• Without the substantive commissioners in the office, the agency cannot transact business effectively as there are commitments that only they can make on its behalf
• Kagwiria Mbogori, George Morara, Jedidah Waruhiu and Suzanne Chivusia left office in March last year after their six-year term ended. They were appointed in 2014.
Concerns are mounting over the delayed recruitment of commissioners at the Kenya National Commission on Human Rights 10 months after the posts fell vacant.
Kagwiria Mbogori, George Morara, Jedidah Waruhiu and Suzanne Chivusia left office in March last year after their six-year term ended. They were appointed in 2014.
The commission has since been under the care of its secretariat.
Former commissioner Waruhiu told the Star that the absence of substantive commissioners is hurting the effectiveness of the commission in fulfilling its mandate.
“It is unfortunate that the commission has remained without appointed commissioners and hence unable to effectively carry out its most-needed business. The government needs to move with speed to fill these vacancies,” Waruhiu said.
The commission serves as the link between the government and the civil society, helping to bring to attention of the state issues of concern related to human rights.
The commission also helps the state inculcate human rights approach in its policy decision and implementation.
But without the commissioners, the agency cannot transact business effectively as there are commitments that only the commissioners can make on its behalf.
“Without the commissioners, nothing virtually moves. There are businesses the secretariat cannot transact,” Hussein Khalid, the executive director of Coast-based Haki Africa said.
“It is something worth piling pressure on as the delayed recruitment is a kin to the state crippling the commission and the larger human rights agenda,” Khalid added.
Waruhiu said during their term, KNCHR suffered consistent under-funding from the government, making it to largely depend on magnanimity of partners and foreign donors.
“Since we were appointed in 2014, we always sought a budget of Sh1 billion. But the Treasury never gave us even half [of it] throughout our tenure. This obviously meant that most of the programmes the commission lined up to do in furtherance of its mandate could not be afforded,” she said.
Suba Churchill, the convenor of Civil Society Reference Group, concurred that absence of commissioners exposes the commission to court challenges as the power of the entity vests in the commission.
"Like the case Charity Ngilu brought against EACC, someone can go to court to challenge any action or decision taken by the secretariat in the absence of commissioners, leading to nullification," Churchill said.
"In other words, not appointing the commissioners has practically rendered the entity dysfunctional. The CEO is an ex-officio member of the commission and cannot purport to operate it. In any case, he lacks the quorum to make commission decisions," he said.
In the Ngilu v. EACC case, the Kitui governor had sued the commission to challenge her arrest and prosecution when she was the Lands CS, her case predicated on the fact that there were no substantive commissioners.
The court agreed with her, ruling that a constitutional commission cannot work legally without appointment of substantive commissioners.
Churchill fears that the delay is part of the hostility of the state against the civil society and entities that champion respect for human rights values in government and policy administration.
Like every other constitutional commission, the law requires that recruitment of commissioners starts with the gazzettement of vacancies and forming a selection committee to oversee the shortlisting.
The successful candidates are then taken through a parliamentary vetting process and approval for eventual appointment by the President.