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].
2
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.
4
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].
5
“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].
16
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.
18
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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