An inquiry into commissions of inquiry

By Pravin Bowry

A time has come in the history of our country to take an honest stock of certain actions of the executive branch of the Government, and weigh the usefulness and efficacy of some of the legal mechanisms used to resolve and investigate major, sometimes sensitive, issues faced by our country.

Justice Samuel Bosire (right) who chaired the Goldenberg Commission of Inquiry with the commission’s vice chairman Nzamba Kitonga (centre) and commissioner Peter Le Pelly. Photo/File

Let’s conduct an inquiry into the setting up of Commission of Inquiries.

It is a little difficult to give a complete list of all commissions of inquiries constituted since independence, but some important Commissions that have been set up over the years include:

1.The Kenya Maize Commission.

2.The Commission on the Law of Marriage and Divorce.

3.The Commission of Inquiry on the Law of Insurance (The Hancock Commission).

4.Judicial Commission Appointed to Inquire into allegations involving Charles Mugane Njonjo.

5.The Ouko Commission of Inquiry (1990-91).

6.The Akiwumi Commission into Ethnic Violence.

7.Judicial Commission of Inquiry into the Goldenberg Affair.

8.The Commission on Higher Education (The Davy Koech Commission).

9.Commission of Inquiry into the Land Law systems of Kenya.

10.The Commission of Inquiry on Post Election Violence (Waki Commission).

Out of the above, in my considered view, only one has been most successful. The Commission on Law of Succession resulted in the Succession Act being enacted in 1980.

The Ndung’u Commission was illustrative and educative, though its recommendations were not implemented.

Big fraud

The Waki Commission showed some muscle. The unorthodox (but not necessarily technically legal) approach was innovative and refreshingly original.

Most Commissions, however, have been a total waste of time, energy, and finances.

The Ouko Commission was disbanded midstream, did not resolve the mystery and in fact the executive manipulated the commission, if I may dare to air a personal view, to get my erstwhile client Jonah Anguka charged most unfairly and thereby taking the Ouko murder case out of public debate in 1992 on the grounds that the matter was sub-judice.

Kenyans, I believe, were gagged into not making the murder an issue in the ensuing 1992 elections.

The Goldenberg Commission was and always will remain a massive farce, as big as the fraud itself. The departure of Justice Aganyanya, the hunted main suspect becoming the hunter and an orchestrated manipulation of the truth by hundreds of side-shows, and again, if I may say so, my un-ceremonial eviction from the Commission when I was coming too close to the bone, are all indicative of no gains made.

The Hancock Commission report was never made public, and no wonder the insurance industry still remains in a mess.

The morality of personnel chairing and being members of the commission being paid millions in remuneration when in Government employment, such as judges, must be questioned.

It would be interesting, for example, to know how much the Njonjo, Goldenberg and Akiwumi commissions each cost the taxpayers.

Diffusing situations

Often Commissions have been used to sideline and sidestep political issues and defuse situations.

The elongation of proceedings always hurts the country. In contrast in a commission of inquiry recently in England, thousands of relevant documents were posted on the Internet for the concerned and interested parties to peruse and make written observations and the inquiry was concluded within a month or so.

The Commission of Inquiries Act requires amendments to become a more effective method of resolving pertinent issues.