Governance challenge at our independent commissions

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By Andrew K. Tanui

The events at the Independent and Electoral and Boundaries Commission (IEBC), one of the Kenya’s ten constitutional commissions, continues to bring into focus the architecture of the governance framework of these independent institutions as well as the intentions of the drafters of the Constitution.

A closer look at some of these constitutional commissions shows evidence of infightings between the Secretariat and its Commissioners as to their specific roles. Similar cases have been reported at the Ethics and Anti-Corruption Commission (EACC), the National Police Service Commission (NPSC), the Judicial Service Commission (JSC) and the National Gender and Equality Commission (NGEC). The question begs, why these governance challenges in constitutional commissions?

The Constitution of Kenya at Chapter 15 provides for the management and operations of constitutional commissions and independent offices. It provides that each commission should have a Secretary who is also the chief executive officer of the commission. It further provides that each Commission shall recruit its own staff and perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by the Constitution.

Legislative functions of the commissioners

Whereas the Constitution is clear on the powers and functions of the Commission, the respective Commissions’ enabling legislations have partly contributed to the governance challenges being experienced in Kenya.

The IEBC Act, 2011, as amended in 2016 provides that the chairperson and members of the commission shall be responsible for the formulation of policy and strategy of the Commission and oversight and the secretariat, headed by the Secretary, who shall perform the day-to-day administrative functions of the Commission and implement the policies and strategies formulated by the Commission.

The EACC Act, 2011 as amended in 2016 equally provides the functions of the Commissioners to include assisting the Commission in policy formulation and giving strategic direction to the Commission in the performance of its functions as stipulated in the Act. The Act further provides the functions of the Secretariat to include carrying out of the decisions of the Commission, day-to-day administration and management of the affairs of the Commission and supervision of other employees of the Commission.

The provisions of these Acts go against the Constitution that specifies the executive functions of Commissions.

In the Consolidated Petition No. 230 of 2015 Eng. Michael Sistu Mwaura Kamau and 12 Others vs. Ethics and Anti-Corruption Commission and 4 Others, the petitioners were aggrieved by the decision of the EACC to prosecute them, and the basis of the petition was that the EACC was not properly constituted, as there were no Commissioners at the Commission when it recommended their prosecution. The High Court, in its judgment of March 2016 put to rest the lack of clarity on the roles of the Commission, Commissioners and that of the Secretary to the Commission.

The three judge bench, ruled, “to contend that the Secretary, who is an appointee of the Commission, is part of the Commission would mean that the Commission would, where the Commissioners are nine, be composed of a membership of ten. One only needs to mention this to realize how ridiculous this argument is. We have no hesitation at all in holding that the Secretary to the Commission is not a member of the Commission as contemplated under Article 250(1) of the Constitution”.

The Court further stated, “we are therefore clear in our mind that the Secretary cannot be placed on the same plane as the Commissioners. To equate the Secretary with the Commission when he is an appointee of the Commission is in our view an anathema to the rules relating to employment and defeats common sense.  To do so would amount to creating two centres of power, a scenario which would be a recipe for chaos and disorder.”
Most importantly, the judges observed, “it is clear to us that under the Constitution and the legislation, the foundation of the powers of the Secretariat is the existence of the Commission. The Secretary and the Secretariat can only carry out the powers vested in their offices when the Commission is in place exercising its powers since they implement what the Commission has resolved upon.”

These pronouncements by the Court provide clear guidelines on how constitutional commissions should be governed and what roles the Commissioners and the Secretariat play respectively. It is clear that the Secretariat serves at the pleasure of the Commissioners and serve to implement the resolutions of the Commission, and not their own.

Comparative jurisdictions

In the United States of America, the chair of a multi-member independent agency or commission, equivalent of a constitutional commission in the Kenyan context, is ordinarily its most dominant figure. Although the respective powers of a chairman and the agency as an institution differ from agency to agency, most chairmen are essentially the agencies’ chief executive and administrative officers. They appoint and supervise the staff, distribute business among the agency’s personnel and administrative units, and control the preparation of the agency’s budget and the expenditure of funds. But that does not mean that the other agency members play no role in the agency’s management or administration.

The US Congress has centralised day-to-day direction and internal administration of the agency or commission in the chairman’s hands in order to prevent what is described as “splintered management”. However, Congress has not accorded agency chairs absolute administrative and executive authority. It plainly left to each member, the selection and supervision of staff in his or her own office.

The Constitution of the Republic of South Africa establishes six independent “state institutions supporting constitutional democracy”. These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure their independence, impartiality, dignity and effectiveness; and no person or organ of state may interfere with the functioning of these institutions

These constitutional commissions appoint the head of administration who is also the accounting officer of the Commission. The chief executive, as is designated, exercises all such powers and performs all such duties and functions as may be entrusted or assigned to him or her by the Commission or the establishing Act.

In Britain, non-departmental public body (NDPB) or quasi non-governmental organisation (quango), equivalent of independent commissions, operates to a greater or lesser extent at arm’s length from ministers and include various regulatory boards and commissions and grant-giving agencies. They are not subject to direct political control. They are, however, subject to certain financial, policy and performance arrangements that are formulated by the minister, the permanent secretary, and the agency head, and embodied in a framework document.

Generally, the NDPB board will appoint a CEO with day-to-day responsibility of managing the body. The CEO and staff are not usually civil servants. In most cases the CEO would be designated the Accounting Officer for the NDPB and the sponsor department’s permanent secretary, as Principal Accounting Officer, would usually be involved in the designation. This arrangement is replicate of Kenya’s state corporations where we have a board of directors responsible for the oversight of a state corporation and a chief executive officer, with the state department’s Principal Secretary playing a crucial role in the management framework of the state corporation.

The missing link in Kenya’s constitutional commissions is appreciation by secretaries to the commissions that they are “appointees” of the Commission and that the Commission is made up of the Commissioners. With that clarity, it then behoves a secretary to a commission to support, facilitate, co-ordinate and ensure execution of Commission’s mandate as directed by the Commissioners. This should be done taking note that the powers, duties and responsibilities given to him/her as an Accounting Officer are intended to facilitate the activities and operations of the Commission and not to countermand the same. There should, therefore, be no two centres of power.

In the alternative, and given that we adopted the so called presidential system of government like in the United States, there may be need to revisit the option of granting chairpersons of these independent commissions executive powers (which they already have) and render them responsible for the day to day administration of the commissions. This will be a sure end of the in-fighting between Secretaries and their Commissioners. ^

Writer is a Governance professional

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