Disutility of independent commissions and offices apparent

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The 6th Annual Forum for Independent Commissions and Offices took place last week in Nyeri. Coming on the heels of the end of term of the Sarah Serem-led Salaries and Remuneration Commission and the prolonged and contentious electoral period, the forum reviewed the status of devolution five years since implementation commenced.

In a sense, the meeting morphed into another devolution conference with little to say on the state of play regarding the operations of commissions.

Yet there are real and fundamental questions that should have informed the conversations at this forum.

It would have been more apposite for instance, to reflect on the value add of the Chapter15 commissions and independent offices that have been in existence for half a decade.

Is the status of women rights today better because of the existence of the National Gender and Equality Commission? Given the public investment of over Sh1 billion across these 14 commissions and independent offices over the last five years, is the public realizing broader and expanded regime of freedoms, emanating from increased awareness of their rights borne of civic education conducted by these entities?

To what extent can it be said that government is delivering better services at national and sub-national levels because of the important efforts by the Commission on Administrative Justice? What about the impact of the role of the Land Commission in its’ pursuit of greater sectoral coherence and redressing land injustices? Is the sector more optimized? If these and many other questions were probed, Kenyans would have a more appreciative view of the contribution of these commissions. The conference missed this opportunity.

At a period when the collective existence of the State is under threat by forces that reference some nebulous notions of sovereignty, one would have supposed that these Chapter 15 bodies, the collective leitmotif of which, is the protection of the sovereignty of the people, to have reflected on the subject.

If focused on their calling, nothing short of a definitive opinion on their understanding of the constitutional meaning of sovereignty and how its direct expression is enjoyed by the citizenry would have been rendered. As the good practice developed by the defunct Nyachae-led Constitutional Implementation Commission, such an opinion would have been widely published and disseminated to inform discourse and decision making. Their silence in the face of the assault of state sovereignty, casts doubt on their fidelity to the very constitutional order that created them.

What remains clear though is that six years after most of the Chapter 15 entities came into being, they still suffer a serious conceptual and identity crisis.

Conceptually, given the traditional separation of power framework by which government is delineated into three branches, where do commissions fall? Are they a fourth Arm of the State that exists to check, prefect or monitor the other three arms? If so, how come all the reports from these agencies revolve only around the conduct of the executive and marginally, Parliament?

Conversely, are they an integral cog of government that exist to provide additional capacity to ensure better performance by government in compliance with the constitution? If this were so, one would have expected the Kenya National Commission on Human Rights, not to stand as an indifferent third party in its criticism of police conduct, but formulate strategies on how a human rights compliant policing looks like. Surprisingly, at this period in time, little difference is perceptible in the posture and operations of this commission funded by the exchequer, and the Kenya Human Rights Commission, the well-known NGO, whose 25 years in existence is noteworthy.

In terms of identity, it is obvious that, being intermediary or sui generis entities embedded within neither branch of government, these institutions must curve out a path that is independent of all influences, within and outside government.

In a word, they must be depoliticized in both their program focus and posture, especially given that one of the Chapter 15 commissions conducts the election to office of the entire political class at national and county level. Inter se, these entities must support each other, as institutions that exist to secure state compliance within the constitution. If one of their membership is found wanting, the rest of the independent bodies lose standing and credibility.

Located between citizens and government, these institutions, could provide a framework in which the needs of citizens are articulated outside the loaded environment of party politics. If Chapter 15 commissions and independent offices were truly independent, they could provide a reliable voice for the people, unburdened by political exigencies of the day or vested interests. In the end, Chapter 15 commissions must understand their role as consisting of both checking and transforming the practice of government.  If they don’t, their collective existence is unjustifiable.

(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President)

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