The arrest, detention and ‘deportation’ of Mr. Miguna Miguna left many Kenyans shocked. This is because it has exposed the rot within the criminal justice system-something that characterized the dark days of the 80’s and 90’s in Kenya. While this is deliberately not a brief for Mr. Miguna, the uncouth, primitive, pedestrian, unprofessional and unlawful behavior of especially the Police Service left a lot to be desired. It was not only so embarrassing but also a manifestation of total disregard for Courts, Statute and Constitutional Human Right Law.
The funny bit of it is that at the end of it all, the Police appeared as more of the criminals as opposed to the treason-charged and self-proclaimed NRM general. Why should the Police Service behave this recklessly? Why play a game of cat and mouse with the High Court while breaking a myriad of fundamental provisions of the Human Rights Bill along the way? The answer to these questions is political interference. Interestingly however, the drafters of the Constitution of Kenya 2010- aiming to decentralize powers of the Executive- put safeguards in the name of Independent Offices, Commissions, the Judiciary and Parliament as a way to achieve both horizontal and vertical separation of powers.
Philosophically, Hans Kelsen assertions on a “sovereign” as one with ultimately all the power, someone who is not subject to anyone, doesn’t answer to anyone, yet everyone answer to them is frowned upon. Years of scholarship have emphasized that this “sovereign” doesn’t exist, especially in a democracy characterized by separation of powers. It is against this backdrop that Article 1 of the Constitution of Kenya, 2010 gives sovereign powers to the people of Kenya. It is carefully and deliberately crafted to bring out the rule of law and power of the people. The President, Cabinet Secretaries, the Speakers, the Inspector-General of Police, the Attorney General are not therefore, sovereign but answerable to the Constitution and to the people of Kenya. This paper reflects on “Independent Offices” as a subject that has caused a back and forth since the promulgation of the supreme law.
The word “independence” ordinarily means separate. It denotes someone who is free and not controlled by anyone. Independent Offices as designed in the law however, have autonomy as much as they are accountable.
Simply put, these offices are deliberately designed this way, so that the holders can perform optimally without interference but also be properly accountable to other arms, organs, agencies and the people without passing blame. The Chief Justice for example, has the autonomy in managing and leading the Judiciary without interference by Parliament or the Executive but he is equally answerable to Parliament and Judicial Service Commission should there be questions. The Constitution of Kenya, 2010 majorly instituted Independent Commissions and others as discussed herein.
Independent Commissions (Chapter Fifteen)
Independent Commissions are so central to the working and administration of Government under the current regime. There are those that were created to cure historical injustices, while others have purely administrative functions dealing with different but important sectors of Government. They were created to decentralize presidential powers while promoting efficiency, accountability, constitutionalism and values and principles of the Constitution 2010. There have been a number of “conflicts” witnessed between some of these commissions and other organs of Government. These often undermine and interfere with the objects and independence of these Commissions. The National Land Commission set up under Article 67 for example, had a lot of tussles with the Ministry of Land over their functions and overlapping roles. Today the members of the commission are engulfed with accusations of corruption.
The Salaries and Remuneration Commission is another that has had a fairly hard time. Article 230(4) of the Constitution gave them the power to set and regularly review the remuneration of public servants as they advise both County and National Governments. This was brought in to ensure equity and equality in public service remuneration as they manage the wage bill. They had to face confrontations, conflicts and interference with their objects especially with parliament and it is not surprising that as the commission winds up, members of parliament are seeking more money in the name of car grants, mileage allowances, etc. The National Police Service Commission has also recently been on the spot for conducting interviews subject to presidential directions contrary to the Constitution and the law.
Independent Boundaries and Electoral Commission (IEBC)
The drama and politics around the IEBC after the nullification of the August 8 Presidential election justifies this article in more than one way. As much as it is almost forgotten the Commission is still accused of contempt of court with regards to opening the servers. This emphasizes the earlier point that with independence and autonomy comes accountability. Away from this, NASA’s irreducible minimums and the Jubilee Party’s insistence on the repeat elections coupled with in-fighting within the Commission along political lines almost torpedoed Kenya’s political stability. This was tragic as both international and municipal laws insist on independence, neutrality, fairness, accuracy and credibility in the working of the electoral management body. Kenya’s electoral history paints a very dark picture when it comes to EMB’s especially the Samuel Kivuitu-led defunct ECK. However, the lessons that should have been learnt seem to have dried away like the morning dew.
Office of the Attorney General
The Office of the Attorney General is another Independent Office. This is because he/she is the principle legal adviser to the Government. He/she has the duty to appear and defend the Government in both civil and criminal case. The office’s autonomy is important for objectivity, professionalism and accountability. In the event that TV stations are shut down by Government in contempt of court orders, then the independence of the Office of the Attorney General comes to question. Article 156 (6) of the Constitution of Kenya 2010 states that the Attorney General is the guardian of the rule of law and public interest and that involves obeying court orders and respect to the due process of the law.
Office of the Director of Public Prosecution
This is a new office that was historically cut out of the office of the Attorney General. The idea behind this was to take the role of prosecution from the police and give it to lawyers. The DPP under Article 157 (10) has the authority to enter criminal proceedings without directions. He/she may also direct the Police Service and the Inspector General to conduct investigations on a case. The importance of independence of the office cannot be over-emphasized. The Office of the DPP should however obey the courts of law; contempt of court is the lowest any lawyer can get. The case of Mr. Miguna also raised questions as to the charge sheet and the role of the Police vis-a-vis the Office of the Director of Public Prosecution.
Office of Inspector-General of Police
This Office is a new creation of the Constitution of Kenya, 2010. It was designed to replace the office of the Police Commissioner. The Inspector General performs independent command of the Police Service pursuant to Article 245 (2) (b). In the efforts to transform the police force into a police service, there was need to create an independent police command structure which enables them to work effectively without interference but with accountability.
This underscores the need for the police to be neutral and professional in political matters. As for the command structure neither the President nor the Cabinet Secretary in charge has a right to direct the Inspector-General. He/ She takes full responsibility when civilians are killed or court orders are not obeyed.
Other Independent Offices
The doctrine of Separation of powers primae facie creates three independent but coordinating offices, thus office of the President, Chief Justice and President of the Supreme Court and Office of the Speaker from the two houses. The Governor’s office and the Country Assemblies under Chapter 11 of the Constitution of Kenya 2010 and the County Government Act also have independence and autonomy from the National Government. This point is further cemented by Schedule 4 giving the different functions to the County as well as National Government.
The Office of the Controller of Budget under Article 228(1) of the Constitution of Kenya, 2010 and the Auditor-General under article 229(1) are also independent offices meant to streamline public finances.
Checks and balances is the name of the game. This is one way to ensure efficiency and inclusivity in running the affairs of government. They must however work in cooperation and coordination. There is therefore a need to keep to the rule of law even as Kenya cultivates the culture of democracy.
“I am a Lawyer, I go for due process, I go for equity and equality, and these things mean a lot to me” -Mohamed Elbaradei.
Ouma Kizito Ajuong’- Poet, Lawyer, Person with Disability, Advocate of the High Court of Kenya, LLB (Hon.) Kenyatta University, PGD KSL, Legal Practice.