KATIBA CORNER

Ten years on, constitutional commissions have been a disappointment

It is patently clear that almost all the commissions and independent offices have been subtly captured by the state

In Summary

• Certain functions that are necessary to enhance democracy can best be discharged by a state institution independent of government formalism and political influence.

• The principles and values of these commissions and independent offices are to protect the sovereignty of the people,

President Uhuru Kenyatta tours a stand at the constitutional commissions conference at the Meru Polytechnic on October 12, 2018.
INDEPENDENT? President Uhuru Kenyatta tours a stand at the constitutional commissions conference at the Meru Polytechnic on October 12, 2018.
Image: PSCU

One of the innovations in the 2010 Constitution is a whole chapter on Commissions and Independent Offices.

There is wide recognition internationally that certain functions that are necessary to enhance democracy can best be discharged by a state institution independent of government formalism and political influence.

The old constitution provided for a handful of commissions: the Public Service Commission, the Judicial Service Commission, Parliamentary Service Commission and the Electoral Commission of Kenya. The independence of the first and last was only on paper as the commissioners were appointed by the President.

 

The 2010 Constitution establishes commissions on Human Rights and Equality (now divided into three: Human rights, equality, and administrative justice),  land, elections and boundaries, parliamentary, judicial, public, and teachers service. There is also the Commission on Revenue Allocation and the Salaries and Remuneration Commission. It also requires the law to create the anti-corruption commission.

ROLE AND INDEPENDENCE

The principles and values of these commissions and independent offices are to protect the sovereignty of the people, to secure the observance by all state organs of democratic values and principles and to promote constitutionalism.

The independent commissions, alongside the Judicial branch, have special governance-mandates of critical importance. They are custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights, and public participation. They are intended to serve as ‘people’s watchdogs’ and, to perform this role effectively, they must operate without improper influences, fear or favour. 

This, indeed, is the purpose of the “independence clause” – which says they are subject only to the Constitution and the law and are not to be directed or controlled by any person or authority. Such a provision was incorporated in the constitution in the light of regrettable memories of an all-powerful Presidency that, since independence in 1963, had emasculated other arms of government even as it irreparably trespassed upon the fundamental rights and freedoms of the individual. 

They are hard to dismiss. Their salaries are guaranteed. Parliament must vote them adequate funding

These constitutional institutions can only be beneficial to the citizens if they live up to their constitutional billing in discharging their vital mandates. If their independence is compromised those mandates cannot be discharged, and their values and principles will remain on paper.

 

It is patently clear that almost all the commissions and independent offices have been subtly captured by the state.

APPOINTMENT 

Almost all the operationalising Acts passed by Parliament provide for similar recruitment procedure that undermines the independence of these institutions.

Generally, the first step is to appoint a panel to nominate members of the Commission in question. Sometimes, panel members are nominated by particular organisations and formally appointed by the President. And sometimes the Executive itself chooses some members of the panel.

Although these panels try as much as possible to implement the values and principles of the public service under the Constitution, the hand of the President in the final product is noticeable.

Often, the panel is to send to the President two or three names to fill a vacancy on a commission — giving him the final choice. The courts held that a similar procedure for appointing the Chief Justice was unconstitutional because it undermined the independence of that office.

Following the 207 General Election, various recruitment panels shortlisted losers in the polls who ended up being appointed by the president after successful vetting by a parliament that most often than not would reward politicians. To appoint politically active people to “independent” commissions is a violation of the spirit, if not the letter, of the Constitution.

FUNDING

It is a matter of public notoriety that Parliament and the Executive use budgeting processes to hold other constitutional institutions to ransom. The Judicial Service Commissions is a case in point: Its budgets are slashed, making it hard to carry out their mandates

Courts have stressed that the "independence clause” with regard to commissions and independent offices was to provide a safeguard against undue interference with such commissions or offices by other person or other institutions of government. 

The Court of Appeal has had to remind the EACC (and the President) that the latter cannot direct the former, and the DPP must not be directed by the EACC.

Courts have provided guidelines on a number of ways to shield against the erosion of institutional independence. The main safeguard is the constitution and the law. Once the law, more so the constitution, decrees that such a body shall operate independently, then any attempt by other forces to interfere must be resisted on the basis of what the law says. Operationally however, it may be necessary to put other safeguards in place, in order to attain ‘independence’ in reality. Such safeguards could range from the manner in which members of the said body are appointed, to the operational procedures of the body, and even the composition of the body. However, none of these ‘other safeguards’ can singly guarantee ‘independence’.

Independence of any institutions would be a mirage if individuals appointed to run them did not have personal independence or freedom of thinking. The independence of the judiciary would remain just that if persons appointed as judges and magistrate lack personal independence that stems from their background and training.

The most unclear issue as regards commissions is on what their real powers and mandates are in relation to other constitutional institutions. Supremacy battles between commissions and line ministry have been fought all the way to the Supreme Court. In 2014, the National Land Commission locked horns with the Ministry of Lands.

Courts have been helpful in trying to safeguards these institutions’ independence. However, a lack of clarity in interpretation of the mandates of these institutions have confounded rather than enlightened.

Sometimes it is unclear whether decisions of a commission must be followed by other institutions. While the Court of Appeal says that recommendations of the Commission on Administrative Justice specialised commissions are binding on other agencies, the Supreme Court on its recent judgment held that CRA decisions are not.

SUPREME COURT DECISION

This has partly contributed to the current impasse on the horizontal division of revenue among counties. The question before the Supreme Court was whether the recommendation by CRA on the division of revenue between the national and the counties, is binding upon both Houses during deliberations concerning the Division of Revenue Bill and the Appropriation Bill.

The apex court said CRA recommendations are not binding upon either the National Assembly or the Senate.

The court, however, says that what the two Houses cannot do is to ignore or casually deal with such recommendations. The court held that to find the recommendations binding is synonymous to elevating the commission above Parliament in the legislative chain.

What the Supreme Court ought to have then ruled is that should the two Houses lock horns or should the Senate not able to agree on any formula, the default position would be that of CRA. This way, although Parliament retains its legislative power, the commission’s power to provide a guideline is also safeguarded and not trampled upon.

In any case it would not have been the intention of the people of Kenya to have over 10 commissions whose mandate is only persuasive and recommendations ignored.

This lack of clarity has led to the two impasses on vertical and horizontal division of revenue.  In any case, one of the most principles mandates of any commission and Independent office is to promote constitutionalism, which means legitimacy of any government actions or whether official conduct is consistent with pre-fixed legal rules.

All is not lost because the Supreme Court is not bound by its previous rulings and judgments and this issue can always be revisited for clarity.

Suyianka Lempaa is a litigation counsel at Katiba Institute