Authority

 

253. Each commission and each independent office— (a) is a body corporate with perpetual succession and a seal; ....... 

Both the authority and independence of Commissions and Independent offices and their officers is set on very firm ground:

249. (2) The commissions and the holders of independent offices— (a) are subject only to this Constitution and the law; and (b) are independent and not subject to direction or control by any person or authority.

Independence can sometime be a very fine line. In October 2013, the Judicial Service Commission JSC refused to honour the summons of a departmental committee of the National Assembly citing interference in its internal affairs. This followed the Commission's suspension of the Chief Registrar of the Judiciary. The disagreement ended up in the High Court which ruled in November, that when a committee of either House is exercising its constitutionally-mandated quasi-judicial powers, such a committee "....... is subject to the supervisory jurisdiction of the Courts." (Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR).

The Committee (rather petulantly) defied the ruling of the Court and went ahead to consider a petition by a member of the public to remove six Commissioners serving in the JSC. The JSC was not to be outdone and went ahead to ask the High Court to settle the matter of its independence and authority. The Court obliged and affirmed the independence of constitutional Commissions essentially saying that "Parliament’s Standing Orders cannot override the Constitutional insulation provided for Constitutional Commissions in the exercise of their mandate" (Judicial Service Commission v Speaker of the National Assembly & 8 others [2014] eKLR).

The Constitution also (rightly) grants considerable immunity to Commissioners:

250. (9) A member of a commission, or the holder of an independent office, is not liable for anything done in good faith in the performance of a function of office.

Furthermore, a common requirement for eligibility to hold a position as a member of a Constitutional Commission or Independent Office is that one has not been involved in running for political office. This requirement, is to ensure that Commissioners are independent of any partisan interests.

In the old constitutional dispensation, the executive (through Parliament) would often frustrate the work of the Commissions and Independent Offices by denying them the resources they needed to carry out their mandates, or through coercion, intimidation and overhand tactics directed at individual commissioners. This will no longer be possible:

(3) Parliament shall allocate adequate funds to enable each commission and independent office to perform its functions and the budget of each commission and independent office shall be a separate vote.

250. (7) The remuneration and benefits payable to or in respect of a commissioner or the holder of an independent office shall be a charge on the Consolidated Fund.

The Commissions and Independent Offices have been given the liberty to sue should they require the intervention of the Court in a matter affecting their mandate of protecting the liberties and sovereignty of the people. It is necessary to add here that these offices are not a law unto themselves with respect to other arms of government or to the citizen and so can likewise be sued:

253. Each commission and each independent office— (b) is capable of suing and being sued in its corporate name.

Some of the Commissions are special in the sense that they have been given the powers of a Court to summon witnesses in order that their investigations are not hindered in any way:

252. (3) The following commissions and independent offices have the power to issue a summons to a witness to assist for the purposes of its investigations — (a) the Kenya National Human Rights and Equality Commission; (b) the Judicial Service Commission; (c) the National Land Commission; and (d) the Auditor-General.

To allow for checks and balances, every Commission and Independent Office is required to submit a report each year, as well as a special report on demand, to the President and to both the Houses of Parliament:

254. (1) As soon as practicable after the end of each financial year, each commission, and each holder of an independent office, shall submit a report to the President and to Parliament.
(2) At any time, the President, the National Assembly or the Senate may require a commission or holder of an independent office to submit a report on a particular issue.

The citizens have not been left out in the dark, for they are the supreme authority of the land and will be privy to such reports:

254. (3) Every report required from a commisssion or holder of an independent office under this Article shall be published and publicised.

 

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