’t need to go to the Kenya School of Law.’”

“Whether I can be an advocate is a different argument,” he added. “I come from academia.”

Dr Duncan Oburu Ojwang, incoming Ipoa chairman.

To demonstrate that his academic work has not been detached from live legal disputes, Dr Ojwang pointed to his role in convening a team of scholars who appeared as friends of the court in the Building Bridges Initiative litigation from the High Court through to the Supreme Court.

“We are engaged in legal discussions from a research and academia perspective,” he said. “People who research law and teach law probably get to know it deeply because of the philosophical training.”

He also fought back claims that the approval was rushed. He said Parliament advertised for public memoranda, received none, vetted him publicly for four hours and later voted on the committee report.

Questions of independence

Besides the qualification, there is the question of independence hanging over Dr Ojwang. He has been known to be an outspoken defender of President William Ruto in television shows and other forums.

President William Ruto.

Photo credit: Bonface Bogita | Nation Media Group

So, will he extend his “Ruto defender” persona as Ipoa boss? He said the supreme law offers a guide on that.

“Our Constitution has not made Ruto’s presidency the most important office. The most important office, according to the Constitution, is the position of citizens. That’s why the Constitution says sovereignty belongs to them. The highest office is not working for Ruto; it’s working for Kenyans,” said Dr Ojwang.

He said Ipoa’s assignment tasks him with protecting Kenyans and working for policing oversight and accountability on their behalf.

At his parliamentary hearing, he pledged to preserve the authority’s operational independence, declaring: “We will speak truth to power.”

He described Ipoa as “the eye of Kenyans” and said cooperation with the Inspector-General must never become subordination.

Investigations into misconduct, complaints and police operations, he said, demand independent judgment, while inspections and institutional reforms may require structured cooperation with the National Police Service.

Dr Ojwang’s pitch for the post is also personal. He recalled that while he was a secondary school student, his elder brother, Justus Ojwang, then a UoN student, was arrested in the aftermath of the mob killing of intelligence officer Ohanya Simiyu. He spent about a year in Kamiti Prison.

“He wasn’t even in Uhuru Park [where the spy was killed],” Dr Ojwang said. “He had gone to pick up his gown as he was graduating that week. All of a sudden, people descended on him at the UoN bridge. He thought it was a small-time arrest, but the next thing he was in Kamiti.” He added: “By that time, I was in Form Two. So it is that personal.”

That experience, he said, fed a lifelong concern for people unable to defend themselves. Drawing on his Seventh-day Adventist faith, he repeatedly returned to the phrase “what you do to the least of these, you do it unto me” as the measure of public service.

“The reason why we chose to do human rights is to protect the vulnerable,” he said.

He cited his unpaid representation of members of the Kedong Maasai community before the African Commission for Human Rights as an example of the courage he said he would bring to Ipoa.

By revisiting the treaties signed by Maasai leaders and the British in the 1800s, he said he managed to secure a ruling that the land that was to form part of the inland port was theirs.

“I was making an argument that the Anglo-Lenana Treaty of 1889 gave the Kedong Ranch to the Maasai. They were told to leave but to come to Kedong,” Dr Ojwang said. 

The selection process wasn’t a walk in the park. He made his application in May.

“I applied. Kenyans applied. We were shortlisted. We were called for an interview with the panel, then somehow they recommend you to the President, then the President takes it to Parliament, and Parliament gives the committee, which vets you on behalf of the House, then the House votes to agree or disagree with the report. It is then that you can be appointed,” he said.

He added that after approval by the National Assembly, what awaits is “I think a gazettement and maybe oath of office”.

Explaining that Ipoa was created before the 2010 Constitution as a reaction to police action during the 2007-08 post-election violence, Dr Ojwang noted that accountability for misconduct is not optional.

“Kenyans saw that the police had been used badly,” he said. “The police were meant to protect the State and the government instead of Kenyans.”

He argued that Kenya inherited a police service originally structured to protect colonial power and must continually remake it to serve citizens.

“The police that were to protect the colonialists now have to be reformed to protect us because we are the sovereign,” he said. “And that is the work of Ipoa.”

Hailing from Homa Bay County, he also takes note of the fact that he comes from a region that “has developed mistrust of the police given issues like the Kisumu massacre under [Jomo] Kenyatta”. He pledges to “repair the relationship with police with dignity”.

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eondieki@ke.nationmedia.com