It’s mixed reactions to proposals to cut down on commissioners

By LILLIAN ALUANGA-DELVAUX

Kenya: Proposals to reduce the number of constitutional commissioners have elicited varied reactions in the ongoing debate on taming the country’s wage bill.  The past week has seen President Uhuru Kenyatta, Deputy President William Ruto, and Cabinet take a 20 per cent pay cut, with the Executive directing parastatal bosses to follow suit.

The Salaries and Remuneration Commission has pegged the country’s current wage bill at Sh500 billion per year. The Executive’s gesture has drawn mixed reactions.

But its perhaps Majority leader Aden Duale’s comments, offering to take a 15 per cent pay cut, should a Bill seeking to reduce the number of commissioners flop, that has reignited debate on a touchy subject.

Simplistic approach

Duale’s proposal to reduce the number of commissioners to three resurfaces months after Parliament made similar threats when MPs differed with the Salaries Review and Remuneration Commission (SRC) over higher perks. Constitutional lawyer Waikwa Wanyoike says the Executive and Legislature are taking a simplistic approach to an otherwise complex problem in finding ways to arrest the current high wage bill. “The discussion should start with the question of why Kenyans wanted a ‘fourth arm of Government’ because this is essentially what the commissions have become,” says Wanyoike.

The lawyer argues one must appreciate that the push, during the Constitution review process, to have independent commissions, was motivated by the fact that the public could not trust the Executive, Judiciary and Legislature. “What we should ask is whether these fears have been eroded. We know that the Executive has not changed much. The same applies to the Legislature, and the Judiciary is still struggling.

The reasons Kenyans sought to have these commissions are still valid,” says Mr Wanyoike. The lawyer also questions whether the move to trim the number of commissioners means the constitutional bodies are “redundant” and don’t need their current capacity, despite the crucial roles they play.

“Regardless of divergent opinion it’s a fact that the Kenya National Human Rights Commission did what the police should have done during the 2008 post-election violence. If the Constitution Implementation Commission weren’t there perhaps we wouldn’t have realised the minimal constitutional gains we have had.”

The Judicial Service Commission has helped bring attitude change within the judiciary, while the National Gender and Equality Commission (NGEC) has fought to ensure protection of positions for the vulnerable and marginalised groups,” says the lawyer.

According to Wanyoike debate centred on reducing the number of commissioners, hinged on questions of their utility should also be extended to the National Assembly and Senate.

“Should we then also be asking what utility we get out of having 349 legislators and over 60 members of the Senate? The Legislature’s functions are essentially oversight and legislative. How much capacity do we really need for this? Are the current numbers including those at the County Assemblies justified and what has been their output?” he asks.

Chapter 15 of the Constitution provides for establishment of at least 10 constitutional commissions with a membership of between three and nine members. These include Kenya National Human Rights and Equality Commission, National Land Commission, Independent Electoral and Boundaries Commission, Parliamentary Service Commission and Judicial Service Commission.

 Others are the Commission on Revenue Allocation, Public Service Commission, Teachers Service Commission and National Police Service Commission. Commission on Administrative Justice Chair Otiende Amollo says an analysis conducted by his office shows the 2013/2014 national budget stood at Sh1,437,564,511,690.

A further look at the justice-related commissions, that is, CAJ, NGEC and KNCHR shows that the three combined were allocated a total of Sh706,894,002, translating to 0.05 per cent of the national budget.

When put together, CIC, KNCHR, CRA, SRC, NPSC, CAJ, NGEC and EACC got a total of Sh2,980,688,123, translating to 0.21 per cent of the national budget. Given the specific mandates of commissions, it follows that allocations will vary.

The Independent Electoral and Boundaries Commission, TSC, Parliamentary Service Commission, Public Service Commission and JSC were allocated Sh172,272,030,841 of the national budget in the 2013/2014 financial year.

This translates to 11.98 per cent of the national budget. Of this allocation, TSC took the lion’s share of Sh148,612,870,015, accounting for 90 per cent of the total allocation to constitutional commissions. This is mainly attributed to the large number of teachers in the country.

Wastage in Government

Most commissions are forced to source donor funding to run their programmes, given the Government allocations of between 20 and 30 per cent essentially go towards operations. Amollo adds that its also crucial to note that all commissions, except five, existed, either as constitutional, statutory bodies or semi autonomous Government agencies, prior to the coming into force of a new Constitution in 2010. Proposals to reorganise commissions also face legal hurdles since disbandment of such bodies will not only require a constitutional amendment but referendum as provided in Article 255.

Commissioners’ tenure is also protected, with Article 251 of the Constitution stating reasons why a member may be removed from office. This includes serious violation of the Constitution, gross misconduct, physical or mental incapacity, incompetence, or bankruptcy. Sending commissioners home before completion of their tenure will therefore mean paying them.

Parliament’s budget and appropriation committee chair Mutava Musyimi is cautious in his view, stating the committee will soon table a report touching on the subject. “Until we conduct a socio economic audit of the Constitution and identify systemic and managerial challenges we may not get very far with this,” says Musyimi.

It is believed that nearly all commissions have had a sitting with the Parliamentary Budget Committee and what remains is to put together findings of these sessions.

A member of the committee, Suba MP John Mbadi, says the question is not about the wage bill within the commissions but expenditure as a whole.

Replicated roles

“We should ask ourselves whether its prudent for a small country like Kenya to have about 40 commissions. The fact that there is wastage in Government does not stop us from also interrogating wastage through other avenues,” Mbadi says.

He argues the number of commissions is high and there is a real danger of replicating roles. “For instance we have a Human Rights Commission and a Gender and Equality Commission. My understanding is that gender issues are also human rights issues so why not merge the two for example? Why must we have each issue in Government have a commission to address it and is this even feasible?” he asks.