The Rationale for the Existence of Independent Constitutional Commissions

The current crisis at the Independent Boundaries and Electoral Commission (IEBC) has brought into focus the role of independent commissions. Our constitution dedicates Chapter 15 to commissions. It lists ten constitutional commissions and two independent offices. These are the Kenya National Commission on Human Rights (KNCHR), National Land Commission (NLC), IEBC, Parliamentary Service Commission, Judicial Service Commission (JSC), Commission on Revenue Allocation (CRA), Public Service Commission (PSC), Teachers Service Commission (TSC) and the National Police Service Commission (NPSC). The two independent offices are the Auditor General and the Controller of Budget.


In reality we have 14 constitutional commissions. The additional four are the Ethics and Anti-Corruption Commission (EACC) which is established under Article 79; the Commission on Administrative Justice (CAJ or the Ombudsman); the National Gender and Equality Commission (NGEC) and the Kenya Law Reform Commission (KLRC). The CAJ and the NGEC are successor commissions to the KNCHR under Article 59 which allows Parliament to restructure the KNCHR into two or more commissions. The KLRC, while not expressly recognized in Chapter 15, is required by the transitional provisions to work with the now defunct Commission for the Implementation of the Constitution (CIC) and the Attorney General to prepare the laws to implement the constitution. There is a third independent office, too: the Director of Public Prosecutions (DPP).


Why Independent Commissions?


The existence of independent commissions can be traced to both local and international factors. There is wide recognition internationally that certain functions that are necessary to enhance democracy can best be carried out by a state body that is independent of the formal government. Most attention has been given to human rights protection. In 1993 the UN General Assembly adopted what are now known as the Paris Principles. These Principles set out the critical elements that a national human rights body should meet to be considered functionally independent.


However, the rationale for the inclusion of most of the commissions in our constitution is local. During the constitution making process, people’s trust in the government was quite low, especially because of the centralization of power in the presidency and the abuse that came with it. In essence, the president and those who wielded power around him, directed what should be done in nearly every sector of the state on the basis of political convenience regardless of how unprofessional or what adverse effects such action would have. The best examples are land and security.


Under the former Constitution and the laws, the President had immense powers over who got land and what land was used for. There is a story that President Jomo Kenyatta would get into his car with surveyors in tow, and ask the driver to drive without an indication of precisely where he was headed. Then he would doze off, and when he awoke, he would order the driver to stop. The beacons to demarcate land would be put between the points he dozed off and where he awoke. How much land one got depended on how heavy the President’s sleep was on the particular day. The myth continues that obviously his sleep was heavier when it was his or a family member’s turn to get the land.


Similar myths are related about former President Moi –especially about his control over the national security apparatus to perpetuate his power. My favourite is the one showing the fear Moi created amongst government officers: when he telephoned senior government officials, they would stand at attention, in the privacy of their offices, throughout the conversation and the only acceptable response from their side was “Yes Sir!”.


These and other stories (however mythical) illustrate people’s perception – perhaps not so far from reality – of how those who were in power abused their position for personal gain yet none of the public officers would stand up to them or speak out. Independent Commissions were conceived as a check against this wanton abuse of power by senior state officials.


Because of the importance of certain sectors and the attendant abuse of power, Kenyans thought it wise to remove critical aspects of those sectors from the mainstream government and allocate it to independent bodies that would not be under the general direction of formal government actors from the executive or the legislature. The various principles in Chapter 15 and those guiding the establishment of each commission reflects this motivation.


The Independence in Independent Commissions


The constitution contemplates that there are two critical facets of independence


The first is institutional independence which is supported by many elements, including financial independence – that is the Commission being given sufficient funds to allow it reasonably discharge its mandate with ease. Personnel independence – the ability of the commission to hire its own key staff members to minimize manipulation from other sectors of the state – is also key.


Individual independence is perhaps the more critical of the two components of independence. This relates to the independence and integrity of the individual commissioners. The constitution contemplates that those who serve in commissions (especially the commissioners) should be persons of principle and great integrity. They have to be able to stand up to even the most powerful person in government (ordinarily the President) and be ready to speak out against the excesses of power regardless who the culprit is. Importantly, they have to ensure that their commission discharges its mandate with integrity and on the basis of professionalism. That personal independence is supposed to be guaranteed by an appointment process that means commissioners do not feel beholden to those who will be affected by their decisions, and by their being very hard to dismiss –so they do not kowtow to those who can remove them.


And now back to the IEBC. Indeed, while there are many issues that dog the IEBC, the main complaint seems to be that of independence and integrity of individual commissioners. The perception and allegations that the commissioners are too close – or are desperate to be close – to Jubilee government compromises their ability to be or be seen to be neutral arbiters for the 2017 elections. And – like the courts – it is not just important that justice is done, but that it is seen to be done. Perceptions are crucial.


So has the system of independent commissions failed? The constitution makers perhaps faltered at the final stage. Having devised a system of independent commissions, they left the details of appointments processes to law (made by Parliament). And they gave the National Assembly the power to approve (or disapprove) commissioners, and the role of deciding whether a complaint against commissioners should lead to removal proceedings.


But the job of policing politicians and operating a system that ensures they behave with integrity during elections is the job of the IEBC. Is it right that the majority in the National Assembly (necessarily biased to their own parties’ interests) should approve IEBC commissioners, and be able to block their removal?


The real problem does not lie just with specific provisions of the constitution of course. The integrity of individuals, and a minimum level of trust in institutions is also vital. The institutions also depend on the public: not just trust, but on being given accurate information of what is going wrong, what needs investigation. We seem to be strong on allegations but less so on concrete facts.


Nor is it a matter of just one commission: the EACC and the DPP have a major role in keeping their fellow independent commissions and offices in compliance with the law and the constitution. The whole structure –intended to ensure integrity, competence and freedom from interference from those with vested interests – seems to be wobbling.



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