Constitutional commissions should be free from executive control

The 2010 Constitution created commissions and independent offices, which was a new phenomenon. These bodies, as the description suggests, had a special status under the law. They were envisioned as a quasi-fourth arm of government, operating independently of the traditional executive, legislative, and judicial branches. Commissions and independent offices are creatures of the Constitution, deriving their authority and mandates solely from it, the sovereign people of Kenya and from the specific legislation that enables their work.

The creation of constitutional commissions and independent offices was driven by the need to separate critical issues—historically prone to abuse by the executive—from the direct control of the government. These issues include land adjudication, which has been a major source of conflict, especially during the 2007-2008 post-election violence. Other sensitive areas include election management, criminal prosecution, policing, human rights violations, and the fight against corruption—each of which has threatened the country’s stability at various points in its history.

Chapter 15 of the Constitution lists 10 constitutional commissions and two independent offices tasked with overseeing a broad range of critical issues from human rights to elections, public service appointments and setting salaries for police and teachers' human resource management. These bodies are mandated to operate independently, to protect national sovereignty, and ensure that all State organs observe democratic values and constitutional principles.

The drafters of the Constitution envisioned them as the answer to the unchecked power that the executive wielded over issues vital to Kenya’s democratic health and survival. For instance, the National Land Commission was to change the situation where the President was able to hive off a whole forest and dish it out to his friends, or hire judges who were then beholden to him. This is reason the Constitution explicitly protects the independence of these offices and why any attempt to amend their independence must be subjected to a national referendum, as outlined in Article 255(1)(g).

Since 2010, the courts have acted as a crucial forum for protecting the independence of these commissions and offices. The Judiciary has repeatedly stepped in to curb executive overreach. For instance, in 2016, the LSK successfully challenged an amendment to the Judicial Service Act, which would have allowed the President to select the Chief Justice from a list of three candidates forwarded by the JSC. The court ruled that such a move would undermine the JSC’s discretion and violate the principle of separation of powers.

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In another landmark case in 2015, the High Court declared the Presidential Benefits (Amendment) Act of 2013 unconstitutional. The National Assembly had failed to consult the Salaries and Remuneration Commission (SRC) when setting retirement benefits for former presidents. The court ruled that matters relating to the remuneration and benefits of State officers are the exclusive domain of the SRC, as per Article 230 of the Constitution.

Famously, the KNCHR successfully challenged the Security Laws (Amendment) Act, which had attempted to create a National Police Service Disciplinary Board. The court found that the amendment was an unlawful encroachment on the functions of the National Police Service Commission.

In each of these cases, the courts have reaffirmed the need for constitutional commissions and independent offices to operate free from executive control. These bodies cannot fulfill their mandates effectively if they are subject to the influence or direction of the very entities they are supposed to oversee. Allowing the executive to meddle in their operations would defeat the very purpose for which they were established.

In conclusion, Kenya’s constitutional commissions and independent offices are essential to the country’s democratic governance. But have they lived up to the expectations set and are they properly equipped to work for the sovereignty of the people, to protect the principles of constitutionalism that underpin Kenya’s democracy?