I want to unpack an idea that is very important in the Kenyan constitution – that of “independence” of decision-making agencies and offices. The words “independent” or “independence” appear in about 14 situations.

The US constitution has just one reference to “independence”: to independence of that country from the UK. However, the concept of judicial independence is clearly referenced in Article III, though less fully than in our Article 160. I mention this because of the way that significant aspects of our constitution are taken from the American one.

Apart from reference in the Kenyan constitution to “independent candidates”, who do not belong to any political party, all the other situations involve being independent of government, in terms of making decisions. In other words the constitution limits the decision making power of government.

It also requires independence from influence of anyone else – that might include financial pressure, religious pressure, maybe other community pressure, as in “You are one of us and should decide in our favour”. 

This is not a welcome concept to governments. We can see this clearly from the behaviour of the American President, and our own, as well as of other senior government officers who talk as though they can make decisions that are actually reserved for other agencies.

The list of those supposed to be “independent” is longer than you might think. It includes the Judiciary, the 10 Chapter 15 commissions (which include the Commission on Administrative Justice (CAJ), Commission on Revenue Allocation, Independent Electoral and Boundaries Commission, National Land Commission, Salaries and Remuneration Commission and Teachers Service Commission, the Auditor General (AuG) and Controller of Budget, the Inspector General of Police and Director of Public Prosecutions and the Central Bank and media agencies.   

Why is their independence important?

Just think about what these agencies and people do: deciding cases against the government or involving wealthy and important people (the courts); hearing complaints against public agencies (Kenya National Commission on Human Rights, National Gender and Equality Commission, CAJ); investigating and monitoring the financial decisions made by public bodies (AuG and CoB); supervising people and bodies that may criticise governments – and prominent people – (now the Media Council of Kenya and the Complaints Tribunal under the Kenya Information and Communication Act).

Other tasks include fixing boundaries – with consequences for the number of voters in each constituency or county, and for election results and allocation of funding (IEBC and a specific commission for county boundaries – Article188). Agencies may actually allocate money to counties (CRA); provide services for MPs (Parliamentary Service Commission); or make appointments that prominent people like MPs would like to play a part in (TSC) or to posts in which people will be able to make the sorts of decisions listed here (Judicial Service Commission). A commission of inquiry would be required to investigate allegations against a county government –perhaps leading to the president suspending that government (Art. 192).

The criminal justice system involves three decision/action stages: investigation into crime (police), decision to prosecute and then prosecuting (DPP) and deciding on guilt or innocence and sentences (judges but most often magistrates). 

The police should be able to decide without interference from politics or wealth anyone who seems to have committed offences (on the basis of the evidence they collect) and decide whether to arrest and recommend prosecution to the DPP. The head of the police – and so the police generally – is supposed to make those decisions purely professionally. The only direction they can receive is from the Cabinet Secretary on policy (not individual cases) and the DPP on specific cases. Under the old constitution a case (whoever started it) could be stopped by the Attorney General – not an independent officer. The new constitution requires the courts to agree.

The courts, of course, decide on guilt or innocence – and sentence the guilty. Under the old constitution, once a person was sentenced, the president could issue a pardon – even on purely political grounds – though he did have to consult an advisory committee in case of the death penalty and could do for other cases. Now that decision must be on the basis of a recommendation by the Advisory Committee on the Power of Mercy (not actually called “Independent”).

The Central Bank of Kenya may be puzzling. A major function of a central bank is to fix interest rates. This can be unpopular – it makes it more expensive to borrow money, including for government, and makes things more expensive. Government might oppose it. But it may be important to keep inflation down. If government controls the bank it may be forced to make the popular decisions which are not the best in the long run. Independence of central banks has become the popular philosophy.

How does the constitution protect independence?

Sometimes there is nothing specific other than asserting independence. This is true of commissions to carry out county boundary reviews and investigating a county government.

Sometimes there is a clear statement like “shall not be under the direction or control of any person or authority” (Central Bank – Art. 231) or similar expressions about independent commissions and offices and the Judiciary. The IGP exercises “independent command” over the police (Article 245).  Agencies to regulate the media must “be independent of control by government, political interests or commercial interests” (Article 34).

If government appointed people, they might feel indebted, affecting their decisions. Detailed arrangements for making appointments include the JSC for the Judiciary, and the TSC for teachers. Sometimes this is left to law, but may have the added provisions for approval by the National Assembly. This is true of the Chapter 15 commissions. However, the chair of the CRA is nominated by the president and then approved. For other commissions there is usually a process under an Act of Parliament before the National Assembly approval.

And officers might feel pressure to please those who can dismiss them. The IGP is appointed by the president, and sacked by the president, but it must be on serious grounds listed in the Constitution (Article 243). Some officers can be dismissed only following an elaborate process – such as the special tribunal to consider the conduct of judges (Art. 168(5)) or the DPP (Art. 158).

The holders of certain offices are protected from the risk of worrying about whether they might be sued for what they do in their official capacity. These include members of the Judiciary and members of independent commissions and the Au-G and CoB (Articles 160 and 250). Interestingly this is weaker than the protection in some countries because they must have been “in good faith” – in other words if they honestly thought that what they were doing was all right.

Some intended guarantees of independence have a financial angle. The salaries and benefits of many major public officers are guaranteed in the sense that once formally decided they do not need to be voted on in the annual budget – they are a “charge on the consolidated fund”, so taken out of politics. This applies to judges, and to commissioners and the Au-G and CoB (Article 251).

Earnings of judges must not be reduced while they are in office. 

The Judiciary has a special protection. Its other expenses are submitted directly to Parliament, not through the Treasury, and once approved annually by Parliament are to be put into a separate “Judiciary Fund” which is then under judiciary control (Article 173).

The constitution insists that Parliament must allocate “adequate funds” to commissions, the AuG and CoB (Article 241).

Next week I hope to ask: how is all this working?

This article was first published by The Star Newspaper

Image: FILE