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Towards Effective Commissions of Inquiry in Kenya

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Towards Effective Commissions of Inquiry in Kenya TOWARDS EFFECTIVE COMMISSIONS OF INQUIRY IN KENYA: A REVIEW OF THE COMMISSIONS OF INQUIRY ACT IN LIGHT OF THE CONSTITUTION OF KENYA 2010 UNIVERSITY OF NAIROBI KAGURU JOSEPH MACHARIA G62/8456/2017 A Research Project submitted to the University of Nairobi Law School in partial fulfilment of the requirements for the Master of Laws (LL.M) Degree Program. September 2018 1 DECLARATION I, KAGURU JOSEPH MACHARIA, declare that this is my original work and that the same has not been presented to any institution of higher learning for the award of a diploma, degree or post-graduate qualifications. Signature…………………………………………………………. Date…………………………. KAGURU JOSEPH MACHARIA This project has been presented for examination with my authority as the university supervisor. DR. NKATHA KABIRA Signature…………………………………………………………… Date………………………. ii DEDICATION I dedicate this work to my mother; a soft-spoken woman with excellent persuasion skills. From her, I have learnt how to listen, argue calmly, assertively and above all to win fairly. It has always worked in this profession except that I am often mistaken for being timid. iii ACKNOWLEDGMENTS I am most grateful to Mwene Nyaga for good health, grace and unconditional providence. My special thanks go to my supervisor, Dr. Nkatha Kabira for her guidance in completing this project. Here is a great teacher, with a great passion for her work and success of her students. I remain most grateful to the University of Nairobi, Board of Post Graduate Studies for financing my studies. I shall forever remain grateful. I would like to extend my appreciation to the former Dean University of Nairobi, School of Law Prof. Patricia Kameri Mbote, for giving the opportunity to work as her graduate assistant, constant reminders that I need a global thinking. In equal measure, I am grateful to Mr. Tirimba Machogu, Chairperson, School of Law Examination Department for his encouragement, contribution and timeless interventions in difficult times. It would be discourteous to forget Frankline Bett for the company late in the nights to see me finish this work. To Dennis Kimutai, thank you for ensuring I got to Parklands whenever I had a meeting with the supervisor and to Njuguna Mungai and James Nzula, the hustle has been real. To Diana Muthoni, your best wishes kept me going and to the beautiful Nthara‟s daughter, Pauline Wawira Kariuki, I am grateful for your time. To my parents and siblings for their unconditional support, I shall forever be grateful. Finally, should anyone open an inquiry into revealing the many other forces behind this work, I admit in advance that for want of space, I have named only a few. In the end, any error in this work is all mine, the above-mentioned persons did their part. iv LIST OF CASES Biwott Kiprono v In the Matter of the Report by the Judicial Commission of Inquiry into Tribal Clashes in Kenya [2002] eKLR Canada (Attorney General) v Canada (Commission of Inquiry on the Blood System) [1997] 3 S.C.R. 440, 151 D.L.R Eric Cheruiyot Kotut v S.E.O. Bosire & 2 Others [2008] eKLR In the Matter of an Application by David Wright for Judicial Review of a Decision of the Secretary of State for Northern Ireland [2006] NIQB 90 In the matter of the report by Judicial Commission of Inquiry into Tribunal Clashes in Kenya H. C. Misc. Appl No. 1269 of 2002 Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR James Gacheru Kariuki & 22 others v Kiambu County Assembly & 3 others [2017] John Jackson Mwalulu & 8 others v Judicial Commission of Inquiry into the Goldenberg Affairs & 3 Others [2004] eKLR Johnson Evan Gicheru v Andrew Morton & another [2005] eKLR Joyce Nelly Ochogo Okal vs Attorney General & 2 others [2013] eKLR Kennedy v The Charity Commission [2014] UKSC 20 v Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and another [2015] UKSC 69 Minister of Police & 6 Others v Premier of Western Cape & 8 Others CCT 13/13 [2013] ZACC 33 Moraa Gesicho v Attorney General [2012] eKLR Mureithi v Attorney General& 4 others KLR (E & L) 707 R v Attorney General ex -parte BW 1 [2002] 1 KLR 668 Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR Republic v Attorney-General Ex Parte Biwott Kiprono [2002] eKLR Republic v County Government of Kiambu Ex parte Robert Gakuru & another [2016] eKLR Republic v Judicial Commission of Inquiry into The Goldenberg Affair & 2 Others Ex-Parte George Saitoti [2006] eKLR Republic v Kenya Vision 2030 Delivery Board & another Ex-parte Eng Judah Abekah [2015] eKLR Republic v Judicial Commission of Inquiry into the Goldenberg Affair & 2 Others Ex-Parte George Saitoti [2006] eKLR Speaker of the Senate & another v