Are watchdog commissions under threat?

By KENFREY KIBERENGE

On November 11, 2005, Ludeki Chweya, then a lecturer at the University of Nairobi, delivered an unflattering verdict on why the State established the Kenya National Commission on Human Rights (KNCHR) in 2003.

Dr Chweya, now the Home Affairs PS, told a keen audience at a workshop organised by the Centre for Law and Research International that the sole aim was to dilute the impact of the unofficial Kenya Human Rights Commission (KHRC), which had existed since 1992.

He further argued that as history had shown, the State-owned commission would serve as an errand boy to counter reports made by the civil society-funded KHRC. Many contributors at the forum agreed with Chweya’s sentiments.

Maina Kiai, the then KNCHR chairman, who was present, had a rough time reassuring a skeptical audience that his commission would do a commendable job that would dwarf gains by KHRC.

A few years into their work, KNCHR proved to be a monster to the very Government contrary to what, according to observers, had been intended. Some described it as "more NGO than the NGOs themselves".

During the 2005 constitutional referendum, the agency drafted a report on misuse of State resources, chronicling how Cabinet and assistant ministers in the ‘Yes’ and ‘No’ sides would pluck their GK number plates – and replace them with private ones – to cheat the public they were using personal vehicles. The law prohibited the use of State resources in the campaigns.

This would then snowball into the shocker, On The Brink Of The Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence, report it released on August 15, 2008. Today, the report, tabled at the Justice Philip Waki Commission probing post-election violence, forms part of the evidence relied on by the International Criminal Court in the trial of four Kenyans over the mayhem.

A month later, KNCHR unveiled The Cry of Blood, a report on extra-judicial killings and disappearances committed by Kenya Police in Kenya, in September 2008. The report indicted police chiefs, among them former Commissioner Maj-Gen Hussein Ali and the then Attorney General Amos Wako for allowing the vice to continue unabated.

When Kiai left the commission in 2008 and his deputy Florence Jaoko took over as chair and commissioner Hassan Omar as her deputy, many thought that was the last of the commission.

But the Jaoko-Omar partnership proved a nightmare to the Government, finishing – and perhaps perfecting – the work Kiai had started. But their twin departures from the commission in January appears to be the latest attempt by the of enthusiastic MPs, to clip the powers of watchdog commission.

Even before their departure, some commissioners had complained to their peers in other sectors that there was lack of support from the Executive as a result of the two reports.

Today, the commission is headed by Samuel Kipngetich arap Tororei in an acting capacity, effectively denying him the confidence that comes with job security.

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The no-holds-barred press conferences by his predecessors have since disappeared and the commission has been reduced to placing adverts on newspapers to present their positions. "How long can you have an acting chair? Can he feel confident?" posed a former KNCHR commissioner, who did not want to be named.

The KNCHR Act stipulates that all positions must be advertised within 14 days of falling vacant. It is now more than two months since the position of the chairman fell vacant. Away from KNCHR, Parliament appears to have succeeded in derailing the fight against corruption when in August last year, it disbanded the Kenya Anti-Corruption Commission (KACC). Parliament has since failed to beat the constitutional one-year time limit to have the new anti-graft agency in place.

The former KNCHR commissioner said since their twin reports, it had become evident the Government was now keen to have friendly people heading watchdog bodies.

"Whoever is appointed at the anti-graft agency must ask ‘how do I survive here?’ and that is wrong for watchdog bodies," said the ex-commissioner. It all started with a claim by Vice-President Kalonzo Musyoka at a church function in Meru on August 21, last year that some MPs had plotted to send then KACC director PLO Lumumba and his team home.

The following day, PLO made sensational claims that Assistant minister Cecily Mbarire had attempted to bribe him to stop investigating her husband Dennis Apaa over a scandal in the Water docket, claims Mbarire vehemently denied.

As fate would have it, two days later, the Ethics and Anti-Corruption Commission Bill was brought to the House for debate and Lumumba was put in the firing line. With several ministers and MPs under investigation by KACC, the EACC Bill was amended to remove a clause that provided the automatic transition of the incumbent commissioners into the new outfit, instead demanding that they vacate office and reapply for the jobs. Like the human rights commission, EACC has an acting chief executive, Jane Muthaura, since last August.

Last year, President Kibaki and PM Raila Odinga nominated Mr Matemu Mumo for chairman, and Jane Onsongo and Irene Keino as members of EACC, but the process of approval hit a brick wall when a House committee said it found them unsuitable for the job because they lacked "passion". Raila has since said the recruitment must be repeated.

But even before they assume office, MPs stand accused of watering down the authority of the new anti-graft body besides denying it powers to prosecute.