Commissions and Independent Offices under the New Constitution
Open. Accountable. Responsible
Commissions and Independent Offices are at the very center of national values, democratic governance, and accountability - three of the key pillars of the New Constitution. Indeed, only the people of Kenya themselves can, under the exceptional circumstances of a constitutional referendum, choose to adjust the independence levels of Commissions and Independent offices. Excerpts from Chapter Sixteen - Amendment of this Constitution, Article 255:
255. (1) A proposed amendment to this Constitution shall be enacted ...... and approved ...... by a referendum, if the amendment relates to any of the following matters— (g) the independence of ...... commissions and independent offices .......
There are provided ten constitutional Commissions. Excerpts from Article 248 of Chapter Fifteen - Commissions and Independent Offices:
248. (2) The commissions are— (a) the Kenya National Human Rights and Equality Commission; (b) the National Land Commission; (c) the Independent Electoral and Boundaries Commission; (d) the Parliamentary Service Commission; (e) the Judicial Service Commission; (f) the Commission on Revenue Allocation; (g) the Public Service Commission; (h) the Salaries and Remuneration Commission; (i) the Teachers Service Commission; and (j) the National Police Service Commission.
The Independent Offices in the Republic of Kenya are that of the Auditor General and the Director of Budget. Excerpts from Article 248:
248. (3) The independent offices are— (a) the Auditor-General; and (b) the Controller of Budget.
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  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  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.
As previously mentioned, the Commissions and Independent Offices serve to entrench good governance and accountability. They also exist to protect the rights and liberties of the people and their sovereign power:
249. (1) The objects of the commissions and the independent offices are to— (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.
Writing on "Restructuring the Kenyan State", Joshua M Kivuva says of commissions and the independent offices that, "In a bid to restructure the government to facilitate better provision of services and better systems of accountability, the 2010 Constitution seems to have created a fourth arm of the government ....... that of constitutional office holders and commissions which collectively have far reaching functions and mandates" (Kivuva, 2011).
Given their unique (but constitutional) existence - distinct and separate from the three traditional arms of government, ie., Parliament, the Executive (Cabinet) and the Judiciary - the Commissions and Independent offices are in essence, a creative addition to governance and accountability borne of the people's determination and will to assure themselves that they will be listened to and be well governed in future. In fact, a citizen can take a complaint directly to a Commission or to an Independent Office fully assured that their concern will be addressed:
252. (1) Each commission, and each holder of an independent office— (a) may conduct investigations on its own initiative or on a complaint made by a member of the public; (b) has the powers necessary for conciliation, mediation and negotiation;
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.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.
2. Kivuva, JM (2011). "Restructuring the Kenyan State". Constitutional Working Paper Series No. 1. Society for International Development, SID.
3. Judicial Service Commission v Speaker of the National Assembly & another  eKLR. PETITION NO. 518 OF 2013. National Council for Law Reporting. The Attorney General.
4. Gazette notice to appoint a Tribunal to investigate six Commissioners of the JSC. The Kenya Gazette. Government of Kenya. Retrieved December 2013.
5. Judicial Service Commission v Speaker of the National Assembly & 8 others  eKLR. Petition 518 of 2013. National Council for Law Reporting. The Attorney General.