The Fourth Arm of Government? Commissions and

Independent Offices in Kenya

By

Justus Omollo†

11th August, 2014

1

“…Kenyans wanted a ‘fourth arm of Government’...this is essentially what the

commissions have become”. - Waikwa Wanyoike1

1.0. Introduction

In the classical typology of the arms of government, there are three arms

commonly acknowledged. The three arms of government are the judiciary, the

legislature and the executive. Kenya’s constitutional architecture entrenches

various functions to these three arms of government. However, it has been

argued that a fourth arm of the government was birthed in Kenya’s 2010

constitutional dispensation. Professor Sihanya acknowledges that the fourth

arm of government emerging in Kenya’s constitutional framework is the

commissions and independent offices.2 This paper indulges in a discourse on

the commissions and independent offices as the fourth arm of the government.

In our disquisition, Kenya will be used as the thematic state although we will

also delve in a comparative analysis of the commissions and independent

offices in selected countries. The countries include United States of America,

the United Kingdom, South Africa, Nigeria and Uganda. We look into the place

of the commissions and independent offices in the power structure and their

role in service delivery and resource sharing. A specific reference is made to the

Constitution of Kenya 2010 with regard to the aforesaid. Our discourse further

considers the typology of the constitutional and statutory commissions and

independent offices as well as their mandates, structure and operations.

Moreover, we explore the relationship between the commissions and the

presidency.

†Legal Assistant, Professor Albert Mumma & Company Advocates.

1 See Lillian Aluanga-Delvaux, ‘It’s Mixed Reactions to Proposals to Cut Down on Commissioners’ Standard Digital 16 March 2014. Available at: <https://www.standardmedia.co.ke/mobile/?articleID=2000106892&story_title=it-s-mixed-reactions-to-proposals-to-cut-down-on-commissioners> [Accessed: 17 July 2014].

2 Ben Sihanya, ‘Constitutional implementation in Kenya, 2010-2015: Challenges and prospects’ FES Kenya Occassional Paper, No. 5 (2011) at p38. Available at: <http://library.fes.de/pdf-files/bueros/kenia/09857.pdf> [Accessed: 12 July 2014].

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1.1. Commissions and Independent Offices under the Constitution of

Kenya 2010

Under Article 248 of the Constitution of Kenya 2010, twelve institutions have

been enumerated as commissions and independent offices. The commissions

include: the Teachers Service Commission; the National Police Service

Commission; the Kenya National Human Rights and Equality Commission; the

Parliamentary Service Commission; the Independent Electoral and Boundaries

Commission; the Commission on Revenue Allocation; the Judicial Service

Commission; the Public Service Commission; the Salaries and Remuneration

Commission; and the National Land Commission. The independent offices have

been enlisted as the Controller of Budget and the Auditor-General. The creation

of these commissions and independent offices has been posited to be an

endeavour to restructure the government in order to catalyse better service

provision and better systems of accountability3. Indeed the objects for which

the commissions and independent offices have been created are to: protect the

sovereignty of the people; secure the observance by all State organs of

democratic values and principles; and promote constitutionalism4. It is

noteworthy that the allocation of funds to each of the commissions and

independent offices is carried out by the parliament, the budget of each of the

institutions being a separate vote5. The commissions and holders of the

independent offices are placed on a high pedestal in the power structure as the

Constitution shields them from arbitrary abuse of power by other arms of the

government. They are subject only to the Constitution and the law and most

importantly are independent and not subject to direction or control by any

person or authority6. The aforementioned provisions arguably present one of

3 JM Kivuva ‘Restructuring the Kenyan State’ Constitutional Working Paper Series No. 1. Society for International Development, SID (2011) at p 9. Available at: <http://www.sidint.net/docs/WP1.pdf> [Accessed: 12 July 2014].

4 Constitution of Kenya (2010), Art 249(1).

5 ibid, Art 249(3).

6 ibid, Art 249(2).

