The August 2010 promulgation of the Constitution was a watershed moment with the promise of a new beginning for a country that had gone through more than four decades of Executive dictatorship.
For the 47 years before the new Constitution took effect, the problems identified at the dawn of Independence – poverty, disease and ignorance – had been put aside as the Executive kept a tight grip on the rights and freedoms of the people.
And so, the framers of the Constitution came up with Chapter 15 independent offices and constitutional commissions to enable the citizens enjoy the rights and freedom that the Executive had been curtailing for decades.
“We felt that some specific functions required some institutions outside the Executive,” said Mr Nzamba Kitonga, chairman of the defunct Committee of Experts which came up with the current Constitution.
CHAPTER 15 COMMISSIONS
He was explaining the reasoning behind the establishment of the independent institutions.
The Chapter 15 commissions thus established by the Constitution were the National Land Commission, Independent Electoral and Boundaries Commission (IEBC), Parliamentary Service Commission, Judicial Service Commission, Commission on Revenue Allocation and Public Service Commission (PSC).
Others were Salaries and Remuneration Commission, National Police Service Commission, the Kenya National Human Rights and Equality Commission — now restructured into three independent commissions namely the Kenya National Commission on Human Rights, the National Gender and Equality Commission and the Commission on Administrative Justice.
The independent offices established were the Office of Auditor-General and the Controller of Budget.
However, in just seven years since the promulgation of the Constitution, the space for the independent commissions has steadily been shrinking as the Executive, through legislation, has succeeded in clawing back some of the powers that they lost.
For instance, through the 2015 Public Audit Act, the Executive has been able to take back the powers of the Auditor-General to hire and fire his staff.
The function is now resident with the PSC which some have said has been operating like an appendage of the Executive.
“It has not been a walk in the park. Despite the measures we took to insulate the independent bodies, I sense that some commissions have been prone to political and commercial influence and through that some measure of their independence has been eroded within a very short period of time,” said Mr Kitonga.
But Attorney-General Githu Muigai refuted claims of threat to the autonomy of the independent institutions by the Executive.
“The independence of independent institutions is underpinned in the Constitution and to say there has been encroachment on their space is to say that there has been amendments to the Constitution,” said Prof Muigai.
“To the best of my knowledge, they remain intact. It is, therefore, a fallacy to suggest that the Executive has been compromising their autonomy. It is unfortunate we are developing an intellectual culture where commentators, in lieu of serious analysis, throw around platitudes like ‘the democratic space is shrinking’ or ‘we are becoming a failed State’,” he added.
Constitutional lawyer Kamotho Waiganjo said it had been a mix returns for the institutions but denied that laws had been enacted to limit their powers.
“We need to look back at where we are coming from when we are talking about the performance of these institutions. Change was not going to happen at once,” Mr Waiganjo, who also served in the defunct Commission for the Implementation of the Constitution, said.
The Jubilee regime has also enacted the laws regarding the security of tenure of the Inspector-General of Police by making the holder of the office subservient to the President who is currently the appointing authority.
Similarly, through the changes to the election laws, the Jubilee legislators have reduced the powers of the chairman of IEBC.
“The ruling Jubilee Party has subsequently passed new legislation that will gut many current electoral safeguards and also severely limit the powers of the Supreme Court to annul an election outcome. It will also diminish the authority the chairman of the electoral commission currently has, by making it possible for any member of the commission to announce the result of a presidential election,” Nasa leader Raila Odinga said in his remarks at Chatham House, UK, on Friday.
And in 2015, MPs amended the Ethics and Anti-Corruption Act which besides doing away with a recruiting panel for the commissioners composed of representatives of diverse groups also reduced the powers of the chairman of commission.
As well as enacting laws to reduce the powers of the commissions, direct intimidation and incapacitation through budgetary cuts has been reported.
For instance, following the nullification of the August 8 presidential election, an irritated President Uhuru Kenyatta said the government would “fix” the Judiciary for their action. “We shall revisit this thing. We clearly have a problem. Who even elected you? Were you? We have a problem and we must fix it,” the President said.
Critics have seen this as intimidation to the Judiciary as three significant events have taken place since the election was nullified. First, there was profiling of the four judges who nullified the election – Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu, Justice Smokin Wanjala and Justice Isaac Lenaola. The Supreme Court registrar Esther Nyaiyaki, whose scrutiny reports were part of the body of evidence the judges relied on to nullify the election, is also under siege with a petition filed against her.
Then in the recent supplementary budget, Sh1.95 billion meant for the dispensation of justice was slashed from the Judiciary’s budget while the Judicial Service Commission (JSC) had its budget slashed by Sh306.7 million from Sh490.2 million.
Similarly, Sh550 million was slashed from the Auditor-General’s budget for audit services.
“Budget is one of the tools Parliament uses to tame institutions that MPs perceive not to be towing the line which is quite unfortunate,” said Mr Waiganjo.
The law requires Parliament to “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”.
“With austerity measures, the need for accountability is even greater and audit services are usually ring-fenced and protected. Therefore, the unilateral slashing of the Auditor-General’s budget for audit services should be seen as a deliberate effort to incapacitate the office,” a source in the Office of the Auditor-General told theNation.
According to Mr Kitonga, Auditor-General Edward Ouko has been able to make very bold recommendations and “because of his work, there has been a lot of intimidation”.
There have also been attempts to remove Mr Ouko from office. For instance, a petition filed by one Emmanuel Mwagonah had sought to have Mr Ouko removed from office on grounds that he had wasted public funds by accumulating a Sh1 million phone bill on his iPad while he was abroad.
High Court judge George Odunga in September ruled that the proceedings of the Departmental Committee on Finance and Trade on the basis of Mr Mwagonah’s petition failed the test of fair administrative action.
Meanwhile, Parliament is in the process of hiring a second external auditor to look into the Auditor-General’s expenditure records even though Baker Tilly Merali is only one year into their three-year contract for the same job.
“They say Baker Tilly Merali has been lenient on the person of Auditor-General. The motive is being driven by the urge to remove Mr Ouko from office. By retendering, they hope to get somebody to use for their ulterior motives,” the source at the Office of the Auditor-General said.
Even though the shrinking space for independent bodies are seen to be instigated by the Executive, Mr Kitonga said the same commissions also play a role, perhaps to please those in power.
For instance, Mr Kitonga noted that while JSC has to a large extent been successful, “they are over-cautious and slow in processing complaints submitted to them”.