Are commissions of inquiry ineffective tools?

By Pravin Bowry

Whenever a crisis of any dimension surfaces, the governmental safety valve is to set up a Commission of Inquiry under the 1962 Commission of Inquiries Act. Whether this antiquated legislation has outlived its purpose in the form it exists is the question.

Setting up of Commissions is ideally a tool of government used to gather information which may then be used for decision making on a project, or to uncover the causes of serious accident or to deal with an episode which has political ramifications or even to determine criminal liability.

The President of the Republic is vested with the powers of creating inquiries, appoint the Chairmen and members, get their terms of reference and bestow powers to obtain evidence and conduct proceedings, including the power to restrict public access.

In the Kenyatta and Moi era there were at least ten Commissions of Inquiry or quasi-legal tribunals each. The Kibaki regime has had nine.

All the Commissions unravelled no past mystery; most recommendations were not acted upon and, more often than not, were used as an instrument of impunity, hoodwink public thinking and protect individuals.

There have been some interesting post-Independence Commissions such as the 1963 Commission of Inquiry into the Law on Marriage and Divorce, the Mtongwe Ferry Disaster Commission, the Commission of Inquiry into the Sale of the Grand Regency and also there have been Commissions relating to the National Anthem, Maize, Agriculture, Education and Public Service Remuneration.

Setting up of any Commission is an expensive affair, and in the context of its operations the tax payer loses billions of shillings. The Ouko Commission is authoritatively said to have cost up to Sh8 million a day and the Goldenberg Commission cost over Sh10 million a day.

The trend has been that Commissions are turned into cash cows with the judges and civil servants benefitting from the massive disbursements, some untaxed, with the Commissioners enjoying shameful luxury.

In the context of the Njonjo Commission, the abandoned Ouko Commission, the Hancox Insurance Commission, the Artur Brothers Commission, the Goldenberg Commission, and the Akiwumi Commission very little was achieved. Findings of some Commissions were never made public.

Before yet another Commission is set up, on most likely a new found scandal of mammoth proportions, the necessity and efficacy of the Commission of Inquiries must be examined.

In the Goldenberg Commission report the Commissioners were irked by many High Court injunctions against the Commission. "We also think that the time has come when the appointment of sitting judges to conduct public inquiries should be reconsidered particularly inquiries with political implications. It cannot be gainsaid that such issues are emotive and often generate violent public debate. At times uncivil language is used.

It is sometimes argued that Judges are more independent and are unlikely to be influenced in favour of one political persuasion or another. The appointment of a Judge does not however, depoliticise an inherently political issue. The tendency will be that those disagreeing with a report or decision of the Judge will seek to discredit the same by criticising the Judge and perhaps ridiculing him" said the Commissioners.

exclusion of evidence

The Commissioners recommended, "No sitting Judge should be appointed to head or participate in a public inquiry unless the Chief Justice has first satisfied himself that the nature of the intended public inquiry has no political implication and signified his consent to the appointment". Eligibility of sitting Judges chairing the Commissions is a matter which the Judicial Service Commission must consider.

Interestingly, parties have successfully sought to be exonerated or expunged from the recommendations of Commissions as happened in Prof Saitotifs application against the Judicial Commission of Inquiry into the Goldenberg Affair and Nicholas Biwottfs application against the Tribal Clashes Commission.

The only Commission of Inquiry which provided a meaningful way forward into the problem of post-election era was the innovative findings of the Waki Commission.

Deducing evidence, prohibiting receipt of evidence and even expunging evidence and arbitrary and discretionary powers of the Commissioners is a fundamental flaw. The Akiwumi Commission ruled that "the evidence made adverse against the Head of State must be expunged from those proceedings" and a gag order not to report that evidence in the media was imposed.

The rule of exclusion of evidence or persons from inquiries based on epublic interestf or estate securityf or ethe interest of the Head of Statef needs re-examination.

The Commission of Inquiry Act is one of those pieces of legislation that need to be made more meaningful, given more teeth to bite and procedural challenges surmounted. The Law Reform Commission must take up the matter.

In England, a matter of mammoth proportions involving over 30,000 documents was finalised in about a month by posting the documents on a website and interested parties given an opportunity to respond. Why not in Kenya? Presently it can be argued that the Commissions of Inquiry have been and remain an ineffective tool of justice.

-The writer is a lawyer.

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