Since taking power in September 2022, President William Ruto has
issued multiple executive orders from State House, Nairobi.
These orders have fundamentally structured and restructured
government design or organisation, management, operations, public service and reorganised national institutions. And launched a number of
presidential task forces, among other measures.
Of particular note is that some of these orders have been quashed by the High Court. For
example, Executive Order No. 3 of 2024, which purportedly rearranged parastatals, was
quashed by the Milimani High Court that called it unconstitutional for usurping
constitutional powers of the Public Service Commission.
Of special significance
to this commentary is Executive Order No. 2 of 2023 that outlines the
current organisation of the government of and
assigns functions across state ministries, departments and agencies.
In that order, Ruto purportedly instructed that the
Independent Policing Oversight Authority (Ipoa) be placed under the direction of the Ministry of Interior and
Coordination despite provisions of its Constitutive Act as
an independent organ!
This is commentary is about this order, but of course, other independent but related institutions have
also been affected severely by such orders.
To demonstrate, was the Executive Order No. 7 of 2024, which purportedly
facilitated critical transitions within top homeland
security agencies, including the National Police Service and Kenya Prisons Service.
Further
still, some of the actions in State House include the recently established Nairobi
Metropolitan Police framework and sanctioned the deployment of specialised General Service Unit and
Rapid Deployment Unit units to curb crime in Nairobi county, among others.
Our problem
This commentary thesis is simple: we have a major problem with what,
how, when and why State House has become the headquarters of changing the constitution and its subsequent laws,
through unconstitutional, illegal and unlawful means!
While these and many more actions
through, or even without orders, have been
happening at State House, the president (as commander-in-chief) and his Cabinet
Secretary for Interior have been unable to reign in
the ongoing terrorism by goons all over the country!
The country is under complete siege by
marauding gangs, walking along police and stopping each and every person from not just conducting their daily activities but more so,
enjoying their constitutionally guaranteed fundamental freedoms and human rights!
Now, let us deal with Ipoa, and let me begin
by disclosing that I served as one of the seven founding board
members between June 2012 and May 2018, led by chairman Macharia Njeru.
To trace the
origins of Ipoa is not important here, but suffice it to mention
the idea was created even before the constitution was
drafted and completed, through a proposal by human rights groups to various task forces
following the post-election violence of 2007-08.
Therefore, Ipoa was a response to what Kenyans have witnessed from the “police force”
over the years, including all the ills that are currently going on, even if the “police service”
was created under the constitution!
Some of these egregious abuses of human rights by the “police force”,
such as extrajudicial killings, arbitrary arrests, enforced disappearances, abductions, and
more have again been documented in a report by Kenya National Commission on Human Rights
handed over to President Ruto in June.
Just last month! And the government
is currently providing reparations for the same serious ills, and while these
reparations are ongoing, the “police force” is busy undertaking more violations!
Ipoa an independent
state organ
Section 4 of the Ipoa Act provides
succinctly that the institution is an independent organ under no direction
of any authority. Any purported order by any other state
organ such as the presidency is null and void, ab
initio!
Therefore, the purported order to have Ipoa become an appendage
under the ineffective CS of Interior ¾ who has shown
neither capacity nor capability of dealing with (in)security in the
republic of Kenya ¾ has been
quashed by the court!
Courtesy of the above Executive Order No. 2 of 2023, Ipoa and some patriotic Kenyans went to the
Judiciary, to seek remedy for this, away from the Executive overreach.
In the petition (Jonathan Obwogi vs Independent Policing
Oversight Authority and CS Interior and
Coordination of national government and five others), on Tuesday, July 14, the High Court in Milimani
pronounced itself by granting the second prayer in the petition, before the hearing and determination of the entire Petition.
In the words of the Judge David Mburu: “ …A conservatory order is hereby issued staying, suspending and/or
restraining the first and second respondents, their agents, assigns, servants or anyone acting under their
direction or on their behalf from implementing, enforcing, giving further effect to, or
in any other way acting upon the provisions of the
Executive Order No. 2 of 2023 insofar as those provisions purport to place
the Independent Policing Oversight Authority (third respondent) under or within the Ministry of Interior and National Administration, pending the
hearing and final determination of this petition.”
Enforcement of the order
Following this pronouncement, and similar to others before it, and as
shown by this government thus far, there is a possibility of defiance and hence,
vigilance has to be taken a notch higher.
Enforcement of this court order has to be done by both Ipoa and all the persons (juristic
and natural) involved in the Petition. From what I can perceive, there is the possibility of
not obeying this order for obvious
reasons that I explain here.
First, Ipoa and petitioners should seek protection and enforcement from
the legislature, through the Departmental Committee in the National Assembly to which Ipoa reports, especially with
regard to its current budgetary allocation in the Appropriations Act (2026) under the
recurrent number: R2151 amounting to Sh1,561,610,040.
This is Sh1.56 billion, and if the
ministry were to target Ipoa, it could be targeting appropriating itself these monies
against what Parliament has already passed into law.
The second strategy is to the third and current board of Ipoa. I think, and to
be honest, today’s “commissioners” are
largely absent from many forums, whether by state or non-state actors, and
they are not as visual and verbal as the first board was.
There is need to scale up high-level
advocacy through partnering with like-minded organisations both in Africa and the
world.
Institutions such as Ipoa cannot be taken
under the Executive arm of government, since the government already controls through policy or
otherwise the “police forces” and hence any attempt to do so would be literally kill Ipoa completely.
Further, there is need to assert this independence fully by, for
example, not appearing alongside the “police force” or
“ministry officials” unless it is extremely necessary. Honestly, one should not hang out with
people they are overseeing.
Third, I think there has been a deliberate effort to wind up independent
institutions by this regime, especially before the 2027 general election.
This mission must
be stopped dead in its tracks. Ruto seems to loathe independent institutions, or has disdain for them.
Solidarity across
all independent institutions of the state, especially
those in Chapter 15, is a necessary strategy to protect the constitution and also the mandates of these institutions, since
they were created to counterbalance the Executive, Judiciary and Parliament.
What is shocking is that the “police force” who were literally asking
for independence at the beginning of this regime and were even granted
“financial autonomy” seems to be crawling back to the Executive arm of government, which is
raiding all of their independence as seen in the above executive orders!
Finally, Ipoa and all
independent institutions have allies within civil society and within the diplomatic
community.
These two partners would be willing to even arrange some forum or a conference to
discuss the ongoing happenings in the country, in which better and more concrete strategies
would be formulated, agreed upon and implemented.
For example, the subject of
goonisation of electoral politics is affecting all independent institutions but
none seems to know how to respond.
Only the National Cohesion and Integration Commission shows
concern on television but without local, regional and national strategies to deal
with the matter squarely being floated.
Indeed, I end by challenging Ipoa to rally all the
other independent institutions to come together and have a national conversation very
soon on this matter of goonisation of electoral politics (as visibly present today).
That’s because this is a serious violation of Article 244, where the “police
force” are lacking professionalism. These gangs must be
nipped in the bud! Now, not tomorrow before we lose our country ahead
of the 2027 general election.
The writer is a political scientist and human rights defender