3

the overarching characteristic that places the commissions and independent

offices at the level of being branded the fourth arm of the government. The

rationale for the independence of these institutions anchored in the

independence clauses has been considered in the Supreme Court of Kenya

decision In Re the Matter of the Interim Independent Electoral Commission.7 The

court asserted thus:

“It is a matter of which we take judicial notice, that the real purpose of

the “independence clause”, with regard to Commissions and independent

offices established under the Constitution, was to provide a safeguard

against undue interference with such Commissions or offices, by other

persons, or other institutions of government. Such a provision was

incorporated in the Constitution as an antidote, in the light of regrettable

memories of an all-powerful Presidency…”

Notably, the provision of Article 249 is akin to Article 160(1) that is entrenched

to guarantee the independence of the judiciary. Article 160(1) provides thus: In

the exercise of judicial authority, the Judiciary…shall be subject only to this

Constitution and the law and shall not be subject to the control or direction of

any person or authority. We can discern that the place of commissions and

independent offices is regarded as highly as the judiciary which is one of the

three classical arms of the government.

That the commissions and independent offices are regarded as the fourth arm

of the government is also drawn from the powers in public affairs vested upon

them. It goes without saying that these institutions have been primarily

established by the Constitution rather than ordinary legislation and this

ensures they are cushioned from any political arbitrariness which could

possibly scrap them from the country’s governance architecture.

7 Supreme Court Constitutional Application No 2 of 2011. [2011]eKLR.

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1.2. Commissions and Independent Offices; The Integrity Branch of

Government

The concept of separation of powers has been rooted for in order to avert

concentration and the coincidental abuse of power. State authority is often

distributed among three classical arms of government namely the judiciary, the

executive and the legislature. Each of these arms of government has specific

designated functions and powers to exercise as well as the power to reject

excesses by other arms of government. Even in the separation of powers

concept, the execution of the negative power by each of the three classical arms

of government is prone to abuse to serve their respective interests. The upshot

is that an institutional lacuna is created to inspect the classical three arms of

government and their incidental institutions. The institution set up to fill in the

lacuna ought to be neutral. Under the Constitution of Kenya, the commissions

and independent offices are designed in such a way that they are neutral since

they do not operate under direction from any of the classical arms of

government.

It is argued that the establishment of the commissions and independent offices

under the Constitution of Kenya 2010 will provide elaborate checks and

balances mechanisms that will ensure efficient, accountable and equitable

governance of the political and economic affairs of the state at all levels.

Professor Bruce Ackerman brands the institution that performs such functions

as the “integrity branch”. He suggests that modern constitutions should devote

special provisions that anchor the creation of such a separate institution to

enhance checks and balances. He makes an altar call to the drafters of modern

constitutions to ensure that a separate “integrity branch” remains a top

priority.8 Kenya’s Committee of Experts in charge of drafting of the

Constitution of Kenya heeded to Professor Ackerman’s altar call and the 8 B Ackerman ‘The New Separation of Powers’ 113 Harvard Law Review 3 (2000) at 691. Available at: <http://www.palermo.edu/derecho/eventos/pdf/Ackerman_The_New_Separation_of_Powers_HLR.pdf>

[Accessed: 12 July 2014].

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“integrity branch” has been properly constructed and packaged in the

commissions and independent offices established under the constitution.

Professor Ackerman goes ahead to illuminate the essential elements of the

“integrity branch”. First, they should be clothed with powers and incentives to

engage in ongoing oversight. On this premise, our commissions and holders of

independent offices have been insulated from outside interference by ensuring

that they are independent and not subject to direction or control by any person

or authority. It is also guaranteed that they are subject only to the Constitution

and the law. Secondly, Professor Ackerman suggests that members of the

integrity branch should be guaranteed very high salaries protected against

legislative reduction. Although the high salary perks are not expressly provided

in the Constitution and the respective parent statutes of the commissions and

the holders of independent offices, the Constitution anchors the provisions that

shield their salaries from legislative interference. Indeed the remuneration and

benefits payable to commissioners and holders of independent offices is a

charge on the Consolidated Fund which is not vulnerable to legislative

interference. Besides, the determination of salary perks has been removed from

the purview of legislative functions. The function is now vested in the Salaries

and Remuneration Commission which not only sets and regularly reviews the

remuneration and benefits of all State officers but also advises the national and

county governments on the remuneration and benefits of all other public

officers.9

Justice Spigelman also posits the argument of a fourth arm of the government

being the integrity branch which he equates to be at the same level of

significance as the judiciary, executive and the legislature.10 He defines the

integrity branch or function of government as one which is concerned to ensure

that each governmental institution exercises the powers conferred on it in the

9 Constitution of Kenya (2010), Art 230(4).

10 JJ Spigelman ‘The Integrity Branch of Government’ Australian Law Journal, Vol. 78, No. 11, p. 724, 2004. Available at SSRN: http://ssrn.com/abstract=1809582> [Accessed: 17 July 2014].

