Independent Commissions

Blog Loise Mwakamba
by Samuel Marete
In this article, we consider the following Commissions:
  1. Kenya National Human Rights and Equality Commission
  2. Independent Electoral and Boundaries Commission
  3. Judicial Service Commission
  4. National Police Service Commission
  5. Parliamentary Service Commission
  6. Public Service Commission
  7. Salaries and Remuneration
The Kenya National Human Rights and Equality Commission (Article 59)
The functions of the KNHREC will be as follows:
  1. To promote respect for human rights and develop a culture of human rights in the Republic;
  2. To promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development;
  3. To promote the protection, and observance of human rights in public and private institutions;
  4. To monitor, investigate and report on the observance of human rights in all spheres of life in the Republic, including observance by the national security organs;
  5. To receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been violated;
  6. On its own initiative or on the basis of complaints, to investigate or research a matter in respect of human rights, and make recommendations to improve the functioning of State organs;
  7. To act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights;
  8. To investigate any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice;
  9. To investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct;
  10. To report on complaints investigated under paragraphs (8) and (9) and take remedial action; and
  11. To perform any other functions prescribed by legislation.
By including the KNHREC in the Constitution, the COE hoped to entrench it in the country’s laws and provide civil society an avenue through which human rights abuses could be reported and investigated. However, the COE does not include the members and/or structure and function of the KENHREC in its provisions. This, presumably, will be done by supplementary Acts of Parliament.
The Independent Electoral and Boundaries Commission (Article 88)
To begin with, a person is not eligible for appointment as a member of the Commission if they:
  1. Have, at any time within the preceding five years, held office, or stood for election as—
    1. a member of Parliament or of a county assembly; or
    2. a member of the governing body of a political party; or
    3. Hold any State office.
Further, a member of the Commission shall not hold another public office.
The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—
  1. The continuous registration of citizens as voters;
  2. The regular revision of the voters’ roll;
  3. The delimitation of constituencies and wards;
  4. The regulation of the process by which parties nominate candidates for elections;
  5. The settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;
  6. The registration of candidates for election;
  7. Voter education;
  8. The facilitation of the observation, monitoring and evaluation of elections;
  9. The regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;
  10. The development of a code of conduct for candidates and parties contesting elections; and
  11. The monitoring of compliance with legislation relating to nomination of candidates by parties.
Here at least, the COE saw fit to try and ensure that members of this Commission are independent. The role of the IEBC is even more crucial than it was in the previous elections. In addition to its already critical task of midwifing the electoral process, the task of drawing electoral boundaries (as we saw in the first article on the Legislature) now also falls under its ambit. Interestingly the IEBC is also meant to monitor the amount of money used by or on behalf of a candidate or party in respect of any election. Since we will expect fairness and objectivity from this Commission it is just as well that its members will (hopefully) be independent.
The Judicial Service Commission (Articles 168, 171, 172)
As we have already seen, all judges that the President appoints are appointed on the recommendations of the Judicial Service Commission. The members of this Commission are:
In addition to these duties, the JSC also serves the following purposes:
  1. To initiate the removal of a judge either acting on its own motion, or on the petition of any person to the Judicial Service Commission;
  2. To review and make recommendations on the conditions of service of—
    1. Judges and judicial officers, other than their remuneration; and
    2. The staff of the Judiciary;
    3. Appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament;
    4. Prepare and implement programmes for the continuing education and training of judges and judicial officers; and
    5. Advise the national government on improving the efficiency of the administration of justice.
The Commission is to consist of:
  1. The Chief Justice, who shall be the chairperson of the Commission;
  2. One Supreme Court judge elected by the judges of the Supreme Court;
  3. One Court of Appeal judge elected by the judges of the Court of Appeal;
  4. One High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates;
  5. The Attorney-General;
  6. Two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates;
  7. One person nominated by the Public Service Commission; and
  8. One woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly.
These members, apart from the Chief Justice and the Attorney-General shall hold office for 5 years and be eligible to be nominated for one further term of 5 years.
It may be noted that the Commission consists of 5 judges, the Attorney-General, one person from the Public Service Commission and two members of the public. Being heavy with judges, the independence of the JSC when it comes to recommendations of the terms of service for judges may come into question in the future.
The National Police Service Commission (Articles 245, 246)
The Commission is to consist of:
  1. The following persons, each appointed by the President—
    1. A person who is qualified to be appointed as a High Court Judge;
    2. Two retired senior police officers; and
    3. Three persons of integrity who have served the public with distinction;
    4. The Inspector-General of the National Police Service; and
    5. Both Deputy Inspectors-General of the National Police Service.
The Kenya Police Service and the Administration Police Service will each be headed by a Deputy Inspector-General, both of whom are to be appointed by the President in accordance with the recommendation of the National Police Service Commission. The other functions of the National Police Service Commission are:
  1. To recruit and appoint persons to hold or act in offices in the service, confirm appointments, and determine promotions and transfers within the National Police Service;
  2. Observing due process, to exercise disciplinary control over and remove persons holding or acting in offices within the Service; and
  3. To perform any other functions prescribed by national legislation.
The Parliamentary Service Commission (Article 127)
The Parliamentary Service Commissions is to consist of:
  1. The Speaker of the National Assembly, as chairperson;
  2. A vice-chairperson elected by the Commission from the members appointed under paragraph (3) below;
  3. Seven members appointed by Parliament from among its members of whom—
    1. Four shall be nominated equally from both Houses by the party or coalition of parties forming the national government, of whom at least two shall be women; and
    2. Three shall be nominated by the parties not forming the national government, at least one of whom shall be nominated from each House and at least one of whom shall be a woman; and
    3. One man and one woman appointed by Parliament from among persons who are experienced in public affairs, but are not members of Parliament.
