Kenya still needs commissions to check an overbearing presidency

Four commissions submitted their end-term performance reports to the President this week.

The moment offers both citizens and state officers opportunity to reflect on how well they have discharged their accountability, advisory and advocacy mandates.

Established in the sixth schedule of the Constitution or by an Act of Parliament, Kenya’s constitutional commissions have their roots in one of the most painful points in our history.

As the controversial 2007 elections descended into post-election violence that rapidly claimed over 1,000 lives and displaced over 500,000, most recognised the systemic failure of an entire governance system.

An executive accused of rigging an election, a judiciary no politician trusted and a police force that had no qualms violating human rights to quell widespread disaffection and violent mass action. With the National Assembly yet to be reconstituted, all the brakes failed.

The 2008 peace accords demanded a new constitutional order that ended the imperial presidency, expanded the bill of rights, promoted rights of marginalised and vulnerable groups and sought transformative policing among other reforms.

With virtually no public institution able to hold the country together, the “don’t be vague, go to the Hague” chorus of politicians shifted the failed state problem to the International Criminal Court to establish the truth of the mass rights violations experienced and who should be held accountable.

The 2010 Constitution introduced civilian independent and domestic oversight over key functions like sustainable civil servant salaries, terms and conditions, human rights-based policing, the progressive realisation of gender equality and an end to identity-based discrimination among other constitutional values.

Among commissions whose terms have come to an end after six years of service are the Salaries and Remuneration Commission (SRC), the Commission of Administration of Justice (CAJ), the Gender and Equality Commission (NGEC) and the Independent Police Oversight Authority (IPOA).

The IPOA lists its achievements in the 12,732 complaints resolved, 30 convictions, monitoring of 514 policing actions among others. The CAJ cites its support to citizens to access information, expanded institutional resources and decentralistion to 16 services.

NGEC notes that it had addressed 624 complaints, published 27 reports and 308 memoranda among other achievements. It is notable that the departing IPOA, NGEC and CAJ commissioners cite common challenges.

They include consistent underfunding, non-cooperation by the police and other state agencies, court delays and little public confidence and awareness in their institutions. Ultimately, the commissions must be judged on their impact on governance and human rights. Over the last six years, has the police become more publicly accountable for its actions? Have the attacks and exclusion of women and other marginalised groups decreased?

Is the salary wage bill more sustainable given our revenue streams and the prevailing economic climate? Does the public, and particularly our vocal Gen Z, believe Kenya has a fair administrative system in place that encourages whistleblowing and right to information? This would take another opinion piece to comprehensively address but readers, I am sure, had their own opinions as we marked the 14th anniversary of the Constitution.

Even where they have fallen short of keeping the Executive operating within the rule of law, the constitutional commissions remain critical to Kenya’s governance architecture.

Where power is increasingly being centralised and weaponised against dissent, the Article 15 agencies are an important check on the imperial presidential dynastic model that Kenya Kwanza had committed to dismantle.

As the commissioners retire, all eyes turn to the recruitment process. President Ruto has promised a transparent recruitment.

Most, I suspect, remain skeptical. If we set aside those being pursued for economic crimes, the national administration’s record of senior appointments seems to hinge on familial and party-political affiliation or loyalty to the Executive.

It will be a pleasant surprise if the next round of appointments includes persons with independent mindsets, a courageous stand for public interest and a professional track record in the areas appointed. Let’s see.