Four commissions submitted their end-term performance reports to the President this week. The moment offers both citizens and state officers an opportunity to reflect on how well they have discharged their respective accountability, advisory and advocacy mandates.
Established in the sixth schedule of the Constitution or by an act of parliament, Kenya’s constitutional commissions have their roots in one of the most painful points in our history. As the controversial 2007 General Elections descended into post-election violence that rapidly claimed over 1,000 lives and displaced 100,000s, most recognized the systemic failure of an entire governance system.
An executive accused of rigging an election, a judiciary no politician trusted and a police force that had no qualms violating human rights to quell widespread disaffection and violent mass action. With the National Assembly yet to be reconstituted, all the brakes failed. The 2008 peace accords demanded a new constitutional order that ended the imperial presidency, expanded the bill of rights, promoted the rights of marginalized and vulnerable groups and sought transformative policing among other reforms.
With virtually no public institution able to hold the country together, the “don’t be vague, go to the Hague” chorus of politicians shifted the failed state problem to the International Criminal Court to establish the truth of the mass rights violations experienced and who should be held accountable.
The 2010 constitution introduced civilian independent and domestic oversight over key functions like sustainable civil servant salaries, terms and conditions, human rights-based policing, the progressive realization of gender equality and an end to identity-based discrimination among other constitutional values.
Among the commissions whose terms have come to an end after six years of service are the Salaries and Remuneration Commission (SRC), the Commission of Administration of Justice (CAJ), the Gender and Equality Commission (NGEC) and the Independent Police Oversight Authority (IPOA).
The IPOA lists its achievements in the 12,732 complaints resolved, 30 convictions, monitoring of 514 policing actions among others. The CAJ cites its support to citizens to access information, expanded institutional resources and decentralization to 16 services. NGEC notes that it had addressed 624 complaints, published 27 reports and 308 memoranda among other achievements. The three oversight bodies departing IPOA, NGEC and CAJ Commissioners cite common challenges. They include consistent underfunding and non-cooperation by the police and other state agencies as well as court delays and little public awareness and confidence in their institutions.
Ultimately, the commissions must be judged on their impact on governance and human rights. Over the last six years, has the police become more publicly accountable for its actions? Have the attacks and exclusion of women and other marginalized groups decreased? Is the salary wage bill more sustainable given our revenue streams and the prevailing economic climate? Does the public, and particularly our vocal Gen Z, believe that Kenya has a fair administrative system in place that encourages whistle-blowing and the right to information? This would take another opinion piece to comprehensively address but readers, I am sure, had their own opinions as the nation marked the fourteenth anniversary of the constitution this week.
Even where they have fallen short of keeping the Executive operating within the rule of law, the constitutional commissions remain critical to Kenya’s governance architecture. In a world where power is increasingly being centralized and weaponized against dissent, the Article 15 agencies are an important check on the imperial presidential dynastic model that Kenya Kwanza had committed to dismantle.
De-funding, interfering with their operations or refusing to cooperate with the bodies, have been tried and tested strategies for sabotaging them. The term of the IPOA Directors comes to an end for instance, without funding for the enquiry and plan to end the history of extra-judicial killings the President promised the nation in October 2022. The lawlessness, violence and horror captured by human rights organisations and the National Assembly remain ignored.
As the Commissioners step down and with the President as the appointing authority, all eyes must turn to the recruitment process. President Ruto has promised a transparent recruitment while announcing his choice for the selection committees. Most, I suspect, remain skeptical. If we set aside those being pursued for economic crimes, the national administration’s record of senior appointments seems to hinge on familial and party-political affiliation or loyalty to the Executive. It will be a pleasant surprise if the next round of appointments includes persons with independent mindsets, a courageous stand for the public interest and a professional track record in the areas appointed. Let’s see.
This opinion was also published in the Saturday Standard, 31 August 2024. The October 2021 Senate Report into Extrajudicial Killings and Enforced Disappearances remains ignored by the Executive.
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