Ten years ago in April 2012, the chairs of the newly established Constitutional Commissions and Independent Offices inaugurated the joint forum of Chairs of the Chapter 15 institutions.
The meeting agreed on a structured inter-commission framework that would enable them to meet their joint objectives articulated in Article 249 as protecting the sovereignty of the people, holding State organs to account, and promoting constitutionalism.
Initially chaired by current Rarieda MP Otiende Amollo, who was succeeded by Charles Nyachae, those early days of extreme optimism were heady, as these nascent bodies saw in the Constitution the possibility of remaking Kenya for the benefit of its long-suffering population. They also recognised that those that had enjoyed the trappings of unaccountable power would fight, hence the need to stick together.
To their credit, these institutions accomplished much, taking their mandate of holding State organs to account and promoting constitutionalism religiously. Those were the days of regular advisories by CIC’s Charles Nyachae on which institutions were impediments to the implementation of the Constitution. Sarah Serem’s SRC was in constant trench warfare with MPs who were trying to unlawfully increase their salaries.
The CRA under Micah Cheserem was in weekly bouts with the Treasury over allocations to county governments. No one forgets the incessant fights between NLC’s Swazuri and Charity Ngilu’s Ministry of Lands over mandate. Many in leadership constantly complained about this “activism” by publicly funded bodies.
When Jubilee took power in 2013, a strategy of “subsume or subdue” was gradually applied. This was effected through reduced or delayed funding, withdrawal of support by the bureaucracy, attempts at divide and rule, or just plain obstinate constitutional violations including refusal to obey court orders. By 2016, when the first commissioners were leaving office, the State was largely winning. It was no wonder that Government refused to extend the term of the CIC despite the obvious need. Jubilee also became more involved in determining who would be appointed for the new terms.
Since then, the performance of these institutions has been mixed. Some have performed with excellence. Others are at best an extension of a lethargy-full bureaucracy. The population is generally unhappy with the performance of some commissions and would off-load them if there was an opportunity. As the Commissions and Independent Offices look back on the hopeful early years and plan for the next decade, there are useful lessons to be learnt.
The first is to remember why the Constitution required the creation of independent bodies on key governance sectors. It was a dissatisfaction with the workings of the bureaucracy in those sectors. It was a desire to have independent bodies who would look out for the interests of the citizens, that would hold the State to account and ensure that it did not violate citizen rights.
Accomplishing this mandate needs courageous and visionary leadership. Governments the world over do not like oversight, and they will either incorporate their interlocuters or fight. The institutions, if intent on achieving the Article 249 objectives, must seek strategic alliances in the non-State sectors so that they are not isolated when the State tries to subdue. Secondly and related to the first, the public is the best ally if they accomplish their objectives.
They would need to keep the public engaged as partners in the achievement of these objectives. The people must see the loss that would occasion in their absence. Finally, they would need to hold together or as the old adage goes, be ready to hang together. Unless they invest in keeping hope alive for Kenyans, it won’t be long before the clamour for their removal intensifies, and Kenya will be the long term loser.