Commissions and Independent Offices in Kenya
The constitution of Kenya protects institutions which protect democracy. Sometimes the work of institutions that protect democracy angers government. A constitution can insulate such institutions from being undermined by government.
So, modern constitutions usually include a human rights commission whose job it is to point out human rights abuses by the government and an electoral commission so the government can’t interfere in elections, among others.
The Proposed Constitution establishes 11 commissions and requires Parliament to establish another one: an independent ethics and anti-corruption commission. Each of these commissions protects the constitution and democracy. Two other independent offices – the Controller of Budget and the Auditor-General – do the same.
A description of each commission is found in the particular Chapter of the Proposed Constitution linked most closely to its work. The Kenya National Human Rights and Equality Commission is in Chapter 4 with the Bill of Rights. The Independent Electoral and Boundaries Commission is in Chapter 7 which deals with elections. And so on.
Chapter 15 contains the provisions that protect all of the commissions and the Controller of Budget and Auditor-General. It declares their independence, ensures that appointment of their members is open and accountable, protects their members from arbitrary removal, and sets out their powers. And, reinforcing the gender-sensitivity of the Proposed Constitution, it says that the chairperson and vice-chairperson of a commission can’t both be men or both be women – a woman must hold down one position and a man the other.
The commissions in the Kenya Constitution are:
The Kenya National Human Rights and Equality Commission. It protects human rights and can investigate complaints. Anybody can complain to the Human Rights Commission if their rights are violated. This Commission will also act as an ‘ombudsman’ or public protector. This means that it can investigate complaints that a public official has treated someone unfairly, refused to give them a benefit to which they are entitled or delayed too much in performing a function.
The National Land Commission. Among other things, it will manage public land, recommend land policies to the national government, suggest a programme for registering title in land and investigate historical land injustices.
The Independent Electoral and Boundaries Commission. It is responsible for elections and for demarcating constituency and ward boundaries. It must register voters, run free and fair elections and declare election results. A person who in the past five years has been a member of Parliament or of a county assembly or stood for election may not be a member of the IEBC.
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The Parliamentary Service Commission. It is responsible for the administration of Parliament.
The Judicial Service Commission. It selects the judges that must be appointed by the President, deals with complaints against magistrates, judicial officers on other subordinate courts and the administrative staff of the judiciary, and can start proceedings for removing a judge.
The Commission on Revenue Allocation. This is the expert commission that makes recommendations to Senate about how the county share of funding should be divided among the counties each year. It must also make recommendations on other financial matters concerning counties.
The Salaries and Remuneration Commission. It meets the overwhelming demand of the public for an independent body to set the salaries of State officers including the President and other members of Cabinet, MPs, members of county assemblies, county governors, judges and magistrates, members of commissions and principal secretaries. It also makes recommendations on the remuneration of other public officials (including employees in all government departments).
The Public Service Commission. It appoints people to the public service. Its most important function is to ensure that appointments are competitive and that the public service represents all Kenya’s communities. People must not be appointed on the basis of their party membership, for instance. This Commission also deals with the discipline of members of the public service. But, it does not have authority over employees of Parliament, judges, magistrates and other judicial officers, teachers or the police. Nor does it control county administrations.
The Teachers Service Commission. This Commission registers and recruits teachers, manages their promotion and transfers and runs disciplinary enquiries.
The National Police Service Commission. It appoints people to the police service must ensure that the composition of the police reflects the diversity of Kenya. It also deals with disciplinary matters in the police.
Commission for the Implementation of the Constitution. This is a temporary commission intended to exist for only five years. It must oversee the implementation of the Proposed Constitution. It will do this by working with other institutions on new laws and administrative procedures. It will report regularly to a parliamentary committee.