6

manner in which it is expected and/or required to do so and for the purposes

for which those powers were conferred, and for no other purpose.11 The

foregoing definition propounded by Justice Spigelman perfectly mirrors the

objects of the commissions and independent offices as anchored under Article

249(1) of the Constitution of Kenya 2010.

Although the argument fronted by Professor Ackerman on the integrity branch

points to a powerful authority he underscores that such body must also be

subjected to checks and balances. He rightfully remarks: once we have created

our constitutional watchdogs, we must take steps to keep them under

control.12 Professor Ackerman makes a case for expansion of the mandate of

the integrity branch beyond the ambit of fighting corruption. Be that as it may,

he acknowledges the looming dangers that come with giving too much

authority to the integrity branch. For instance, such an institution with a

broader jurisdiction is more likely to interrupt the operations of politically

responsible authorities and may be a tempting target for politicised

vendettas.13 The latter challenge has been felt by the commissions in Kenya.

Lately the political class has been up in arms against the commissions; calling

for the reduction of the number of commissioners to the bare minimum of

three.14 The argument is that there is need to cut the public wage bill that has

been skyrocketing.

The commissions and independent offices have an indispensable role in

resource sharing. The Commission on Revenue Allocation makes

recommendations on the sharing of financial resources spanning from

financing of and financial management by county governments. First, the

Commission on Revenue Allocation (CRA) must be consulted in financial

11 ibid, at p6.

12 B Ackerman (n 6) at p692.

13 ibid, at p693.

14 See Lillian Aluanga-Delvaux (n 1).

7

legislations dealing with sharing of revenue or any other financial matter

affecting the county governments. Under Article 205 of the Constitution the

CRA is required to consider the provisions of any Bill on the aforementioned

areas and make recommendations to the National Assembly and the Senate.

The CRA must also be consulted by the Senate in the division of revenue

among the counties. Under Article 217 of the Constitution, the Senate is

enjoined to request and consider the recommendations from the CRA

concerning the basis of revenue sharing among the counties.

2.0. Typology of Commissions and Independent Offices

Schwalbe classifies commissions on the basis of the nature of their creation

and functions. He therefore categorises them as presidential, congressional and

regulatory.15 Steve Schwalbe’s typology of commissions seems to be heavily

influenced by the US jurisdiction. According to Schwalbe, congressional

commissions are established by the legislation of the Congress and are mainly

tasked with making policy recommendations. Since they are established by the

statutes, such commissions may be referred to as statutory commissions in the

Kenyan context as shall be highlighted hereunder in the typology of

commissions by one of Kenya’s constitutional scholars. Schwalbe’s typology of

commissions also highlights that presidential commissions are established at

the request of the president, usually on an ad hoc basis to advise the president.

is the national legislative body in USA. In the Kenyan context, we would simply

talk of parliamentary commissions. Regulatory commissions, according to

Schwalbe, have the longest tenures compared to the other commissions. Their

mandate goes beyond reporting of recommendations since they may be

conferred judicial, administrative and policy-making powers by the congress.16

15 Steve Schwalbe, “Independent commissions: Their history, utilization and effectiveness’ at p3. Available at: <https://weathercoalition.org/sites/default/files/documents/2013/independent_commissions.pdf> [Accessed: 16 July 2014 ].

16 ibid, p5.

8

The regulatory commissions are amenable to the control of the president, the

Congress and the Courts hence their independence is not usually guaranteed.

