• In the case of removal of an IEBC commissioner, I suggest it would have been better to have no politician involved. The matter is too close to home for them.
• We have seen far too often that politicians cannot separate their personal interests from their duties
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A President who recently won an election has the opportunity — presented to him by a committee of the National Assembly in which he has a majority (as is not inevitable but will happen commonly) – to choose the Tribunal to decide what the commissioners did, whether it was wrong, and whether as a result, the President must dismiss the commissioners.
Any outcome of this process (other than the tribunal answering at least one of the questions before with “No”) is bound to attract the reaction, “What else would you expect?” The well-known saying that “justice must not only be seen to be done but must manifestly be seen to be done” sums up the situation nicely.
One of the most basic principles of justice is that you don’t get the chance to decide who will rule on a case that affects you. Yet here – apart from the fact that the chair of the tribunal must actually be a Judge – the President has a fairly free hand to choose the members.
We know that the Constitution is not perfect, (no constitution is) but how did it happen that this blatant violation of the principles of justice should appear in it?
HOW DID WE GET HERE – CONSTITUTIONALLY SPEAKING?
The model of involving the legislature in the removal of public officers goes back a long way. We know it as impeachment - a word used about removal of judges in the UK, and also for trials of high officials, who could be prosecuted by the House of Commons before the House of Lords. Brought into the US Constitution including for the president.
Interestingly in our current Constitution, Parliament has no role in removal of judges. But it does in removal of the President, governors (the Senate anyway) and Cabinet secretaries.
Maybe the Constitution makers did not have in their heads a clear distinction between removal from political posts and from non-political supposedly independent posts. They did keep the removal of judges away from Parliament – but why give it removal of commissioners and independent officers?
And why give the President a role in removing commissioners, including those of the IEBC? Well, they didn’t, not initially at any rate.
The current language (Article 151) about removal of commissioners, the Auditor General and the Controller of Budget has been there since the Bomas draft following the National Constitutional Conference in 2004.
Yes, a complaint would be made to the National Assembly, which considered the matter and if it was about something that would – if true - amount to a sufficient ground for removal could send it to the President asking him or her to set up a tribunal. The President had no choice. And if that tribunal recommended removal the President again had no choice. Just like the current Constitution.
The difference lies in the nature of the President. In every draft constitution from the very first (CKRC in 2002) through Bomas, to drafts of the Committee of Experts in late 2009 and early 2010, the President was not head of Government. The President was the head of state – with largely formal roles, but with some unusual powers for what is often called a “ceremonial” head of state.
This was one of those powers. The President would have appointed the Tribunal – but the President was not supposed to be a party politician, but a symbol of the nation, and to some extent a check on abuse of power by the government.
But when that parliamentary committee in Naivasha in May 2010 decided to change the whole system of government to an American style presidential system, it did not scrutinise the powers of the President in the Constitution to see if they should no longer belong to a President who was a politician and head of government.
The Committee of Experts does not seem to have done it either – or maybe they did but decided that could not make many changes or MPs might reject the whole thing.
Under the parliamentary system proposed in those various earlier drafts the President would have been elected by the people. In other words, he or she could well have been not beholden to the governing party at all, and would owe legitimacy to that popular election. This is the system in Ireland.
I think, however, it was perhaps a mistake in those drafts to allow the President to appoint a Tribunal to remove an IEBC commissioner – because as with the current situation it could have been a decision that was motivated by personal experience.
WHAT COULD THE CONSTITUTION HAVE SAID?
When that radical change of government system - from parliamentary with a separate president whose functions included being a check on government to presidential – it was essential that all powers given to the president should be reviewed to see if it was still appropriate for those powers to be with the president.
In the case of removal of an IEBC commissioner, I suggest it would have been better to have no politician involved. The matter is too close to home for them. We have seen far too often that politicians cannot separate their personal interests from their duties. Any idea that an independent minded Parliament could make its own decision and then pass the issue to a disinterested President is quite remote from reality.
Maybe one or two other commissions could have been involved. Perhaps the Public Service Commission could investigate and if it felt the case got to first base could ask the Judicial Service Commission to appoint a tribunal. But that is not what we got.
SHOULD PEOPLE BE ABLE TO ESCAPE BY RESIGNING?
Various explanations have been suggested for the decision by two commissioners to resign rather than face the Tribunal, including preserving financial entitlements.
I want to focus on Article 75. This says that if any state officer (which includes commissioners) is removed from office because they violated a provision about conflict between personal interest and public duty, or behaving in a way that demeans their office, certain financial misbehaviour, or taking on some prohibited paid position, is permanently disqualified from holding state office.
If the idea is that people who have shown themselves not to be fit for state office in the past should be excluded from it in the future, is it right that they should be able to escape this by resigning so they cannot be dismissed? This is one of the reasons why Chapter Six on Leadership and Integrity seems weak.
It is unfortunate that the Constitution did not allow the removal procedure to go on even if the person has resigned. It is not clear that an ordinary Act of Parliament could now do this. And it would not be desirable when the removal procedure is as flawed as that for removing IEBC commissioners.
A cloud of suspicion or worse does not seem to deter Kenyan governments from appointing people – or Kenyan voters from voting for them.
And Kenyan courts have been slow to hold that clouds of suspicion make a person unfit to be appointed. In the Mumo Matemo case in 2012, the High Court did say that if there are “sufficient serious, plausible allegations which raise substantial unresolved questions about one’s integrity” it would be wrong to appoint them. But the Court of Appeal decided that an appointment could not be prevented other than by proof of the wrongdoing – suspicions could not be enough.
The case was going to the Supreme Court – but the individual in question resigned, not only preventing the Supreme Court case from proceeding, but also bringing a halt to removal proceedings that had reached the point of the President’s appointing a tribunal.. In fact the Supreme Court could have proceeded but chose not to.
The issue is not easy. It is important to prevent harassment of officers by false accusations. But it also unfortunate that Chapter Six can be so easily evaded.