Attorney-General & 4 others [2013] eKLR Stephen Mwai Gachiengo & another v Republic [2000] eKLR vi The Queen v Secretary of State for the Home Department [2014] EWHC 194 Wilfred Karuga Koinange vs Commission of Inquiry into Golden Berg Commission [2006] eKLR vii LIST OF STATUTES Commissions of Inquiry Act Chapter 102 Laws of Kenya Commissions of Inquiry Ordinance No. 28 of 1912 County Government Act, No. 17 of 2012 Crown Lands (Amendment) Ordinance, No. 23 of 1938 Fair Administrative Action Act, No. 4 of 2015 Inquiries Act 2005 Chapter 12, Laws of United Kingdom Inquiries Act, R.S.C. 1985, Laws of Canada Law Reform Act Chapter 26 Laws of Kenya Leadership and Integrity Act, No. 19 of 2012 Local Government (Municipalities) Ordinance No. 16 of 1928 National Services Coroners Act No. 18 of 2017 Native Lands Trust (Amendment) Ordinance, No. 23 of 1934 Native Lands Trust Ordinance, No. 24 1938 Penal Code Chapter 63 Laws of Kenya Public Inquiries Act, S.O. 2009 Laws of Canada Public Officer Ethics Act, 2003 Revised Edition of Laws, 1921, No 30 of 192 viii The Statute Law (Miscellaneous Amendments) Act 1966 No. 21 of 1966 Tribunals of Inquiry (Evidence) Act 1921 ix INTERNATIONAL TREATIES African Charter on Human and People‟s Right, 1982 Treaty No. 26363 East Africa Community Treaty, EAC XIV 1999 International Covenant on Civil and Political Rights, 1966 Treaty No. 14668 International Convention on Economic, Social and Cultural Rights Treaty No. 14531 Universal Declaration of Human Rights, 217A (III) 1948, UN General Assembly x LIST OF ABBREVIATIONS AfriCOG Africa Centre for Open Governance BBC British Broadcasting Corporation CBK Central Bank of Kenya CIs Commissions of Inquiry CKRC Constitution of Kenya Review Commission ICCPR International Covenant on Civil and Political Rights, 1966 Treaty No.14668 ICESCR International Convention on Economic, Social and Cultural Rights, 1966 Treaty No. 14531 KADU Kenya African Democratic Union KANU Kenya African National Union KNHRC Kenya National Human Rights Commission LegCo Legislative Council NARC National Rainbow Coalition ODM Orange Democratic Movement PNU Party of National Unity SDGs Sustainable Development Goals ToRs- Terms of Reference xi UN United Nations UDHR Universal Declaration of Human Rights 217A (III) 1948, UN General Assembly xii ABSTRACT Although the Constitution of Kenya 2010 (“Constitution”) sought to overhaul the governance structures in Kenya, the Commissions of Inquiry Act, 1962 has remained unreviewed reflecting the old constitutional order and greatly contradicting the spirit and letter of the Constitution. This creates a challenge to the utilisation of inquiries in Kenya. The primary objective of this research is to examine the incongruencies between the Commissions of Inquiries Act and the Constitution aiming at providing recommendations for review of the Act to align it to the Constitution and in the review process adopt best practices on the structuring of CIs from the United Kingdom. The study argues that the Commissions of Inquiry Act is inconsistent with constitutional provisions on devolution, public participation, independent commissions and offices, national values and principles, affirmative action and leadership and integrity principles. It also argues that Kenya can learn several lessons from the United Kingdom‟s inquiry as it contains provisions that allow the use of inquiries in devolved units, guarantee objective and independent inquiries with significant accountability and transparency mechanisms. The study demonstrates these arguments by utilizing historical, comparative and doctrinal research methodologies. This study reveals that the Commissions of Inquiry Act contradicts the constitutional provisions on devolution, independence of constitutional commissions and independent offices, national values, and principles of governance and leadership and integrity provisions. It also demonstrates that Kenya can learn from the UK system of the structuring of inquiries including devolution, independence of the inquiries, purposeful formation and accountability and transparency mechanisms. The study concludes that there is a need to rethink, review and ultimately align the Act with the Constitution; fill the loopholes previously misused and in the end make CIs true institutions of accountability and transparency xiii Contents DECLARATION................................................................................................................................... ii DEDICATION...................................................................................................................................... iii ACKNOWLEDGMENTS ..................................................................................................................
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