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Fund gender equity and human rights bodies instead of merging them

By Demas Kiprono | November 19th 2021

Kenya National Commission on Human Rights Director Research, Advocacy and Outreach Anne Marie Okutoyi (2nd left) hand over Survey report to former Police spokesperson Charles Owino(right) and Commissioner for Refugee Affairs Kodeck Makori (far left) at Movenpick Hotel in Nairobi. 

This week, the National Assembly debated a Bill that proposes the merger of the Kenya National Commission on Human Rights (KNCHR) and the National Gender and Equality Commission (NGEC). Among the justifications in the Bill sponsored by Ndaragwa MP Jeremiah Kioni is the desire to streamline the two institutions to improve effectiveness and to save taxpayer money.

In addition, the statement of objectives alleges that there is no real difference in functions between the two institutions since gender falls within the sphere of human rights. Yet, curiously, the Bill fails to consider the equality part of the mandate of NGEC. After the promulgation of the Constitution, the National Assembly created three commissions out of the KNCHR and Equality Commission created under Article 59.

The three were the KNCHR, NGEC and the Commission on Administration of Justice (CAJ), also called the Ombudsperson's office. Whereas KNCHR dealt with human rights and fundamental freedoms such as freedom from torture, NGEC dealt with gender, equality, non-discrimination and special interest rights. CAJ, on the other hand, tackled injustice by government officials in everyday decision making. In 2017, CAJ was further mandated by Parliament to oversee the implementation of the Access to Information Act. Article 59 of the Constitution establishes and gives them special status and far-reaching powers as constitutional commissions and independent offices. Similar bodies include the ODPP, IEBC, JSC, Auditor General, and SRC, which have essential mandates that would not be trusted with the Executive, as was the case pre-2010. Additionally, they report to Parliament annually.

Their respective chairpersons and members enjoy security of tenure to strengthen their independence. While the Constitution empowers Parliament to structure Article 59 Commissions, it is curious that there is a move to effectively repeal the NGEC and transfer its functions to a new outfit. It is noteworthy that their mandates are distinctly critical to realising the bill of rights, which is an essential pillar of the Kenyan constitutional architecture.

Like the Judiciary, the KNCHR has been a perennial victim of funding cuts. This raises questions about whether its mandate and value to Kenyans is appreciated. Moreover, many interpret the attempted wind up of NGEC as a continuation of the negative attitude towards gender mainstreaming and equality in Kenya. This was demonstrated by the repeated failure by Parliament to honour the two-thirds gender rule. It is noteworthy that once formed, the supreme law gives each Commission fully-fledged status under the meaning of Chapters 15 and 16. 

This means a referendum must be done before any fundamental alteration is made. These commissions are crucial as accountability mechanisms. They conduct investigations, compile reports, and provide valuable input in court processes to enrich the development of their respective mandates. Legislative proposals such as this one require evidence to support laws that have real-life consequences on the welfare and enjoyment of rights by the people and residents of Kenya.

In this case, apart from the broad and sweeping statements on the objects of the Bill, no hard evidence has been adduced to demonstrate the purported inefficiency, duplication of roles and waste of taxpayer money occasioned by the separate existence of KNCHR and NGEC. Instead of merging them, they should be adequately funded and supported. Their findings, reports and recommendations should be taken seriously and be the basis of legal and policy changes. They should guide how Kenya meets its obligations to protect, promote and fulfil every person's rights. 

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Since March 2018, the State has violated the rights of one of its citizens, Miguna Miguna, a Kenyan-born lawyer and political activist with impunity