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Are independent commissions a burden or play a critical role?

 Judiciary staffer carries a constitution dummy ahead of the president's swearing-in at Kasarani in September 2022. [Denis Kibuchi, Standard]

Several reports on the performance of South Africa’s Chapter 9 institutions should make us reflect on the performance of Kenya’s equivalent institutions, our Chapter 15 commissions.

The South African and Kenyan institutions were formed out of a recognition that the existing institutions to hold government accountable, were not sufficient.

The 12 institutions formed by our Constitution were mandated, in Article 249, to protect the sovereignty of the people, ensure observance of democratic principles by state organs and promote constitutionalism.

In the minds of the framers of both the Kenyan and South Africa constitutions, these bodies would be watchdogs on behalf of the public. To facilitate their performance, they are independent at several levels. Their members, once appointed, have security of tenure. They cannot be removed without an elaborate process that involves a formal tribunal. Their remuneration is a charge on the consolidated fund.

They are funded through a direct vote, not through line ministries. They are not directed by any person in the performance of their constitutional functions.

Despite these laudable expectations, the reports from South Africa indicate that one factor has determined how effectively these institutions operate; the character of persons appointed to head them. The most visible demonstration of this reality has been the differences between the tenure of Lawrence Mushwana, the first Public Protector, the equivalent of our Ombudsman, and his successor, Thuli Madonsela.

Mushwana’s tenure indicates laxity in performance, which led the public to lodge few complaints. In 2009 for instance, only 12,000 complaints of maladministration were lodged compared to 2013 where a staggering 40,000 complaints were submitted when Madonsela took over.

In Mushwana’s term, even the Supreme Court criticised the Public Protector for political management of investigations. The performance of Kenyan institutions is not any different. The first commissions appointed after the promulgation of the constitutions showed tremendous promise.

The Constitution Implementation Commission rubbed the government of the day wrong on many occasions as it fought for faithful implementation of the Constitution. The Ombudsman, led by current Rarieda MP Otiende Amollo, pursued numerous cases of maladministration against government departments and issued countless advisories to guide government agencies.

The Human Rights Commission and the Gender and Equality Commission were noticeable in the diligent manner they sought to accomplish their mandates. Ten years later, these institutions pale in comparison to these inaugural commissions.

Doubtless, the success of these first institutions, which resulted in numerous skirmishes between them and the Executive, must have prompted the Executive to rethink the nature of individuals who would oversee these bodies.

Consequently, many of the persons appointed to the critical commissions after the expiry of the first terms have emanated from the political establishment, aware of their benefactors. While they are all eminently qualified and have performed their technical roles effectively, most have completely shied away from any actions that would make government unhappy. Parliament has also used funding to these institutions as a carrot or stick to manage those that may be tempted to play the independent card too strongly. It is no wonder that when human rights abuses have occurred there has been silence from the concerned agencies. The gender equality agenda pursued relentlessly in the days of Winfred Lichuma has long been left to civil society.

Of the National Land Commission, the less said the better. To many Kenyans the solution is to abolish these institutions as they are an unnecessary drain on the public purse. I however believe that in countries like Kenya where the opposition is weak and appears more invested in becoming part of government than holding it accountable, these institutions are still critical.

The question is how to ensure the persons appointed thereto are not extensions of government but truly independently minded. Every prudent government recognises that it is in its interest to have structured and institutionalised accountability mechanisms, a matter President William Ruto has mentioned in his support for a strong leader of opposition. One hopes in the next appointments of members of commissions, we shall see people who truly and faithfully reflect the spirit of Article 249.

-The writer is an advocate of the High Court of Kenya.


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