Towards strong independent institutions

Governors are up in arms that Ruto is paying lip service to his devolution promises, and particularly miffed by the County Governments Bill, 2023

By Shadrack Sharu Muyesu

The Controller of Budget recently confessed to having been coerced into authorizing payment of billions of shillings in the sunset days of Uhuru Kenyatta’s regime. This appeared to echo Deputy President Rigathi Gachagua’s sentiments on the massive plunder of public resources that defined that period. It comes amidst high inflation and an overwhelming debt burden that has forced many Kenyans to reduce their spending significantly.

Ironically, the Controller of Budget is supposed to act independently. Alongside the other offices mentioned in the Public Finance Management Act 2012, she is entrusted with guaranteeing sound fiscal policy and, by so doing, securing the Republic’s future. Unfortunately, they continue to underwhelm in their performance. Beyond her recent revelations, it is now emerging that not only was a massive chunk of what was borrowed in the last decade never deposited in the Consolidated Fund prior to appropriation per the Constitution, but most of what was received was also either lost or misappropriated leading us to the state of near-default we currently find ourselves in.

Meanwhile, in the corridors of justice, the Office of the Director of Public Prosecutions, the Ethics and Anti-Corruption Commission, and the Directorate of Criminal Investigations appear powerless in the face of political and state power. Instead of convictions, we have been treated to a spate of wrangles between these offices, dramatic arrests and arraignments followed by releases amidst confessions of politically motivated charges. How offices that are supposed to be independent fall victim to political overtures is a question that remains unanswered.

Commissions and Independent offices established under the Constitution of Kenya are tasked with exercising oversight over the other arms of government and ensuring that they deliver on their mandate regarding enforcing governmental accountability, human rights, and improving governmental decision-making. The drafters attempted to guarantee their independence by ensuring that, first of all, their composition, mandate, tenure, and budget were anchored in the Constitution; that their place was secure, protected from whimsical amendments by an unaccommodating Executive; thirdly, by forcing Parliament to recognize the character of these institutions in the form of carefully designed pieces of legislation that would operationalize them and finally, by securing the rights of the officeholders under the Bill of Rights and prescribing the only circumstances upon which they could be removed from office. This was a marked departure from the independence Constitution where independent institutions were not anchored under the constitution and were therefore susceptible to the Executive’s ever-changing attitudes.

Unfortunately, the hangover from the Independence Constitution has proven difficult to shake off. Despite the deliberate efforts of the drafters, many public officers still feel beholden to the State, encumbered by the prospect of a premature end to the career of any public servant who finds themselves at loggerheads with (the State). The net effect of this is independent institutions that continue to underperform.

The fate of independent institutions is akin to that of the Judiciary. Although viewed as one of three equal branches of government in the Liberal Democratic State, historical practice suggests an acceptable inferiority when regarded against its contemporaries. This inferiority is drawn from the fact that judicial officers are appointed and, therefore, cannot claim the same legitimacy as their peers in the other arms of government who are elected. By default, the Judiciary remains subservient to those who, exercising direct sovereign will, make law, including laws governing the Judiciary, decide their budget, and enforce its decisions. The Judiciary is, therefore, a vulnerable species, the words of Alexander Hamilton, “neither having influence over the sword nor the purse; no direction either of the strength or of the wealth of the society and unable to make any active resolution whatsoever can be ascribed to the Independent Institutions.” In the absence of force and will, holding only judgment; the Judiciary, like Independent Institutions, must ultimately rely on the Executive’s assistance for the efficacy of its decisions. As Hamilton argues elsewhere, the Judiciary is left with little choice but to consistently bend to the whims of the Executive to guarantee its survival.

What makes strong, independent institutions?

Prof. Charles Manga Fombad attempted to answer this question by formulating principles prerequisite for effective independent institutions. According to him, as cited by Walter Khobe, “There must be a constitutional recognition of the independence (of independent institutions) and that the independent institutions should be subject only to the constitution and law; other organs of the state should assist and protect these institutions; no person or organ of the state should interfere with the functioning of these institutions; and the institutions should be accountable to Parliament.” And according to Khobe, these institutions must also enjoy operational independence, after all, what determines the success of an independent institution as an instrument for accountable governance is its institutional design “and whether the designed independence is sustained in day-to-day political dealings.”

