PHOTO | FILE Kenya National Commission on Human Rights CEO Patricia Nyaundi at a past event.
NATION MEDIA GROUP
The term of office for Ms Anne Ngugi,
the sole remaining commissioner of the Kenya National Commission on
Human Rights, came to an end last week, leaving the commission with a
staff but no leadership.
The terms of office of the
four other commissioners, including the chair, had ended at different
times last year, and the process of filling the resulting vacancies has
been beset by a number of difficulties.
The effect of
the prevailing situation is that KNCHR, which has been operating far
below its establishment, is now legally unable to discharge any duties.
The
sister commission, the National Gender and Equality Commission, also
has two vacancies in the five positions in the commission.
There
is also a problem with the National Cohesion and Integration
Commission, the tenure of whose members ended in August 2013, with no
replacements forthcoming.
The overall picture is that
the independent human rights commissions established under the authority
of the Constitution are in a state of disarray, and in no position to
exercise their mandates.
By retaining a staff, these
commissions have continued to draw on public resources while they are
not in a position to render service to the public.
ABOLISHED MINISTRY
Matters
have been compounded by the abolition of the Ministry of Justice as
part of the Jubilee leadership’s downsizing of government last year,
which took away the political leadership that this ministry had provided
over these commissions.
Problems of various kinds
surround the institutional arrangements for human rights protection in
Kenya, and help to explain the difficulties that these commissions are
facing at the moment.
First, MPs, in whose hands the
approval of commissioners lies, have had an uneasy relationship
particularly with the National Human Rights Commission, and are
reluctant to facilitate the re-constitution of the commissions.
Secondly,
there is a legitimate question surrounding the institutional
arrangements which has contributed to the reluctance to fill the
vacancies.
The constitutional mandate for the creation
of the Kenya National Human Rights and Equality Commission also
stipulates that Parliament can restructure the commission into several
commissions, each with a separate aspect of the human rights agenda.
When
Parliament convened to give effect to this provision under the Kibaki
government, it ended up with three commissions, specifically the
National Human Rights Commission, the Commission on Administrative
Justice and, the National Gender and Equality Commission. Within the
human rights sector, the decision to split the commission into three was
strongly contested.
While these commissions have been
accepted in the manner in which they were created, the principled
objection to multiple commissions, which was based on a perceived
overlap of mandate, has not been overcome.
In
retrospect, and in the context of the very large number of other
commissions and special bodies created by the Constitution, some of
which have demonstrated little benefit for the public, there is
hesitancy to fill existing vacancies.
It is possible
that the decision to set up three commissions, where only one could have
been sufficient, may need to be re-opened at some time in future.
Thirdly, the process of appointing members to fill the vacancies has been undermined by self-serving political inertia.
The
filling of a number of these positions, which had gone through an
interview process and even presented to the President for transmission
to Parliament, was annulled following arguments that it had been
instituted under the Kibaki presidency and that the new President had
the right to begin the process afresh.
Fourthly, at
different times, a number of legal suits have been presented seeking to
stop the appointment of the commissioners, and one of them is still
pending in court. While the merits of the suits are debatable, these
have had the effect of stalling the appointment process.
Also, the suits have given a reluctant executive the smokescreen it craved to stall the process.
Fifthly,
from the public point of view, performance of some of the commissioners
who have now left office was simply disappointing, leading to the view
that commissions are not necessarily as good as assumed.
To
add to this problem, the polarised nature of the country’s politics, in
which independent commissions have often had to take a position, has
unavoidably alienated sections of the public from the positions taken by
the commissions.
This has produced a situation where the public has little sympathy for these commissions.
Finally,
there exists a measure of duplication to the extent that the ministry
of Justice had a department dealing with national cohesion, while at the
same time the government retained a commission to deal with the same
issues. The department still exists and must surely be rationalised when
all the decisions about the future are made.
The
requirements of the Constitution, and the intentions of the government,
are tied to whether or not the country can succeed in having effective
and functioning independent commissions.
For this
reason, the government needs to provide deliberate and clear leadership
in determining the outstanding questions on the future of these
commissions. May be some of the commissions need to be merged.
The
unaddressed implementation of the report of the Truth Justice and
Reconciliation Commission is also tied to resolving the issues
surrounding these commissions.
Without functioning
independent human rights bodies, Kenya risks a reversal of the
favourable international standing it had attained under the Universal
Periodic Review process instituted by the UN Human Rights Counci
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