One of the key features of the Constitution 2010 was the creation of a distinct class of institutions vested with very important functions vital for the posterity.
They oversee sensitive issues including electioneering, land administration, human rights protection, the appointment of judicial officers, determination of salaries of public and state officers, revenue allocation, national audit and budgeting and human resource management of police, teachers and public service. .
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Article 248 of the Constitution classified them into Constitutional Commissions and Independent Offices. The Commissions included NLC, Public Service Commission, IEBC, JSC, KNCHR and NPSC; whilst the Independent Offices are the Auditor General and Controller of Budget. They are required to serve Kenyans independently.
Apart from investigation powers, some bodies such as the KNCHR, JSC, NLC and the Auditor General have the power to issue a summons to a witness to assist in their investigations. They can also sue any organ of government if they believe it is betraying the Constitution, national values and principles of governance.
Moreover, cognisant that the transfer of certain functions from the Executive and Parliament would not sit well in some quarters, the drafters of the Constitution inserted a protection clause that ensured those functions could never be taken away via simple constitutional amendment as was often the case. Article 255 (g) of the Constitution requires any attempt to amend the Constitution that interferes with them to be subjected to a referendum.
Of all the commissions and offices, I would rank the Auditor General, the KNCHR, SRC and SC among those that have stood out in the past seven to eight years. Former Auditor General Edward Ouko was consistent and vocal in demanding fiscal accountability in exposing malpractice in all organs of the Government, especially the Executive in the county and national levels.
From the onset, KNCHR tried to keep the government on its toes regarding human rights abuses, especially those involving the security sector operations, state overreach and protection of rights of marginalised communities. In December 2014, they successfully moved to court to challenge sections of the Security Laws (Amendment) Act that threatened an array of human rights, including freedom of expression, free press, fair trial and privacy among others.
Earlier, they succeeded in getting the entire Presidential Benefits invalidated for unlawfully giving huge perks to retired presidents, prime ministers, vice presidents and speakers without consulting the Salaries and Remuneration Commission, which has exclusive power to determine salaries.
Ironically, the SRC did not participate in the case, yet its power was being usurped by the Executive and Parliament. They were also steadfast in the protection of Miguna Miguna’s rights when he was unlawfully deported.
The SRC on its part has been perennially on the spot for standing in the way of attempts by the Senate and National Assembly members to increase their salaries, benefits and pensions without considering the economic viability. SRC has been threatened with budget cuts. It is unclear whether it finally capitulated since it was silent when MPs passed a law giving all current and past MPs pensions of Sh100,00 per month - for life.
The JSC, which by constitutional design took away presidential interference in the appointment of judicial officers has on many occasions locked horns with the Executive for its choice of superior court Judges.
This power is vital for ensuring independence and neutrality of courts and has led to attempted amendments to the JSC Act and outright refusal by the President to appoint names forwarded to him despite several court orders.
Other commissions have also tried to stand their ground to varying extents. However, threats of defunding and actual defunding of some by the executive and Parliament, and choreographed appointment of ‘Trojan horse’ Commissioners and Chairpersons has compromised the respective institution’s mandates and independence.
Meanwhile, others have willingly abandoned their mandates and behave like government departments and betrayed ‘Wanjiku’ and the constitution.
-Mr Kiprono is a Constitutional & Human Rights Lawyer. [email protected]