Whether these conditions exist in our political economy, the short answer would be that they do, yet only in theory. But this is not to say that our experience has been a monumental failure after all; the mere recognition of these conditions by our laws means that, at a minimum, their presence and importance are acknowledged and guaranteed. It’s like devolution or judicial independence. While there may be problems with how these objects function, because of our constitution and the vigilance of Kenyans, the Executive cannot attempt an open assault against them despite its apparent misgivings. Formal acknowledgment alone has been an enormous step forward, and as far as the less sensitive cases go, these independent institutions have done quite well.  

As to how this success can be extended to high-profile cases, we have to go back to Khobe on functional and operational independence. Functional independence is guaranteed by the Constitution inter alia, under Articles 252 and 253 whereupon our courts have stated that other state organs cannot usurp and purport to discharge the functions vested in a given independent institution. The most notorious example is the conflict between Members of Parliament and the Salaries and Remuneration Commission. In Okiya Omtata and Others v Attorney General and Others, Petition Numbers 227, 281, and 282 2013 (consolidated), where the nullification of the Gazette was challenged, the High Court affirmed the functional independence of the SRC when it held that a constitutional amendment that goes to the root of divesting the SRC its constitutional mandate must be approved in a referendum. The High Court then found that the National Assembly had exceeded its mandate by purporting to annul the Gazette Notices issued by the SRC.

On the other hand, operational independence means that these independent bodies’ day–to–day running should be left in their hands. In a theoretical sense, administrative control is safeguarded by first, ensuring that the composition of the independent bodies, the procedure of the appointing commissioners as well as the procedures of the commissions are not politicised and, secondly, by ensuring that other branches of government do not interfere with the running of these independent bodies in a manner that removes final control over their administration from them or that interferes with their effective functioning. In practical terms, however, independent institutions remain heavily reliant on the goodwill of the Executive for their existence. The Legislature and the Executive play the critical role of appointing and removing commissioners, but even more tellingly, these organs determine their budget and, by extension, how they function.  

Although by dint of Article 249 (3) of the Constitution, Parliament has an obligation to ensure that independent institutions are adequately funded, Parliament has, in the past, not hesitated to punish unfriendly independent institutions through budget cuts: after all, what is adequate? As long as the budget is appropriated at the discretion of Parliament, these institutions will continue to beg for funds or risk their operations being compromised or sacrificed at the altar of “setting aside money for more pressing needs”. It is perhaps time the law was amended to provide a certain minimum threshold of the budget as annual allocation to these institutions.

Khobe also suggests that to ensure the effectiveness of independent institutions, their findings, decisions, recommendations, and conclusions should be treated as binding and must be complied with. It undermines the essence of independent commissions when their recommendations are merely suggestions or opinions. Where necessary, these offices should also be furnished with arrest and prosecutorial powers so that they do not have to rely on the state or collaborations with other organs. In our Kenyan experience, this has only served to convolute what should be a fairly straightforward process. Other jurisdictions have on to legitimize independent institutions by ensuring that those who head them obtain the citizens’ mandate at the ballot. Still, perhaps this would be too far for a highly stratified country such as ours and where politics remains extremely basic.

Ultimately, success requires a change in attitude, not just from the Legislature and the Executive but also from Wanjiku. The place of Independent Institutions has been maintained thus far thanks to the combined effort of a handful of vigilant citizens and our progressive courts- more so the Constitutional and Human Rights Division of the High Court. Interference from the powers would be a thing of the past if only the rest of us would be as proactive. It is a characteristic that will grow in us with time; after all, we remain you in democratic terms, only beginning to appreciate our new constitution: with time, constitutionalism shall become a part of us.  (

— The writer is an advocate of the High Court of Kenya and the Managing Partner at SM& M Advocates LLP.