As Kenyans marked the fifth anniversary of the 2010 Constitution described as one of the most progressive world over, not much attention was paid to the independent commissions created to spearhead its implementation.
Yet these commissions continue to gobble billions of taxpayers’ money, and the public would expect a report card with a long list of Bills they have drafted to help achieve the five-year deadline for implementing the Constitution.
It was not going to be a walk in the park in realising the transition from the old constitution, and it came as no surprise when the National Assembly’s Constitutional Implementation Oversight Committee chairman Njoroge Baiya brought a motion to extend deadline for the passing of some laws by one year.
One might be forgiven for asking what the National Assembly has been doing to operationalise the constitution in the past five years, and the role the independent commissions have played in meeting the prescribed deadline.
Lawyer Demas Kiprono contends that the commissions have done little to realise the spirit of the Constitution.
“Some have attempted but have not achieved the mandate for which they were formed. They lack accountability for numerous constitutional violations, such as the provisions on leadership and integrity. We have commissions to deal with that but they have not, so far,” he says.
Integrity in leadership, is one about which Kenyans were obtained a very clear picture regarding the kind of leaders they wanted, and accordingly entrenched in Chapter Six of the Constitution.
Prior to the 2013 General Election, a petition was filed in court over the integrity of President Uhuru Kenyatta and his Deputy William Ruto in regard to their suitability to hold public offices in light of crimes of humanity charges they were facing at the International Criminal Court.
The five-judge bench hearing the case was clear in its judgment that the Constitution had established commissions to deal with the issue, and conveniently passed the buck to Independent Electoral and Boundaries Commission as well as the Ethics and Anti-Corruption Commission. Of course, the duo was cleared.
With time, Chapter Six still remains a pipe dream in the absence of laws to give it meaning as no individual has been barred from holding public office despite outcry from members of the public over the character of some of current public officers.
One of the biggest gains of the current Constitution was the devolution of power from the central government to county governments. The institution tasked to oversee the transfer of powers to the devolved units is the Transitional Authority.
Of all the independent commissions, the Transitional Authority ranks among the most important, being at the centre of political intrigues of power struggle.
Unable or unwilling?
TA was a creation of Parliament through the Transition to Devolved Governments Bill, 2012, which sought to provide a framework for a coordinated transition to devolved governments in accordance with Section 15 of the Sixth Schedule of the Constitution.
Among its functions were to develop a framework for the unbundling, transfer and separation of functions between national and county governments, determine resource requirements for each of the functions, prepare an inventory of all the existing assets and recommend effective management of assets of the national and county governments.
Little can, however, be said of the authority in coming up with Bills to aid smooth operation and transfer of functions between the levels of government.
It should surprise no one then that the Council of Governors has resorted to seeking the intervention of the Judiciary to address conflicts with the central government, the Senate and the National Assembly in areas where the Transitional Authority should otherwise have designed Bills outlining the roles of each organ to avoid the conflicts.
The latest war between governors and the National Assembly over the proposed Health Bill where the Council of Governors want it withdrawn and drafted afresh before its introduction for debate is an example of failure by TA to ensure smooth operations between the two.
The authority’s stark failure was laid bare when governors went to court to contest management of county roads, which were also being claimed by the National Highways Authority.
Governors accused TA of sitting on the fence and failing to draw guidelines about the transfer of the function of managing county roads. It was the same script when governors went to court to seek the release funds to counties after the authority failed to facilitate the transfer.
In other instance, governors have taken the national government and Parliament head-on when, for instance, TA failed to provide guidelines in the transfer of personnel from the national government to the counties, in supremacy battles with senators and in their fight for additional funds to county governments.
Separately, the controversy over the two thirds gender rule is another hot issue that has thrust the National Gender Equality Commission into the limelight.
The Constitution is clear that no one gender should occupy more than two thirds of positions in state offices, both appointive and elective. The debate arose prior to the 2013 election and when the Supreme Court’s opinion was sought, the judges were of the opinion that a law must be enacted by August 2015.
More than two years after the Supreme Court pronounced itself on the matter, the Gender Equality Commission has not succeeded in getting the National Assembly to enact a Bill to realise the constitutional provision on gender equality.
A constitutional commission established pursuant to Articles 27 and 43 to promote gender equality and freedom from discrimination, the objective of the NGEC is to ensure there are no inequalities and discrimination against women, men, disabled persons, youth, children, elderly and marginalised communities.
Law Society of Kenya chair Eric Mutua said he would give the commissions an “average” rating.
“It was not going to be easy, particularly with forces bent on stifling constitutional implementation. But the commissions have tried their best in getting the implementation on track even if it means going to court to ensure government agencies do not violate the constitution,” says Mutua.
The lawyer singles out the Independent Policing and Oversight Authority which sued the National Police Service Commission for violating the law in the recruitment of 10,000 police officers, leading to nullification of the recruitment process.
The Salaries and Remuneration Commission (SRC) is another institution that more than often finds itself in political and trade union disputes. Despite the commission’s spirited efforts to put a ceiling on public servants’ wages, it is often overruled by politicians and the courts.
The first sign that it was not going to be an easy ride for SRC started when MPs flatly rejected a ceiling put on their earnings by the commission. The legislators went ahead to disregard SRC recommendation and in a way managed to arm twist the commission into having their way.
The recent ruling by Industrial Court Judge Justice Nduma Nderi in a salary dispute between teachers and the Teachers Service Commission brushed aside the role of SRC in determining salaries; the judge ruled that the dispute was between teachers and their employers, and that SRC has no role in determining how much teachers should earn.
The intrigues are testimony to the toothlessness of the commission, which has failed to come up with clear policies or laws to govern salary for public servants.
The same can be said of the Commission for Revenue Allocation, which has been at loggerheads with county governments over allocation of funds, and at one time had to be ordered by the court to release part of county funds to avoid crises in the devolved units.
In doldrums as well is the Public Service Commission, on which much public expectation was placed to level the playing field in the public service.
Alongside the National Gender Equality Commission, PSC was tasked with guaranteeing gender balance and equality within the public service, where the SRC would ensure that the wage bill remains manageable and does not surpass the country’s gross income.
As the commission tasked with managing the country’s human resources in the Civil Service, PSC ought to have developed regulations to stop the constant accusations being thrown at the government over nepotism, tribalism and cronyism associated with public appointments.
Lawyer Kibe Mungai is of the opinion that most of the commissions have performed reasonably well in light of the political pressure and presence of forced bent on frustrating full implementation of the Constitution.
“Most of the commissions could have done better in ensuring the constitution is fully implemented but they are operating in a political environment that, in many instances, hampers their operations. They have generally done an average work, which is still commendable.”
Despite the challenges, however, the commissions should be above giving excuses of external forces hampering their operations, more so because the Constitution empowers them as independent institutions, only answerable to the public and the constitution they are supposed to implement.^