Composition and Tenure

 

The Constitution of Kenya 2010, provides for a fixed range of the number of Commissioners in each Commission perhaps to ensure that they maintain leanness:

250. (1) Each commission shall consist of at least three, but not more than nine, members.

The Secretary of each Commission will also be its chief executive:

(12) There shall be a Secretary to each commission who shall be— (a) appointed by the commission; and (b) the chief executive officer of the commission.

In the new spirit of the New Constitution, the office holders of Commissions and Independent Offices will be appointed upon vetting by the National Assembly, and must reflect the diversity of the people of Kenya in gender, race, language, religion etc.

250. (4) Appointments to commissions and independent offices shall take into account the national values ....... and the principle that the composition of the commissions and offices, taken as a whole, shall reflect the regional and ethnic diversity of the people of Kenya.
(11) The chairperson and vice-chairperson of a commission shall not be of the same gender.

Full-time Commissioners and holders of independent offices shall only serve for a limited period of one term of six years, perhaps to allow for the injection of new ideas and fresh impetus:

(6) A member of a commission, or the holder of an independent office—(a) unless ex officio, shall be appointed for a single term of six years and is not eligible for re-appointment;

A Commissioners or holder of an Independent Office cannot be removed from office arbitrarily but only by the recommendations of a properly constituted tribunal set up after Parliament and the President are satisfied that there is a case for the removal of the office holder. This procedure is a common theme throughout the New Constitution to be applied in the removal of holders of constitutional offices:

251. (1) A member of a commission ......, or the holder of an independent office, may be removed from office only for— (a) serious violation of this Constitution or any other law, including a contravention of Chapter Six; (b) gross misconduct, whether in the performance of the member’s or office holder’s functions or otherwise; (c) physical or mental incapacity to perform the functions of office; (d) incompetence; or (e) bankruptcy.
(2) A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground.

Indeed, on the 16th of October 2013, the National Assembly received to its Departmental Committee on Justice and Legal Affairs such a petition from a member of the public for the removal of six Commissioners serving in the Finance and Administration Committees of the Judicial Service Commission

(3) The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President.

The National Assembly approved the petition on the 7th of November, and its Speaker sent it to the President to establish a Tribunal to investigate the six Commissioners.

(4) On receiving a petition under clause (3), the President— (a) may suspend the member or office holder pending the outcome of the complaint; and (b) shall appoint a tribunal in accordance with clause (5).

On the 29th November 2013, the President did indeed form and gazette such a Tribunal and suspended the six Commissioners.

(5) The tribunal shall consist of— (a) a person who holds or has held office as a judge of a superior court, who shall be the chairperson; (b) at least two persons who are qualified to be appointed as High Court judges; and (c) one other member who is qualified to assess the facts in respect of the particular ground for removal.
(6) The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act in accordance with the recommendation within thirty days.

 

 

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