The Parliamentary Service Commission shall be responsible for:
  1. Providing services and facilities to ensure the efficient and effective functioning of Parliament;
  2. Constituting offices in the parliamentary service, and appointing and supervising office holders;
  3. Preparing annual estimates of expenditure of the parliamentary service and submitting them to the National Assembly for approval, and exercising budgetary control over the service;
  4. Undertaking, singly or jointly with other relevant organisations, programmes to promote the ideals of parliamentary democracy; and
  5. Performing other functions—
    1. Necessary for the well-being of the members and staff of Parliament; or
    2. Prescribed by national legislation.
Happily, the Parliamentary Service Commission will not be involved in deciding the terms of service for MPs. This task falls to the Salaries and Remuneration Commission (below). Further, if the PSC takes its role No. 4 seriously, it can provide a check within Parliament against political excesses for which Parliament is currently so famous.
Public Service Commission (Articles 233 -234)
The Public Service Commission is to consist of a chairperson, a vice chairperson and seven other members appointed by the President with the approval of the National Assembly. Further, the Commission shall have a secretary, who is the chief executive of the Commission, shall be appointed by the Commission itself for a 5-year term. The secretary is eligible for re-appointment once.
A person is not eligible for appointment as a member of the Commission if the person:
  1. Has, at any time within the preceding five years, held office, or stood for election as—
    1. A member of Parliament or of a county assembly; or
    2. A member of the governing body of a political party; or
    3. Holds any State office;
    4. Is, or has at any time been, a candidate for election as a member of Parliament or of a county assembly; or
    5. Is, or has at any time been, the holder of an office in any political organisation that sponsors or otherwise supports, or has at any time sponsored or otherwise supported, a candidate for election as a Member of Parliament or of a county assembly.
However, if two general elections for Parliament have been held since the person ceased to be such a candidate or office holder, (3) and (4) above will not hold.
The Commission is to:
  1. Subject to this Constitution and legislation––
    1. Establish and abolish offices in the public service; and
    2. Appoint persons to hold or act in those offices, and to confirm appointments;
    3. Exercise disciplinary control over and remove persons holding or acting in those offices;
    4. Promote the values and principles referred to in Articles 10 (national values and principles)and 232 (values and principles of public service) throughout the public service;
    5. Investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;
    6. Ensure that the public service is efficient and effective;
    7. Develop human resources in the public service;
    8. Review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;
    9. Evaluate and report to the President and Parliament on the extent to which the national values and principles referred to in Articles 10 (national values and principles) and 232 (values and principles of public service) are complied with in the public service;
    10. Hear and determine appeals in respect of county governments’ public service; and
    11. Perform any other functions and exercise any other powers conferred by national legislation.
The powerful role of establishing and abolishing offices in the public service does not extend to:
  1. State offices;
  2. An office of high commissioner, ambassador or other diplomatic or consular representative of the Republic;
  3. An office or position subject to:
    1. The Parliamentary Service Commission;
    2. The Judicial Service Commission;
    3. The Teachers Service Commission;
    4. The National Police Service Commission; or
    5. An office in the service of a county government, except as contemplated in function (9) above.
The independence of the Public Service Commission will prove crucial to the proper functioning of Government.
The Salaries and Remuneration Commission (Article 230)
Members of the Salaries and Remuneration Commission will be appointed by the President. They include:
  1. A chairperson
  2. One person each nominated by the following bodies from among persons who are not members or employees of those bodies—
    1. The Parliamentary Service Commission;
    2. The Public Service Commission;
    3. The Judicial Service Commission;
    4. The Teachers Service Commission;
    5. The National Police Service Commission;
    6. The Defence Council; and
    7. The Senate, on behalf of the county governments;
    8. One person each nominated by:
      1. An umbrella body representing trade unions;
      2. An umbrella body representing employers; and
      3. A joint forum of professional bodies as provided by legislation;
      4. One person each nominated by—
        1. The Cabinet Secretary responsible for finance; and
        2. The Attorney-General; and
        3. One person who has experience in the management of human resources in the public service, nominated by the Cabinet Secretary responsible for public service.
Commissioners under (4) and (5) will not have a vote.
The task of the Salaries and Remuneration Commission is very simple. It is to set and regularly review the remuneration and benefits of all State officers and to advise the national and county governments on the remuneration and benefits of all other public officers.
Constitutionally the Salaries and Remuneration is required to take the following principles into account when setting salaries:
  1. The need to ensure that the total public compensation bill is fiscally sustainable;
  2. The need to ensure that the public services are able to attract and retain the skills required to execute their functions;
  3. The need to recognise productivity and performance; and
  4. Transparency and fairness.
It is highly commendable that although each body whose salaries are to be set has a representative in the Commission, that representative is not a member of that Commission. The further addition of a representative chosen by the Teachers’ Service C omission, the Police Service Commission, trade union and employer representatives adds further independence to this body. I believe this is a well-constructed Commission and it should be able to do a better job than the now infamous Akiwumi Commission.
Next: Conclusion