Independence of Commissions must be protected jealously

President Uhuru Kenyatta recently issued an executive order that placed constitutional commissions and independent offices under the office of the Attorney General and cabinet secretaries.

Last week, the High Court determined that Parliament could not purport to vet Court of Appeal Justice Mohammed Warsame’s election by Judges to sit in the Judicial Service Commission as a Commissioner representing them. The court was categorical that Parliament and the President had no role in the process.

Many have interpreted these actions as unconstitutional attempt by the executive and legislative arms of the government to diminish the independence of constitutional commissions and independent offices such as the Judicial Service Commission, Kenya National Commission on Human Rights and the Office of the Auditor General.

For instance, the order put the JSC under the office of the Attorney General, yet the AG actually sits as a member of the same constitutional commission.

EXECUTIVE ORDER

As a result, the Law Society of Kenya has moved to court challenging the executive order on the grounds that the executive was trying to illegally meddle with the independence of these institutions.

Lady Justice Okwany has since suspended the executive order pending hearing and determination of the petition.

Admittedly, the executive can argue that the executive order is merely an internal administrative move to allow the president to be briefed by his cabinet on the way respective independent offices and constitutional commissions are functioning.

This argument would only fly if the order does not impose any duties, responsibilities or obligations by the independent offices and constitutional commissions to report to the respective cabinet secretaries and the AG.

This is because constitutional commissions and independent offices derive all their powers from the Constitution and their enabling act only, and to some extent their rules and obligations.

For instance, the Kenya National Commission on Human Rights derives all its powers from the KNCHR Act, its rules and regulations, and Article 49 of the Constitution.

VIOLENCE

The creation of constitutional commissions and independent offices was premised by the need to separate the executive from certain critical ‘hot button’ issues that have historically been abused by the executive branch of government and sometimes led to injustices and violence.

These issues include land adjudication, managing of elections and determining constituency boundaries, the fight against corruption, protection of human rights, fair administration of justice and equality, salaries of public officers, national audit and policing.

As a result, the authors of the Constitution created the National Land Commission, IEBC, KNCHR, CAJ, NGEC, SRC, Auditor General, DPP and National Police Service Commission to oversee these functions.

They were to be headed and staffed by independent professionals who are beyond reproach in terms of political or tribal interests and manipulation.

It is for this very reason that the drafters of the Constitution ensured these offices were protected.

INDEPENDENCE

In fact, Article 255 1 (g) provides that any amendment to the Constitution touching on the independence of the Judiciary, commissions and independent offices must be subjected to a referendum. They did not envisage a situation where Parliament or the Executive purports to direct or oversee these offices.

In fact, all constitutional commissions and independent offices are mandated under Article 249 of the Constitution to protect the sovereignty of the people, to secure the observance by all state organs of democratic values and principles, and to promote constitutionalism.

Since 2010, the courts have been an effective and competent forum to seek judicial redress for executive and Parliamentary excesses.

In the past, civil society organisations, the LSK, constitutional commissions and citizens such as Okiya Omtatah have successfully moved to court to assert the peoples sovereignty and separation of powers.

NATIONAL ASSEMBLY

In 2016, the LSK challenged an amendment to the JSC Act that would have allowed the President to pick the Chief Justice from a list of 3 forwarded by the Judicial Service Commission.

The 5 Judge bench found that opening a window for the President to decide whose name should be forwarded to the National Assembly would mean that ‘the solution lies somewhere else’.

The court held that in doing so, the JSC would no longer have the discretion in the appointment of the two senior officials of the third Arm of Government thereby offending the principle of separation of powers.

In 2015, the High Court boldly declared the Presidential Benefits (Amendment) Act of 2013 unconstitutional in a case filed by the KNCHR, on account that the National Assembly did not consult the Salaries and Remuneration Commission in setting the retirement package for Kenya’s former Presidents.

Commissions and independent offices cannot truly meet their mandates if they are under perceived direction of the executive. It defeats the purpose!

Demas Kiprono is Senior Legal Officer – ARTICLE 19 Eastern Africa; [email protected]; @kipdemas