Individually, each is an organ of Government; collectively, they constitute an arm of Government
BY EDWIN MUSONYE
The concept of Independent commissions and Offices (ICOs) is embedded in the Constitution of Kenya, 2010. ICOs are not an addendum to the supreme law; they have an explicit mandate to protect the sovereignty of the people, secure the observance by all State organs of democratic values and principles, and promote constitutionalism. This means ICOs are actually powerful, relevant, and legitimate.
This new order, meant to pull and hold politics and administrative practices up to a higher standard, has brought drastic changes in the governance structure in the country. Whereas the governance side has somehow accepted it and is progressively making requisite improvements; the politics side has chosen to defend its old ways and, therefore, works toward pulling the constitution down to its olden normal.
This new order is a portent package. It came to change systems, processes, procedures, methods, concepts, and values – this against entrenched culture, traditions, and beliefs (especially in politics) that are primitive and repulsive. The desired change is comprehensive and extensive. The promulgation of the Constitution was not an end in itself but also a marked point to foster progress.
But how long should it take before the country gets past the teething problem phase? There seems to be deferred fruition. It is this delayed reawakening that makes room for some voices to trust that the forest may have changed, but the monkeys have remained the same. Some functions in the status quo have stuck tersely to the expired template and hope that it will endure longer. Regrettably, this is for their narrow benefit.
Misunderstood and sabotaged
Realigning mindsets to embrace ICOs, which are major players in the new order, is taking longer than envisioned. This is particularly true for those sitting at the apex of public resources. The politics that believes the constitution did not target upgrading it, has upheld a frantic fight to keep things ‘normal’. Either through ignorant arrogance or outright denial, primitive politics has attempted to misrepresent facts as to legitimize bad manners. The watering down of Chapter Six was merely the inauguration of the mischiefs to clutch onto an outdated template.
ICOs have remained professional and apolitical, which, unfortunately, is taken for weakness or meekness. They have chosen the path of civility and set a higher bar than most of the other arms. But for the unrefined, they expect tantrums and fierce confrontation. By avoiding that predictable route, ICOs are leading by example and deserve praise, not ridicule.
ICOs encounter disrespect in various ways. The most notorious are deliberate delays in making appointments to replace outgoing office-bearers. The state organ or arm of Government responsible may think that it’s demonstrating might or importance, but the constitution is all about responsibility. For any branch, arm, organ, agency, or department of Government to attempt to undermine another’s work is unacceptable and backward.
It is evident that ICOs have been and continue to be continually sabotaged since their inception. The most regrettable part is that it is the other leaders in government that perpetrate it. A good example is in the IEBC. How independent can this body be with the overwhelming interference in its affairs? To date, the other arms and organs of State have not facilitated it to work independently as envisioned in the supreme law.
Rise to the occasion
Scholars have weighed in on the independence and effectiveness of state organs in discharging their mandates. I shall consider three legal scholars — Dr. Willy Mutunga, Professor Yash Ghai, and Professor Ben Sihanya — to draw some guidance.
Dr. Mutunga openly vouches for judicial activism. This, in principle, extends to all ICO as he points out that the assurance of lasting democracy relies on existing intra-state-arms’ struggles. The executive and Parliament, according to him, are the main perpetrators of the supremacy conflict, because they believe that all state resources belong to them. He advises the judiciary to consciously play politics to build people’s confidence in it energetically.
Professor Ghai advises the judiciary to avoid retaliating and responding to assaults in the media through writing documentaries. Instead, they should only “speak through their decisions.” He is of the option of making strict rulings, without caving in to political pressures, and ensuring that the judgments are well explained.
Professor Sihanya, on his part, emphasizes popular sovereignty as source judicial authority and, therefore, defines the scope of its politics thus: “… the interpretation, construction, application, and enforcement of the constitution and the law must be pro-people.” This builds on his peers’ views and adds the aspect of fortifying internal integrity in the judiciary. accordingly, judicial officers must exhibit the high standards they demand from others. Their credibility and influence are derived from positive public perceptions, and so they should work while being virtuous and without discoloration.
ICOs mustn’t be apologetic
These scholars’ views do not apply to just the Judiciary; they apply to ICOs just as compellingly. And whereas the focus is on intra-stage oppression, Dr. Mutunga warns that [state organs] also face pressures from corporates, civil society interests that include religions, foreign interests, local and international cartels, ethnic interests, family, and friends.
But ICOs must not cave in. It was never going to be a walk in the park. The task of supporting change in society cannot be easy and requires sacrifice and stamina. ICOs are so important that a whole chapter (15) in the Constitution is dedicated to them. Individually, each is an organ of Government; collectively, they constitute an arm of Government.
Rise to the occasion
Kenya is rough terrain for business. This is true not only for the private sector but also for some branches, arms, organs, agencies, and departments in the public sector. The challenge here is that body corporates in the country have a dual role to play: the first is to discharge their core mandate, and the second is to play activism and agitate for the space to operate in.
Even as I posit that ICOs are misunderstood, there are also chances that ICOs don’t fully recognize or understand their crucial place. A good exemplar is the most recent State of the Judiciary address (SOJA) by Chief Justice Maraga, in which he expressed frustration in getting funding support from the National Treasury. The CJ suggested that his institution will be making its budget requests directly to Parliament, instead of submitting through the Treasury, as provided for by the constitution.
