In the past order of things, the president was the paramount chief of the land, a patriarch (Baba wa Taifa), who could neither be challenged substantively by the courts nor Parliament. His word was law and policy and those who shared his delegated authority acted like small chiefs of various fiefdoms in the country. Some of the chiefs and District Officers could appropriate the properties of others for personal gain without suffering legal sanctions. The president was an all-knowing being who had a monopoly of knowledge and was assumed to act in public interest, and this assumption was pretty on the contrary. This was the bad, old order of things; it needed a remedy, and that is exactly what we got in our new constitution.
The new constitution of Kenya promulgated in August of 2010 was passed to ensure that there were sufficient checks and balances between state organs and particularly to check the excesses of the executive arm of government in the exercise of power. The president was no longer a patriarch, and he was just but an important cog in the country’s engine of governance which had many other important levers and cogs. For this reason, the doctrine of separation of powers was heavily intertwined in the structure of the constitution. Different arms of government and constitutional commissions and offices were set up to achieve this goal. To meet structural goals, the constitutional commissions were given full autonomy, had definite funding and were structured in such a way that they did not have to depend on parliament or the executive for funding. However, as the constitution has been in force for around four years now, there is a need to examine whether these constitutional commissions and the principle of separation is working.
Is the principle of separation and limitation of powers working as envisaged in the constitution? We could look at the mandates of key institutions to answer this question.
The Kenya National Human Rights and Equality Commission is a constitutional commission with a mandate to further the application and protection of human rights in the country. In other words, the Commission is supposed to watchdog other arms of government, particularly the ones that deal with the administration of justice, law and order. However, the commission’s efficacy at highlighting key issues of rights abuses has been into question. At the moment, issues of human rights have been brought to the fore by the non-state civil society. The commission has been conspicuous in its inaction; it has largely remained mum in the face of growing human rights abuses in various parts of Kenya by the police in Lamu, the unconstitutional raids on mosques in Mombasa and even crackdowns by sub-national units like the counties. A study conducted by the Independent Medico-Legal Unit (IMLU) has documented widespread torture by city council askaris on small traders in Nairobi, yet the Kenya Human Rights and Constitutional Commission has failed to become a moralizing force calling for broader application of human rights in the country.
Another commission that has failed and failed spectacularly at protecting the public interest is the Salaries and Remuneration Commission (SRC). The SRC has the mandate to review the salaries and remunerations of key state officers. By so doing, the Commission meets the goals of ensuring that net expenditure on public wages is sustainable and within the frameworks of good fiscal governance. The SRC has failed at meeting this goal, institutional failure on its part has seen Members of Parliament, Members of County Assembly and other trade unions clamor for higher wages and getting them, this, in essence, going against the principles of sound public finance management. In light of these institutional failures, one wonders what the justification of these constitutional commission is.
Constitutional commissions are not the only blameless institutions in this country. Both at the national and county level legislative, executive and judicial institutions have failed, leaving the maxim of separation of powers jeopardized. The paralysis that has been witnessed in some several counties is a testament to the withering doctrine of separation of powers. In Makueni, for example, the County Assembly has made the county ungovernable by acting in a manner that overtly usurps the executive powers of the governor and his team. Indeed, legislative oversight has its limits, the respect, and equality of all arms of government is an important feature in our constitution.
Although the constitution is as elaborate as a document could be, the lack of institutionalization of the rule of law has been the detriment of separation of powers; power-hungry institutions want to have more power for institutional self-benefit and individual benefits too. The failure of separation of powers of powers is no more a failure of law than it is a function of the moral corruption of the officers who know too well what the constitutional limits of their mandates are but choose to act otherwise.