KNCHR commissioners have demonstrated contempt in bid to remove Jaoko from office

By Donald B Kipkorir

"...woe to the Shepherds...that feed themselves ... and not the flock..." [Ezekiel 34: 1-3]

For long, the Commissioners of Kenya National Commission on Human Rights (KNCHR) have subjected us to the theatre of the absurd in their several attempts to overthrow Florence Jaoko, its chair.

The reductio ad absurdum of their antics was when last week, commissioners ‘voted’ to eject her and concurrently appointing a caretaker chairman in Lawrence Mute.

The entire episode would have been normal and ordinary were it not an egregious violation of the new Constitution and the law, and in addition most if not all of the commissioners being lawyers.

KNCHR came to being by dint of The Kenya National Commission on Human Rights of 2002, that then President Moi assented to on October 24, 2002 and become operational from March 12, 2003. The Act sets out the procedure for appointment and removal of the commissioners, including the chair.

By it, the positions are advertised, applications received, those qualified short-listed and vetted by the National Assembly, and from the list, 12 names forwarded by the Attorney General to the President to pick nine commissioners. All Commissioners are entitled to a term of five years, renewable once to same period.

Under Article 248 of our new Constitution, KNHCR shall merge with the Gender Commission to be a Constitutional Commission. The Constitution provides that the chairs of KNCHR and the Gender Commission shall be automatically the chair and vice-chair of the new commission. Further, the Constitution shall apply immediately to the unexpired terms of all the commissioners. If this be the law applicable, did the renegade commissioners comply with it?

The Constitution provides for the process of removing a commissioner, while the Act does for the removal of a chair. For clarity and completion, both the Constitution and the Act have to be read together. To remove a commissioner, any interested person has to petition the National Assembly who in turn on finding a prima facie case, refer it to the President who will appoint a tribunal. To remove the chair, a petition is made to the Chief Justice who will again on finding a prima facie case appoint a tribunal. Appointing a tribunal is not mandatory.

These provisions of the law indicate clearly that removal as a commissioner demands higher standard and more rigorous process. Removal as the chair does not necessarily mean removal as a commissioner. The two removals can therefore be concurrent or mutually exclusive.

The objects of KNCHR as provided for in the Constitution are inter alia to protect and secure the observance and protection of democratic values and constitutionalism whose central pillar is the rule of law. Legal scholars and jurists are not agreeable on the exact meaning of rule of law, but agree on its outlines. Prof Albert Venn Dicey (1835-1922), an unrivalled doyen of constitutional law defined rule of law to mean absence of arbitrary power, equality of all before the law and due process for all.

In attempting to remove Ms Jaoko in the way they did, the KNCHR commissioners violated the very foundations of all known constitutional principles, including of its own creation.

Antecedent to the rule of law are two principles of law that all the commissioners being lawyers are cognisant of, viz. nemo inauditus condemnari debet (that no one should be condemned unheard), and nemo debet esse judex in proprio causa (no one should sit in own judgement). It is for this reason we have courts or tribunals to determine disputes or complaints. And it is why both the Act and the Constitution demand of the Chief Justice and the President to appoint a tribunal to decide on the removal of the chair or commissioners. A tribunal shall once constituted, receive the petition, invite the presentation of the complaint and the defence and on evaluating the evidence, decide on removal or otherwise. The commissioners have demonstrated contempt for this process.

We cannot speculate why the commissioners have always wanted the removal of Jaoko since she took over from Maina Kiai as they have not shared it with us. If the commissioners are sufficiently aggrieved Jaoko cannot perform as a chair, then let them be bold enough and append their names and signatures to a petition to either the Chief Justice or National Assembly. We will not allow them to hide behind closed doors and remove the chair by "Kura ya makelele"!

Kenyans by majority voted for the new Constitution and have to guard it with jealousy. Articles 1 and 2 of the Constitution bind all Kenyans to protect it.

If we allow seven commissioners of KNCHR to violate it, next, another group will take cue and soon every other group and persons all the way to the President will do it. At this formative stage, there has to be strict observance and adherence of the Constitution.

Let the commissioners call as many press conferences as they want, but we should never validate their actions by also joining mob-lynching of Jaoko.

The chair has not refused to resign but has asked that the commissioners follow the law if they want to remove her. And this is what the commissioners have for own reasons refused to do. The public and the media ought not to join in the stone-throwing when Jaoko asks that the letter and spirit of the law be upheld. Who stands to benefit if Jaoko is removed? Kenyans or one of the seven commissioners? Is it so hard to obey the law we have just promulgated? Are we are so forgetful as a people of our search for new Constitutional order?

—The writer is an advocate of the High Court.