According to Professor J.B. Ojwang’ there are three basic types of commissions

in Kenya, namely permanent presidential commissions, permanent statutory

commissions and ad hoc commissions. However, following this typology by

Professor Ojwang’ we can add a fourth category of commissions established

under the Constitution of Kenya 2010 as Permanent Constitutional

Commissions. Nevertheless, Rowe and McAllister note that there are difficulties

in establishing a firm typology of commissions.17

2.0.1.Permanent Presidential Commissions

These commissions are established by the Executive to in order to take over

from the bureaucracy and they operate under specific terms of reference.18

Benjamin Nwabueze notes that the members of the commission are appointed

by the President and also removable by him only on grounds of incompetence

or misbehavior.19 Moreover, the Commission is largely dependent on the

President for its authority and prestige with the public.20 Professor Ojwang’

sets out the rationale for the permanent presidential commissions. He notes

that they are meant to create a basis of special attention for public issues of

special nature. Moreover, they ensure the application of national policy and the

assertion of sovereignty in matters that are of special local importance.21

Examples of such commissions in Kenya include the Permanent Presidential

17 Mike Rowe & Laura McAllister “The Roles of Commissions of Inquiry in the Policy Process,” 21 Public Policy and Administration No. 4 (2006) at p100. Available at: <http://ppa.sagepub.com/content/21/4/99.full.pdf+html> [Accessed: 11 July 2014].

18 Jackton B. Ojwang ‘Constitutional Development in Kenya: Institutional Adaptation and Social Change’, African Centre for Technology Studies (ACTS), Nairobi (1990), at p179.

19 Ben[jamin] O[bi] Nwabueze (1974) ‘Presidentialism in Commonwealth Africa’, St. Martin’s Press, New York, at p206.

20 ibid, p207.

21 JB Ojwang’ (n 17) at p180.

9

Commission on Soil Conservation and Afforestation and the Permanent

Presidential Music Commission in this category of commissions.

When the Permanent Presidential Music Commission was formed, President

Moi appointed all the members of the Commission. Nine individuals were

appointed through Kenya Gazette Notice No 2132 of 1988. The Commissions is

presently a department in the Ministry of Sports, Culture and Arts.22

2.0.2.Permanent Statutory Commissions

They are akin to the Congressional Commissions under Steve Schwalbe’s

typology. They perform functions that are exercised by either the Executive or

the Legislature.23 The rationale for their establishment is that there are matters

with policy and technical complexity which would require that they be

relocated to a narrower body with relevant expertise.24 Schwalbe mirrors that

expertise to comprehend complex and technical policy problems formed the

backdrop for establishment of such commissions.25 He adds that formation of

such commissions is also informed by the need to reduce the workload of the

legislative branch.26 Examples of Commissions in this category in the Kenyan

context include the Law Reform Commission27, the Kenya Meat Commission28,

the Communications Commission of Kenya29, the National Cohesion and

Integration Commission30.

22 See <http://www.minspoca.go.ke/?page_id=295> [Accessed: 21 July 2013].

23 JB Ojwang’ (n 17) at p182.

24 ibid.

25 S Schwalbe (n 15) at p4.

26 ibid.

27 Established by the Law Reform Commission Act No. 2 of 1982.

28 Established by the Kenya Meat Commission Act Cap 363 of the Laws of Kenya.

29 Established by the Kenya Communications Act No. 2 osf 1998.

30 Established by the National Cohesion and Integration Act No. 12 of 2008.

10

These Commissions are established with specific sectoral functions. For

instance the Kenya Meat Commission was established to purchase cattle and

smallstock, and to acquire, establish and operate abattoirs, meat works, cold

storage concerns and refrigerating works for the purpose of slaughtering cattle

and smallstock, processing by-products, preparing hides and chilling, freezing,

canning and storing beef, mutton, poultry and other meat foods for export or

for consumption within Kenya, and to confer certain exclusive rights upon the

Commission.31 The National Cohesion and Integration Commission was

established to facilitate and promote equality of opportunity, good relations,

harmony and peaceful co-existence between persons of the different ethnic and

racial communities of Kenya, and to advise the Government on the

aforementioned aspects.32 The Communications Commission of Kenya was

established as the regulatory body of the communications sector in Kenya.

2.0.3.Ad Hoc Commissions

These are basically commissions of inquiry which shall be discussed in detail

hereunder on the subtopic “government by commissions of inquiry?”

2.0.4.Permanent Constitutional Commissions

The Constitution of Kenya 2010 entrenches a number of Commissions.

