The postponed promise

Post-2010 constitutional failures: From unbundling functions from the national to county governments, to actively championing for the passing of key laws, little has been done to nudge on the process of implementation



Newton Arori
The Constitution of Kenya establishes 10 commissions and two independent offices. These organs are designed to reinforce the system of checks and balances among constitutional institutions. Scholars have argued that the independent Commissions and Offices were formed to protect against abuse of power by the Executive; that such abuse was commonplace during previous regimes chiefly because the traditional imperial Presidency wielded too much power.
Article 249(1) of the Constitution sets out the objects of the commissions as to (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.
The Constitution further provides that the commissions are subject only to the Constitution, and are independent and not subject to direction or control by any person or authority [Art 249(2)].
Some have argued on this basis that the commissions are the de facto fourth arm of Government. These institutions now have tremendous power in public affairs, which power previously belonged to the Executive and Parliament.
The commissions and Independent Offices are therefore a progressive feature, and as such, their creation heralded a new era in constitutionalism and the rule of law. Yet, their delivery so far has fallen way below par. This article highlights major shortcomings that have raised questions on the commissions’ utility, as well as suggests possible remedies.
Ethics and Anti-Corruption Commission (EACC)
As a matter of consensus, the Ethics and Anti-Corruption Commission (EACC) has been a total, unmitigated failure in combating corruption. Now, the magnitude of corruption in the country is nothing short of alarming. There are several pointers to this. A recent report by the Auditor-General has revealed that up to 60 per cent of the national budget is stolen annually. On the 2014 Transparency International Corruption perceptions Index, Kenya was ranked 145 out of 175 nations. This easily secures its place as one of the most corrupt countries on earth.
So what ails EACC? As has been argued, there is lack of political goodwill in fighting corruption and thus, the EACC cannot effectively execute its mandate. Put differently, EACC needs a supporting Legislature to fight corruption. The lack of political goodwill can be attributed to vested interests among parliamentarians, who then hinder the proper functioning of the EACC.
For instance, it is asserted that EACC – compared to other anti-corruption agencies in the world – is a toothless entity: “…Just as the now-defunct KACC, EACC is unique in that it possesses neither prosecutorial powers nor enhanced investigative muscle. Without at least one of those bundles of power, it is difficult, if not impossible, for an anti-corruption agency to prosper…. This lack of power has clearly hampered effectiveness…. ultimately, the EACC must have at least one of independent prosecutorial power and enhanced investigative power in order to succeed” [Dalmas Okendo, Ivy Muriungi & Ayesanmi Alonge, (2013) “Anti-Corruption Agencies and Prosecutorial Power: Which way for Kenya?”]
The authors reiterate that political goodwill and social push for reform are vital. They write: “Beyond prosecutorial powers, these factors impact greatly on the success of anti-corruption agencies. This would mean a significant investment on the part of the government of Kenya in terms of dedication, finance and other resources to fight corruption. The society itself needs to be vigilant and aware of corrupt practices and develop a no tolerance attitude towards corruption.”
Independent Election and Boundaries Commission (IEBC)
The IEBC is faulted mainly for the procurement of Biometric Voter Registration (BVR), Electronic Voter Identification (EVID) devices and electoral transmission systems that failed on Election Day.  While the jury is still out on exactly how this failure affected the 2013 election, it is quite clear that there were massive irregularities in the procurement process.
This is evident in the report of the Auditor-General on the Financial Statements for National Government for the Year 2013/2014 (Paragraph 532). It is noted, among other issues, that The Commission has not adequately responded to and resolved this audit issue, which formed the basis of qualification of the financial statements in the year 2012/2013.
The Commission procured several elections equipment, including Biometric Voter Registration (BVR) at Sh6.4billion, Electronic Voter Identification Devices (EVID) at Sh1.3billion, Universal Poling Kits (UPK) at Sh1.53billion and Electronic Results Transmission System (ERTS) at Sh25.8million. However, the Commission did not have an approved Procurement Plan for the year, the implication being that the above items were procured contrary to the Public Procurement and Disposal Act, 2005.
Little wonder then that Kenyans have lost confidence in this vital body. A survey done by Ipsos in May this year demonstrated this lack of confidence. Of the respondents polled, only 35 per cent had “some confidence” in the commission. 19 per cent said they had “little confidence” while 28 per cent registered “no confidence at all” in IEBC.
One suggested solution is that IEBC needs a complete overhaul. Notes Professor Ben Sihanya: “If Kenya is to ever have free, fair, transparent and verifiable elections, IEBC has to be thoroughly restructured and the Commissioners replaced. Once Kenyans have raised doubts and genuine concerns over the operation of such a crucial commission, nothing will restore their confidence unless a new commission is established or at least there is a replacement of the commissioners and the relevant purveyors of electoral impunity and lawlessness” [Professor Ben Sihanya, “Constitutional Commissions in Kenya: Experiences, Challenges and Lessons”. Presented at Conference on State Implementation of the Constitution since 2010, Laico Regency, November 20, 2013.]
Separately, the IEBC utterly failed to implement Chapter Six of the Constitution on Leadership and Integrity, even clearing people with overt integrity issues in the last general election. A case in point is Embakasi Central MP John Ndirangu Kariuki, whose eligibility to contest in 2013 General Election has been contested in court. Kariuki is among 27 individuals the Commission on Administrative Justice deemed ineligible to run for or hold public office because they had been criminally convicted for abuse of power, having been convicted of two counts of abuse of office by the Chief Magistrate’s Anti-Corruption Court in 2004 and fined Sh100, 000 for each count. Is it that the IEBC found every contender to be above board? Hardly!
