Independent commissions, among them the Independent Electoral and Boundaries Commission (IEBC) have suffered from political interference since the promulgation of the 2010 Constitution.
What is happening at IEBC is therefore nothing new, because the Wafula Chebukati-led commission has perhaps suffered from the biggest assault and turbulence over the years.
Trouble for IEBC began before its birth when after its predecessors, the Interim Independent Electoral Commission of Kenya (IIEC) and Independent Interim Boundaries Review Commission were dissolved.
A panel led by Dr Ekuru Aukot came under pressure from politicians who demanded that the shortlisting exercise be repeated because IIEC commissioners who applied were omitted.
To make matters worse, the constitution of the IIEC itself was mired by political open manipulation and political juggling by President Mwai Kibaki’s PNU and Raila Odinga’s ODM.
Despite the requirement that those to be hired were not to be officials of any political parties, those appointed were allies of politicians, including Andrew Ligale of ODM at the time who became IIEC chairman.
Other commissions that have rode through political waves include include the Salaries and Remuneration Commission (SRC) and the National Land Commission.
The SRC has been repeatedly targeted because of its position on capping MPs salaries and the wanton abuse of allowances.
The Ethics and Anti-Corruption Commission (EACC) has also not been spared because it investigates hundreds of cases involving grand corruption and grabbing of public land by politicians and senior public servants.
Political analyst Gitile Naituli of Multi-Media University advises that nothing short of making drastic changes in the recruitment of commissions can save the situation.
“Their independence will only be guaranteed and protected when commissioners are recruited by a body similar to the Judicial Service Commission,” says Prof Naituli. That is because politicians will play no role in the process, once applicants are approved by the commission, apart from the President, whose mandate is limited to appending signature of approval.
Currently, the nominees are vetted by a panel consisting of people either handpicked by the president or by powerful chiefs in government and the opposition.
The current system creates room for politicians to populate the commission with bootlickers who cannot only expose the country to ridicule but also generate conflict that can lead to civil strife. So a commission similar to JSC will end the practice of the Executive, constitution a vetting panel and giving it a the list of people he or she wants appointed.
During the Supreme Court hearing of the presidential petition, Judge Njoki Ndung’u sought to know from former Attorney General Prof Githu Muigai what ails independent commissions in the country.
Prof Muigai was a member of the Constitution of Kenya Review Commission (CKRC) which had its own share of challenges and drama from commissioners allied to politicians.
The review process was a politically charged affair that began through a Kanu party initiative, after the Inter Parties Parliamentary Group select committee was formed by the eighth Parliament in 1997 to review the constitution. After a long feud, two parallel processes were merged in June 2001, after commissioners from the Ufungamano process were merged with those appointed by Kanu hawks close to President Daniel Moi.
Each regional Kanu kingpin had earlier hand-picked a commissioner from their communities before Prof Yash Pal Ghai was invited to take charge of the process.
He however insisted of incorporating the Ufungamano side led by religious groups and civil society leading to the absorption of 12 additional commissioners for a total of 27.
The commission was, however, bogged down by political intrigues, scandals and complains by Ghai over attempted misuse of funds and a determined effort by powerful Kanu politicians to divide it.
At one point, Ghai was left startled, when a group that was loyal to Kanu secretly visited state house without his knowledge of his and other commissioners. Some were featured attending a Kanu meeting when the commission was in the field collecting views from Kenyans ahead of the Bomas conference. The fallout between the ‘Cherera four’ and the Chebukati three is therefore not surprising.
Three months ago, the current MPs vowed to initiate the process of disbanding SRC following its decision to scrap sitting allowances in plenary sessions before elections in August.
The MPs complained to the Parliamentary Service Commission (PSC), accusing SRC of overstepping its mandate and demanded that the decision be challenged in court.
The SRC had scrapped sitting allowances in the gazette notice in a bid to save taxpayers over one billion shillings annually but the MPs warned that they could also slash the budget allocated to the commission.
The National Land Commission was required to change fundamentally the law and practices about land holding and alienation, and remedy present and past historical land injustices. Nothing much has been accomplished because the commission has been faced by incessant infights and corruption allegations over the years.
The Ethics and Anti-Corruption Commission investigates and recommends prosecution of state officers over corruption and other integrity issues. That makes another target of politicians and public servants facing integrity, who frustrate the commission arguing that charges against them are politically motivated.
In 2011, MPs ganged up and kicked out the Kenya Anti-Corruption Commission (KACC) Director PLO Lumumba for allegedly pursuing cases on the misuse of Constituency Development Fund (CDF) funds. The momentum to get PLO out of Integrity Centre was driven by MPs who accused him of exposing them to public ridicule by turning the anti-graft searchlight solely on their colleagues.
The commission had at the time warned that only those politicians with integrity questions would have been allowed to vie for office.
They also claimed Lumumba was engaged in “treacherous acts” of inciting the public against them and damaging their credibility over their misuse of Constituency Development Fund (CDF).
Another analyst Prof Amukoa Anangwe argues that independent commissions in Kenya are supposed to work like those created in the US.
They are called the fourth branch in the US and are therefore quasi-judicial in the sense that they cannot be deemed to be part of the other three arms of government. He, however, thinks that although they were supposed to play their roles independent, it is not possible in the Kenyan contest because they were politically created.
“The commissions operate in a political environment, just like other branches of government which is normally very fluid,” he says.
They face political challenges because they are given money by the executive and therefore require ingenuity from their leadership to navigate through political hurdles.
Prof Anangwe regrets that most of the time they are overwhelmed by political interests and and are therefore exposed to the vagaries of politics.
“Until their activities become non-controversial, that is when they will enjoy independence but as much as what they are doing generates politics, they will always attract pressure,” says Anangwe.
Politicians are not supposed to be involved in their appointment though as a sort of compromise they have to be approved by Parliament. Writing about the independence of commissions, Prof Jill Cottrell Ghai says commissioners should exercise their constitutional mandates because cannot be sacked except through a complex procedure rather like that for dismissing judges.
For their independence, their salaries are not supposed to be subject to an annual vote in Parliament but are guaranteed.
She says they have a single term of office of six years and should therefore not be tailoring their actions to the prospect of a new term of office. Every Kenyan has a right to petition Parliament for the removal of commissioners for whatever matter that is in public interest.
As the bickering over IEBC rages, issues recommendations by the Supreme Court have been thrown to the back banner. The court noted that there are legal, policy and institutional reforms required to address the ‘glaring shortcomings within IEBC. The first proposal was on corporate governance, with a recommendation for Parliament to consider enhancing the statutory and regulatory framework on policy and administrative remit of IEBC.