Although established under different Articles of the Constitutional, all the 10

commissions have been enumerated under Article 248. As has been highlighted

in this discourse, the objects for the establishment of these Commissions

include: to protect the sovereignty of the people of Kenya, to secure observance

of democratic values and principles by all State organs and to promote

constitutionalism. It is noteworthy that the Constitution tasked the National

Assembly with enacting legislations to give full effect to the provisions relating

to the Commissions. For instance, under Article 59(4), the Parliament has been

31 Kenya Meat Commission Act, Preamble.

32 National Cohesion and integration Act, s 25.

11

mandated to enact legislation which may also restructure the Kenya National

Human Rights and Equality Commission. The legislations have also been

enacted to make further provisions relating to the power and functions of the

Commissions, qualifications and procedure for appointment to the

Commissions.33

3.0. The Relationship between the Commissions and the Presidency, the

Office of the President and the Administrative Bureaucracy

In this section we consider how the commissions relate with the president, the

office of the president and the administrative bureaucracy. We begin with the

commissions under the Constitution. Chapter 15 of the Constitution sets out

inter alia the objects, authority and funding of Commissions; composition,

appointment and terms of office; removal from office and general funtions and

powers, incorporation of commissions and independent offices and reporting by

commissions and independent offices to the President, National Assembly or

the Senate.

The President has a role to play in the appoinment of the Chairpersons to all

the Constitutional Commissions. The only mandate s/he has with regard to

direct appointment of the chairperson is in the case of the Salaries and

Remuneration Commission.34 In all other Constitutional commissions, the role

of the President is restricted to appointing the chairperson after nomination by

a different body and the approval of the National Assembly. The President also

appoints members to the commissions who have been nominated by the

stipulated bodies and who have been approved by the National Assembly.

33 See for instance the Preamble to: Salaries and Remuneration Commission Act No. 10 of 2011, National Land Commission Act No 5 of 2012, Commission on Revenue Allocation Act No 16 of 2011.

34 See Constitution of Kenya (2010), Art 230(2)a. However, the mandate of the President under this provision was not exercised when the first chairperson to the SRC was appointed. The Constitution required that the appointment should be in accordance with the National Accord and Reconciliation Act which has since been repealed.

12

The President’s role is not diminished once the commissions are established.

For instance, he receives the written notices of resignation from office by

members or the chairpersons of the commissions.35 The President is mandated

to notify in the Kenya Gazette every resignation, vacancy or termination in

some of the Commissions.36 The President has a role in removal of a member of

a Commission from office.37 The President receives the petititon for removal

from the National Assembly. On receiving the petition, the President suspends

the commissioner and forms a tribunal to investigate the matter. The tribunal

would then report the facts to the President and make a binding

recommendation. The President is then required to act upon the

recommendation within a period of thirty days. The President thus has some

authority over the commissions.

In the perfomance of the functions of the Commissions, the President has some

roles to undertake. For instance, in the execution of the mandate of removing

judges from office, the Judicial Service Commission sends petitions to the

President who will then suspend the judge and form a tribunal to investigate

his or her conduct. Similarly, the JSC recommends to the President the

persons for appointment as judges, Chief Justice, Deputy Chief Justice, Chief

Registrar. It is imperative to note that the functions of the commissions have a

great bearing on the office of the President. For instance, the Salaries and

Remuneration Commission sets and regularly reviews the remuneration and

benefits of all State officers. The interpretation of “State officers” includes the

President. Moreover, the Commissions have a crucial role in policy

recommendations to the government. The President, being the head of

government, thus heavily relies on the performance of the functions of the

35 See Commission on Revenue Allocation Act, s 8(1); Salaries and Remuneration Act, s 9(1); National Land Commission Act, s 10(1); Teachers Service Commission Act, s 10(1); National Police Service Commission Act, s 8(1). The Judicial Service Act No. 1 of 2011 is however silent on the recipient of the notice of resignation.

36 Examples include the Salaries and Remuneration Commission, Teachers Service Commission. The duration for publication of the notice ranges from 7 to 14 days within the occurrence of the vacancy.

37 Constitution of Kenya (2010), Art 251.

13

commissions. The National Land Commission is mandated to recommend a

national land policy to the national government; the Judicial Service

Commission recommends the conditions of service of the judges, judicial

officers and staff of the judiciary; the recommendations of the Commission on

Revenue Allocation must be considered before passing Bills on appropriation of

money, revenue sharing and county financial matters.