National Police Service Commission (NPSC)
As per the Constitution, the National Police Service Commission shall— (a) recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service; (b) observing due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service; and (c) perform any other functions prescribed by national legislation.
In fulfilment of the above duties as stipulated by the constitution, the NPSC has so far disappointed on two main fronts. First there’s the annulled police recruitment exercise. NPSC disregarded the law by delegating its recruiting mandate to sub county committees. This was illegal because Article 246 of the Constitution is clear that the NPSC is the only body authorised to recruit members of the National Police Service.
Under Section 10 of the National Police Service Commission Act, NPSC is only authorised to delegate the function of recruitment of a police officer under the rank of a sergeant to the Inspector General of police. Despite these express provisions, NPSC illegally delegated its power to sub county recruitment committees. As it turned out, the recruitment exercise was marred with corruption, tribalism, nepotism and other malpractices.
In “Independent Policing Oversight Authority & Another v Attorney General &660 others (2014) eKLR” which was a suit brought to challenge the recruitment exercise, Justice Lenaola did not mince his words when nullifying the exercise: “I am satisfied that drastic action ought to be taken, painful or unpopular as it may be.
That action ought to be a lesson to NPSC and other constitutional organs that the Constitution is alive and well. It will resist all attempts to subvert its purposes. It will frown upon any attempt to invoke inconvenience as opposed to its letter and spirit. In the instant case, NPSC failed itself, failed Kenyans and failed the Constitution, and it must be told so.”
The second of NPSC failures was manifested in the form of the on-going vetting of police officers. The process ought to have been completed by August 2015, which means that the commission is hopelessly behind schedule.
More importantly, however, concerns are raised over the effectiveness and credibility process. Why, for example, hasn’t a single police officer been held accountable for human rights violations, yet the country has a history of human rights abuses by the police?
“…The (vetting) exercise kicked off without putting in place the pre–requisite measures such as a proper public engagement, proper investigations, proper information management, and proper measures of witness protection among others. All these consequently worked against the exercise and only served to erode public confidence further in the police. The vetting exercise was marred by allegations of corruption, with the focus shifting from accountability for human rights violations to a wealth declaration exercise which further raised serious credibility of the entire exercise, and its commitment to fulfilling its objectives. In a nutshell, this exercise, which was to have a huge effect on restoring public confidence in the police, has not achieved this noble goal, and would thus need to be critically looked at moving forward”  [Kenya National Commission on Human Rights (2014). “Are We Under Siege? The State of Security In Kenya: An Occasional Report” (2010-2014), P. 75].
Kenya National Human Rights and Equality Commission
The functions of the Commission include— (a) to promote respect for human rights and develop a culture of human rights in the Republic; (b) to promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development; (c) to promote the protection and observance of human rights in public and private institutions; (d) to monitor, investigate and report on the observance of human rights in all spheres of life in the Republic, including observance by the national security organs; (e) to receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been violated; (f) on its own initiative or on the basis of complaints, to investigate or research a matter in respect of human rights, and make recommendations to improve the functioning of State organs.
Article 59(4) of the Constitution empowers parliament to restructure the Kenya National Human Rights and Equality Commission into separate commissions. In exercise of this power, Parliament in 2011 restructured the commission into 3 commissions namely – the Kenya National Commission on Human Rights, the Gender and Equality Commission and the Commission on Administrative Justice, also known as the Office of the Ombudsman.
Overall, the commissions have done well in their respective duties. The Gender and Equality Commission has been active in championing gender equality. The Office of the Ombudsman has also intervened in matters of maladministration. Similarly, the Kenya National Commission on Human Rights has highlighted human rights violations in its reports. However, it is argued that there is an overlap of mandates among the commissions, with the Auditor-General recommending the merging of the commissions to cut costs.
Commission on Implementation of the Constitution (CIC)
The Commission for Implementation of the Constitution (CIC) is established under Section 5 of the Sixth Schedule. The commission is established as an independent organ to monitor, facilitate and oversee the process of implementing the Constitution.
CIC is what could be considered the best performing commission perhaps. As Professor Sihanya observes, CIC is credited for continuous interventions on matters touching on devolution and constitutional implementation. In particular, CIC has been at the forefront in commenting on how parliament handles the relevant bills. It has challenged parliamentary decisions through media outlets and briefings. It will be remembered that CIC has moved to court to challenge a number of unconstitutional laws.
Still, CIC has not fully delivered on some issues. For example, the High Court has faulted the commission for laxity and reluctance in preparing legislation that would see the realisation of the two thirds gender rule. Further, while the number of Bills prepared and submitted by the commission is commendable – most have been prepared by consultants even as commissioner pocket millions every month in allowances – the quality of its Bills is not without question.
It would appear that Kenyans will have to wait a little longer before they can fully realise the benefits of having independent commissions anchored in law.^
Writer is a fourth year LLB student at Kabarak University.



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