Ineffective accountability: Why independent institutions are under fire

Chief Justice David Maraga on September 1, 2017 nullified President Uhuru Kenyatta election for a second term in office.

He categorically told of critics that the Supreme Court’s consistency and fidelity to the Constitution was an unwavering commitment.

In his reading of the majority judgement, Maraga said it would be a violation of the cardinal constitutional principles if they exercised the delegated power dishonestly.

“However burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant,” he said.

Since the historic 2017 ruling, the Judiciary and the Executive have had a frosty relationship, with observers holding that it’s because the courts have tried to stand up to the Executive.

In an anti-corruption conference at State House in October 2016, President Kenyatta told off former Auditor General Edward Ouko about the latter’s bid to probe the use of some Sh280 billion Eurobond.

The two separate — but somewhat related — incidents, and many others, show how independent institutions and commissions have been intimidated in the execution of their mandates.

The Kenya National Commission on Human Rights, the National Gender and Equality Commission, Commission on Administrative Justice, the National Land Commission, Independent Electoral and Boundaries Commission, the Parliamentary Service Commission, the Judicial Service Commission, the Commission on Revenue Allocation, the Public Service Commission, the Salaries and Remuneration Commission, the Teachers Service Commission and the National Police Service Commission have all had a mixed bag of successes and challenges in their 10-year journey.

Same case for the Auditor General and the Controller of Budget as well as  the Ethics and Anti-Corruption Commission.

For starters, there have been concerns about the problematic procedure of appointing commissioners, which to an extent defeats their independence.

Constitution and governance experts say while some of the entities have great successes, others have failed to meet the citizens’ expectations.

RATING

Despite their individual performance rating, issues of budget shortfalls, interference from state agencies, and their own internal weaknesses continue to play out.

EACC, in its 2017-18 report, decried inadequate staffing; politicisation of the graft war; lengthy legal process, and absence of wealth declaration procedures.

KNCHR relies to a considerable extent on direct support from the UN and foreign donors, whereas MPs have difficulties accepting that SRC has a say on their pay.

There have been issues with directives by the presidency to the DPP and the EACC on corruption investigations. A court once ruled this was unconstitutional.

CAJ also complained that a number of state agencies are unresponsive to its inquiries, while the NLC has over time lamented obstruction of its work by the Lands ministry.

KNCHR is equally in a clash of roles with the NGEC with the former saying rights protection would be easier if there was one rights agency.

Lawyer Nzamba Kitonga, who chaired the team of experts who midwifed the Constitution, rated the offices of the Auditor General and the DPP – though largely under the Executive, as having done well.

Together with his counterpart Bobby Mkangi, they also put a good word for the CRA, the EACC and the SRC – for harmonising salaries of civil servants – and the Ombudsman, said to be doing a lot quietly.

Kitonga said the NLC under the stewardship of Muhammad Swazuri was lethargic and did not give public the attention it required.

“We hope this other team (led by chairman Gershom Otachi) will try to revamp the organisation,” the lawyer said.

Mkangi also cited challenges with the previous NLC, pointing out the scandals that rocked it.

The IEBC was rated poorly over the handling of the two presidential elections in 2017.

The concern so far is that the IEBC has no quorum amid Parliament’s failure to revamp it.

The experts rated the JSC as also having failed Kenyans as it is not transparent.  “Kenyans feel that judges are rooting for their own cause,” Kitonga said.

He said the BBI reforms should factor changing the commission’s composition to remove the Chief Justice as its chairman.

“JSC needs to be reconfigured so that it isn’t dominated by judges but be comprised of senior lawyers, retired judges, advocates and other professionals to make it more transparent,” he said.

For the Parliamentary Service Commission, the experts say it has in a sense looked at the welfare of MPs, including retired ones.

“However, in the eyes of Kenyans, it is like a trade union and has attempted to award themselves benefits,” Kitonga said.

TSC was also put on spot over its unending controversies with Knut, which have exposed teachers to untold suffering.

The NPSC is said to have failed to rein in on rogue police officers as brutality meted on citizens has continued, almost unabated.

Tied to its failure, the experts say, is the weaknesses of the Independent Policing Oversight Authority and KNCHR in stemming police excesses.

They expressed concerns that the rights commission has lost visibility and the vibrancy it had during the Maina Kiai and former Mombasa Senator Hassan Omar’s time at its helm.

“NPSC failed to ensure there are no violations and there is no visible action taken against the same. IPOA and KNHRC should continually ensure checks to rights abuses by the police,” Kitonga said.

Mkangi argues that the issue of visibility could be stemming from insufficient budgetary allocation or the institutions changing tact.

He said certain aspects of the commissions’ work have become hard wired in systems and a lot of work is being done covertly.

VISIBILITY

However, the lawyer held that part of the institutions image or personality is pegged on their visibility.

“There is the commission work  — desktop and relations — which must not be seen by the public. Their visibility though has a huge reference to the call that ‘justice must be seen to be done’,” Mkangi said. “They must be heard and be seen to be working.”

He urged that the entities be allocated sufficient budget as some cannot conduct most of their activities hence only resort to meeting administrative costs.

“We should judge their performance by considering the environment they are operating in. Let us cut them some slack. But we cant excuse them from corruption, and other acts bordering on their integrity.”

“A lot has changed in terms of the commission’s performance. They have been raising issues and have enhanced interactions among Kenyans. I can rate them at 60 per cent,” Mkangi said.

Governance expert Natasha Kimani in an article to Chatham House said much as there has been increased participation, the representation and responsiveness to women has remained exceptionally low. 

Katiba Institute's Jill Cottrell and Nkatha Kabira in a July report concluded that the agencies would have been more effective if government had given them necessary resources, and had accepted their independence.

They hold that, on questions of whether life would have been different for citizens if they were no commissions, “their work would not be done at all or it would be worse done - by politicians.”

The two add that Kenyans view commissions as their protector from other state institutions but with pointers that corruption remains a major challenge to this milestone.

To the institute, all is not lost as the commissions have played important roles in legislative reform, especially the now-defunct Constitution Implementation Commission.

Cottrel and Kabira observed that KNCHR, NGEC and CAJ have produced valuable investigative reports.

“The NGEC and the KNCHR have gone to court to protect rights under the Constitution, including on the two-thirds gender issue and on the Security Laws Amendment Act,” they said.

They also underscored NLC’s significant role in the increased use of alternative (informal) conflict resolution mechanisms in land rows.