All the Commissions have a reporting obligation to the President. They are

required to report to the President on the extent to which their mandate has

been executed. This is required as soon as practicable after the end of each

financial year.38

4.0. Government by Commission of Inquiry

Commissions of inquiry have been widely used by the governments, usually for

purposes of carrying out investigations. It is noted that the subjects of

commissions of inquiry are: consideration of legislative policy, inquiry into the

activities of administrative departments, and inquiry into social conditions.39

Be that as it may, other factors such as political motivations have been cited as

the reasons for formation of commissions of inquiry.40 The Kenyan context

seems to mirror the foregoing assertion. Most of the recommendations made by

the commissions of inquiry in Kenya have failed to see the light of day. The

Truth Justice and Reconciliation Commission pointed out in its report the

manner in which implementation of the reports was riddled with controversy.

For instance, the report of the Judicial Commission of Inquiry into Tribal

Clashes in Kenya (Akiwumi Commission) was submitted to the President in

August 1999 but was not released to the public till towards the end of 2002.41

38 Constitution of Kenya (2010), Art. 254.

39 M Rowe & McAllister (n 17) at p102.

40 ibid.

41 TJRC, ‘Report of the Truth Justice and Reconciliation Commission’ Vol III (2013) at p2. Available at: <http://www.tjrckenya.org/images/documents/TJRC_report_Volume_3.pdf>. [Accessed: 17 July 2014].

14

TJRC notes that the government also ignored and contested the findings of the

Commission.

Nearly all the four presidential regimes in Kenya have been characterised by

formation of commissions of inquiry. Examples of Commissions of Inquiry in

Jomo Kenyatta’s administration include: the Kenya Education Commission

(1963); the Agricultural Commission (1967); the Commission on the Law of

Succession (1967); the Commission on the Law of Adoption (1974). Some of the

Commissions of Inquiry in the Moi administration include the Miller

Commission (1984); the Gicheru Commission (1989); the Devil Worship

Commission (1994); the Hancox Commission; the Mtongwe Ferry Disaster

Commission (1994); the Davy Koech Commission (1999); the Akiwumi

Commission (1998). Examples of Commissions of Inquiry in the Kibaki

administration include: the Ndung’u Commission (2003); the Bosire

Commission (2003); the Muthoga Commission (2003); the Waki Commission

(2008); the judicial commission of inquiry into the ethnic violence in Tana

River, Tana North and Tana Delta districts (2012). Since independence Kenya

has had up to seventeen commissions of inquiry.42 However, only the Waki

Commission has been lauded as having had a profound impact since it forms

part of the genesis of the ongoing cases at the International Criminal Court.43

Rowe and McAllister note that commissions of inquiry are ways of delaying

ministerial and collective government decisions.44 The illustration of the

Akiwumi Commission cited earlier on in this discourse is illustrative. The

commissions of inquiry in this regard are used by the government of the day to

try and obscure an issue while at the same time appearing to be concerned

42 Pravin Bowry, ‘Commission of Inquiry into Terror a Bad Idea’, Standard Digital (9 October 2013). Available at: <http://www.standardmedia.co.ke/?articleID=2000095149>[Accessed: 12 July 2014].

43 ibid.

44 M Rowe & McAllister (n 17) at p110.

15

about it. Indeed Schwalbe records that commissions are formed to provide a

convenient scapegoat to deflect the wrath of the electorate.45

However, commissions of inquiry have not entirely been labelled as ineffective.

Rowe and McAllister assert that they have a distinctive and constructive role

since they make meaningful and significant contribution to the policy

process.46 Their place in Kenya’s governance system is further illustrated by

the enactment of the Commissions of Inquiry Act Cap 102 of the Laws of

Kenya. The Act empowers the President to appoint commissioners to inquire

into and report on matters of public interest referred to them. The opinions

expressed by some Kenyans however indicate that they are apprehensive about

the idea of commissions of inquiry. Makokha notes that ‘commissions of

inquiry are not meant to find out the truth. If they accidentally stumble on it, it

is quickly buried in collective and official amnesia. Every time a commission of

inquiry is set up to investigate any matter in Kenya, it is usually a warning that

the State plans to do absolutely nothing about a problem’.47 Opinion has been

voiced on certain matters that should not be subject to the investigations of a

commission of inquiry. Bowry asserts that matters of terrorism, State security

and in-house security failures should are not fit for the public glare.48 This

follows against the backdrop of the intended appointment of a commission of

inquiry by President Uhuru Kenyatta to look into the Westgate terror attack

incident.49

45 S Schwalbe (n 15) at p7.

46 ibid, at p111.