The question is, why has the Judiciary supported a flawed process all this time? How many other flawed processes and procedures exist and are still beings tolerated by ICOs in the spirit of ‘good nature’?
Using the excuse of tradition, expired practices such as ‘Question Time’ in Parliament have been retained. It is painful to watch grown-up parliamentarians unwittingly ask themselves questions and proceed to answer themselves, which is in refusing to appreciate the constitution-favoured presidential system. Perhaps if Parliament had been renamed, it would have been much easier for its members to shed the ‘that’s the way it has always been’ mentality.
As already pointed out, ICOs are not helpless; they can fight back. Neither would they need to reinvent the wheel to do so: the battlegrounds for fulfilling these responses are on the streets, in the media, public minds, boardroom, and in the courtrooms.
The streets are the apex of crusading. Through some are opposed to it, it still brings results. Through the media, ICOs can deliver structured or unstructured rebuttals through press conferences, briefings, or editorials. And, in courts of public opinion, people will form their own perceptions and attitudes towards the different organs based on open standards. While interpretation depends on individual tastes, allegiance, and contexts, objectivity is bound to be fair. As much as possible, all involved should exercise diplomacy, decency, and professionalism, for amicable intergovernmental relations are necessary to mutual working and cooperation.
Courts offer a credible path to entrenching systemic conflict resolution. The courts can deal with the problems in both advisory and determinant approaches.
The outcome in the Advisory Opinion sought and delivered as ‘Reference No. 3 Of 2019 Between Council Of Governors And the 47 County Governments And [The Honourable Attorney General, Speaker Of The National Assembly, Cabinet Secretary National Treasury, Commission on Revenue Allocation and Others’ speaks to the potency of the ascendancy of courts as arbiters.
The Supreme court pronounced itself on the following matters: (i) Whether the recommendation by the Commission on Revenue Allocation, is binding upon both Houses during deliberations concerning the Division of Revenue Bill and the Appropriation Bill; (ii) What happens when the National Assembly and the Senate fail to agree on a Division of Revenue Bill, thereby triggering an impasse? (iii) Whether there should be timelines within which the National Government should release the equitable share of revenue to County Governments and; (iv) Whether the National Assembly can enact an Appropriation Act before the enactment of a Division of Revenue Act.
This is not about who won or lost; rather, it must be seen as a win for the entire governance system. The Court gave helpful recommendations that will set the pace of how such disputes are to be handled henceforth. The relationship between government organs and arms need not be confrontational all the time. The lesson to ICOs is that they should not shy away from seeking Court interpretation or opinions in matters they feel aggrieved. Indeed, they should not even fear to sue; this is acceptable, as it enhances their work or helps in the delivery of their mandates. The process and results of a legal quest pursued in good faith is an essential component of strengthening democracy, justice, and eventual good governance sought.
This is the ideal forum for resolving intergovernmental disputes. Generally, citizens like to see harmony within Government and its leadership. Unnecessary wrangles and infighting causes tension and anxiety. Some notable events come to mind in this regard that could have been solved by well-intentioned boardroom arbitration.
CBK vs. Treasury
In late 2019, the National Treasury ordered the Central Bank of Kenya (CBK) to surrender some unused monies in its possession. CBK governor Patrick Njoroge declined. In some media platforms, this was captured as “defiance on the part of CBK” with the kicker that the regulator “is not in the business of bailing out a cash-strapped government.” It’s worth noting that CBK released the money later, on its own volition, to support the Government’s response to the Covid-19 pandemic. Importantly, the bank initially refused to be bullied by another government entity that often uses assumed powers to intimidate others.
JSC vs. The Executive
In recent times, CJ Maraga has repeatedly told off the Executive over the purported consolidation of government agencies and functions under the Office of the President through an Executive Order. The matter has since been taken to court by the Law Society of Kenya.
Governors vs. The Presidency
Before the now (in)famous Handshake between President Uhuru Kenyatta and the Rt. Honourable Raila Odinga, Mombasa Governor Ali Hassan Joho openly told off the president and the national executive for making the claim that they “give money to the counties yet there was nothing to show for it.” The county governor dared the president to keep their money to themselves, rightly stating that Mombasa residents deserve and only get fund allocations from the Exchequer as provided for by the constitution. The president retreated and that political debate was swiftly settled.
National Assembly vs. big political parties
The Speaker of the National Assembly made a ruling that stops political parties with large numbers in Parliament from denying smaller parties slots in House committees. This came after bullying and threats of de-whipping members smaller outfits and private members if they “failed to the toe the line” of big parties. It was a good ruling for democracy and decisional independence.
Judiciary vs. un-constitutionalism
Courtrooms are often fitting battlefields for breeding civility and best practices. Despite some disappointments, Kenyan courts have, at times, shown bravery in defending the law. This is clear in the number of statutes or laws that have been declared and struck off as unlawful. The disobedience of court orders by the Executive arm is a blight to this endeavour.
The lesson is that ICOs must remain vigilant because the attempts to disenfranchise them will not die on their own. These offices and institutions have earned the right to exist, and therefore deserve the respect of their peer offices. Indeed, there is no such thing as a “lesser arm or organ of Government.” By fighting for their space, they are not only securing their future but also supporting a free constitution and protecting the sovereignty of citizens. (
— Writer is a Technical Communications Practitioner