By Carolene Kituku
Chapter 15 of the Constitution establishes constitutional commissions and independent offices. Their mandate is to protect the sovereignty of the people and secure the observance of democratic values and principles by all state organs. They also promote constitutionalism.
Importantly, these commissions are only subject to the Constitution and the law, not to the direction or control by any person or authority. They ought to be independent while executing their mandate. It then follows that these commissions have been designated as the foundation of our democracy and constitutional supremacy. They act as the people’s watchdog.
In terms of their constitutional mandate and the enabling law, they have in the past issued certain recommendations to various state organs and agencies. In such instance, the issue has been the legal effect of such recommendations. Cases have been filed at the High Court to determine the powers of the commissions to make recommendations and the nature of such recommendations.
One such case was against the Commission on Revenue Allocation; Petition No. 368 of 2014, The Speaker of Nakuru County Assembly and 46 others v The Commission on Revenue Allocation, filed at the Constitutional Division of the High Court in Nairobi. The case sought to challenge the constitutional powers of the Commission on Revenue Allocation (CRA) to make recommendations on the budget ceilings for the county governments.
CRA, pursuant to its mandate, had on 22 April 2014 issued a circular Reference No. CRA/CGM/Vol. III/99 addressed to all county governments recommending a ceiling on allocation for all county assemblies and all county executives in county budgets for the financial year 2014/2015. In line with this circular, the Controller of Budget reinforced the circular and demanded that the county governments’ comply with the circular, failure to withdrawals from the County Revenue Fund or any other fund by county government would not be approved.
The county governments filed the constitutional petition claiming that the circular by CAR had been issued in violation of the constitution and the law, and violated the counties legislative authority. The county governments argued that CRA does not have the mandate to determine the budgets of a county government, and that it could only make recommendations on the basis of equitable sharing of finances between the national and county government. One issue for determination in this case was whether CRA had the constitutional mandate to recommend budgetary ceilings and, in the event the answer was in the affirmative, the effect of such recommendations.
Justice Isaac Lenaola considered the constitutional mandate of CRA as set out in Article 216 (1) and (2) and concluded that CRA had the mandate to make recommendations to the National Assembly, the national Executive and the county governments on the basis upon which revenue would be shared equitably between the two levels of government.
He also held that the commission had the powers to recommend how revenue would be allocated for county governments and be shared equitably between the counties. According to the judge therefore, the issue in dispute was on the nature of such recommendations and specifically whether they were binding in nature.
In determining the nature of the recommendations, the judge considered the ordinary English meaning of the word ‘recommendations’ and found that they do not ordinarily have a binding effect. He contrasted recommendations with a directive, which would be interpreted to be binding on those to whom addressed.
The court considered the powers of CRA to make recommendations on the matters stipulate in Articles 217 and 218 of the Constitution and found that CRA had the power to make recommendations to the National Assembly and county governments. He further found that by their very nature, such recommendations would be persuasive and not binding, but noted that there must be reasons for deviating from such recommendations. By this ruling, the Justice Lenaola clarified the nature of the recommendations made by CRA and, by extension, other constitutional commissions. This finding differs substantially with the position in other jurisdictions.
The Constitutional Court of South Africa, when called upon to determine legal effect of the powers of the Public Protector to take appropriate remedial action as stipulated under Article 182(1) (c) of the Constitution of the South Africa found that the remedial action was of binding nature.
The Constitutional Court in this case, Economic Freedoms Fighters v The Speaker of the National Assembly (2006) ZACC 11, had been called upon to examine the extent of the constitutional powers of Public Protector to make remedial action, and whether such recommendations in form of remedial action were binding on the president.
In this case, the Public Protector had investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at the Nkandla private residence of the President of South Africa. She concluded that the President failed to act in line with certain constitutional and ethical obligations by knowingly deriving under benefit from the irregular deployment of state resources.
Exercising her constitutional powers to take remedial action, the Public Protector directed that the President, with the help of certain state functionaries, should work out and pay a portion fairly proportionate to the undue benefit accrued to him and his family.
The report was submitted to the President and the National Assembly presumably so it would facilitate compliance with the remedial action in line with its constitutional obligation. For a period of over one year, neither the President nor the National Assembly took action.
The applicant applied to the constitutional court claiming that the president and the National Assembly had violated the constitution by failing to fulfill their constitutional obligations – to uphold and defend the constitution.
The Constitutional Court found that the power of the Public Protector to take remedial action was primarily sourced from the Constitution and that the office existed to strengthen constitutional democracy. In the Court’s view, the remedial action proposed by the Public Protector could not be ignored.
The Court opined that sometimes the legal effect the remedial action has on a particular case would depend on the nature of the issues under investigations and the findings made, so that to whom the remedial action is directed are to consider the proposed action and determine the course to follow.
Having analysed the legal effect of the recommendations made by public Protector and determined that the remedial action taken against the President was binding, the Court concluded that the President and the National Assembly had failed to uphold, defend and respect the Constitution.
In my view, the Constitutional Court of South Africa’s interpretation resonates with the purpose for which the constitutional commissions and independent offices were established. To ensure the commissions are fearless in discharging their constitutional obligations, the Constitution provides that the commissions and independent offices are only subject to the constitution and the law. They are expected to be independent by ensuring they are not subject to direction or control by any person.
By the very nature of the constitutional design and architecture, constitutional commissions and independent offices are critical and indispensable in the facilitation of good governance in Kenya and for the promotion of constitutionalism. Their decisions and recommendations are crucial.
Most importantly, these commissions are created by the Constitution and they should be understood within that prism. They exist to discharge unique constitutional mandates and when they do issue recommendations, they certainly cannot be ignored because the same are issued in terms of their constitutional mandate.
Further, the taxpayer has heavily invested in these bodies, and it would be catastrophic to then imagine that they only exist to make suggestions that are inconsequential and without any legal effect. Their recommendations must be taken seriously if only to ensure the observance by all state organs of democratic values and principles. In my view, their recommendations cannot be disregarded without any legal consequences.
This is not to say the decisions of the commissions cannot be challenged if in exercise of their mandate they act ultra vires. Any person aggrieved with the recommendations made has the right to legal recourse in form of judicial review.
The availability of judicial scrutiny provides the required checks and balances and gives the commissions some legitimacy.
To therefore contend that a body can refuse to give effect to the recommendations made by the independent commissions and offices and give reasons for such refusal is tantamount to usurping the role of the court to exercise judicial scrutiny over the manner in which the commissions discharge their obligations.
It must be remembered that all persons have an obligation to fulfill, respect and uphold the constitution including the commissions and that the High Court has the sole mandate to interpret whether any act done under the authority of the constitution is inconsistent with the same constitution. (