47 Kwanchetsi Makokha, ‘Repeal Commissions of Inquiry Act, 1962’ (18 July 2008). Available at: <http://kenyapolitical.blogspot.com/2008/07/kwamchetsi-makokha-repeal-commissions.html> [Accessed: 12 July2014].

48 P Bowry (n 42).

49 See Olive Burrows, ‘Commission of Inquiry to Probe Westgate Attack’. Capital News (1 October 2013). Available at: <http://www.capitalfm.co.ke/news/2013/10/commission-of-inquiry-to-probe-westgate-attack/> [Accessed: 12 July2014].

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5.0. The Comparative Constitutional Law and Practice in Other

Jurisdictions

In this section we take a brief comparison of the law and practice on

commissions in other jurisdictions. We focus on United Kingdom and USA.

5.1.1. United Kingdom

In UK there are Royal Commissions, usually set up on ad hoc basis by the

government (formerly by the Crown) to investigate a matter of public and

political concern.50 There is a decline in the frequency of their establishment

although they characterise England’s constitutional and policy framework.51

The Royal Commissions have been gradually replaced by less formal

commissions, committees, reviews and the use of other types of inquiry. Rowe

and McAllister note that these commissions exhibit a genuine spirit of

inquiry.52 There are also Tribunals of Inquiry. In England for instance, the

tribunals of inquiry are governed by Tribunals of Inquiry (Evidence) Act 1921.

Whereas the appointment of inquiries is predominantly the mandate of the

President in Kenya, the law and practice in England allows direct

parliamentary involvement.53

In both England and Kenya, there are no specific qualifications for

appointment to a commission of inquiry. The appointing authority has the

discretion to appoint the persons of their choice.

50 M Rowe & McAllister (n 17) at p99.

51 ibid, at p100.

52 ibid, at p105. Some of the enumerated examples include McIntosh Commission on Local Government and the Scottish Parliament (1999) and Kerley Working Group (2000) formed by the Scottish Executive.

53 African Centre for Open Governance, ‘A Study of Commissions of Inquiries in Kenya’ AfriCOG Reports (2007) at p4. Available at: <https://www.africog.org/reports/Commissionsofinquirypaper.pdf> [Accessed: 14 July 2014].

17

5.1.2. USA

The practice in Kenya has been that members of the bar and the bench

predominantly serve in the commissions of inquiry. In the USA the 1972

American Code of Judicial Conduct and Ethics issued by the American Bar

Association prohibits judges from serving in the inquiries or in any other extra-

judicial capacity except in matters dealing with the improvement of the law, the

legal system or administration of justice.54

Commissions are an effective mechanism used by the government to address

problems and circumstances where there is federal executive branch

incapacity.55 They commissions are regarded as non-partisan, neutral option to

address bureaucratic policy problems.56

The appointment of the chairperson of an independent commission involves a

number of agencies. The chairperson is selected by the organisation creating

the commission, whereupon he/she is formally nominated by the President and

approved by the Senate. The remaining members can either be selected by the

chairman and approved by the President and Congress, or politically mandated

in the commission legislation.57 The tenure of the commissions is often limited.

The presidential and congressional commissions usually last for less than two

years whereas the regulatory commissions last longer so as to provide

continuity and stability to the oversight.58 With regard to funding, the

instrument used to establish the commission determines the source of funds.59

This is similar to the context in Kenya where for instance the Constitution has

mandated the Parliament to allocate adequate funds to the commissions to

54 Canon 5 (G) disallows extra-judicial appointments.

55 S Schwalbe (n 15) at p9.

56 ibid.

57 ibid, at p10-11.

58 ibid, p12.

59 Ibid, p14.

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enable them perform their functions.60 In both jurisdictions, the President has

some degree of influence on the composition of the commissions since he is

mandated to take part in the appointment of members and chairpersons of

commissions.

60 Constitution of Kenya (2010), Art 249(3).

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REFERENCE

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