Taking stock of constitutional commissions

By Abdikadir Sugow

NAIROBI, KENYA: Since the Constitution was promulgated in 2010, Kenya has gone through a historic transition.

The new Constitution, touted as a role model for Africa’s fledgling democracies, is turning out to be a test case for Kenya’s emergent new system of governance based on upholding the people’s rights and the equitable distribution of resources.

The Constitution created dozens of commissions, some of which appear to have overlapping roles.

As a result, Kenyans are asking: what have been the constitutional commissions’ mandates and are they performing to the expectations of the country? Does the nation need all these top-heavy and expensive constitutional commissions with the country’s still-fledgling economy? Answering these questions would be to critically look at the specific mandates and timelines allocated each of the about 20 created since 2011, audit the work they are doing and the expenditure they incur from public coffers.

Lawyer Ahmednassir Abdullahi, a member of the Judicial Service Commission (JSC) has suggested that all State commissioners’ jobs should be made part-time to cut on wage bill. JSC commissioners operate on part-time basis.

Ahmednassir, whose commission is mandated to vet Kenyan judges and other judicial officers, says commissioners take billions from the national Treasury in the form of allowances.

“Our recurrent wage bill is just too high to sustain and we are sacrificing our development agenda by paying unrealistic salaries and allowances. How do you justify permanent commissioners? What does the average day of a commissioner entail?” said Ahmednassir in an opinion write-up in a local newspaper.

However, lawyers Nzamba Kitonga and Otiende Amollo, who both were in the Committee of Experts (CoE) on Constitution Review argue that not all commissioners should work part-time because of the scope and nature of their workload.

Ad hoc basis

“Some commissioners should be left to work full-time and others on an ad hoc basis. A process of needs assessment should be initiated,” explains Kitonga, former chairman of the CoE that drafted the Constitution. Amollo, the chairperson of the Commission on Administrative Justice (Ombudsman Office), says different commissions have different work routines while addressing different work diversity and delivery.

He says his office, which has only three commissioners, handles almost 50 complaints daily from members of the public, some in written form and open letters delivered in person or sent vie email and also short phone text messages.

He says the work of some State commissions remains continuous while others are just to review and recommend issues affecting the society within a specified period.

While the law is clear about the commissions’ mandates, there is a growing feeling among many Kenyans that these commissions have become a burden on the national Treasury, because for some of them their full-time status is constitutionally entrenched. This has given rise to the argument that the terms of reference, conditions of service and the remuneration of these constitutional commissions need to be reviewed to curb the notion that they have become a gravy train.

Combined, these commissions have more than 150 commissioners who are paid top level salaries, allowances, vehicles, bodyguards, support staff and other benefits whose costs amount to billions of shillings from the taxpayers’ kitty.

Among the constitutional commissions are the Commission on Revenue Allocation (CRA), the National Cohesion and Integration Commission (NCIC), the Salaries and Remuneration Commission (SRC), the Commission for the Implementation of the Constitution (CIC), the Truth, Justice and Reconciliation Commission (TJRC) and the Kenya Human Rights Commission (KHRC).

Others are the National Gender and Equality Commission (GEC), the Ethics and Anti-Corruption Commission (EACC), the Commission on Administrative Justice (Ombudsman), the Independent Electoral and Boundaries Commission (IEBC), the National Land Commission and the Transition Authority (TA).

SRC, which is currently embroiled in a tussle with legislators who have been angered by their decision to slash MPs’ pay from what they used to earn in the last Parliament, is a case in point.