The need for proper leadership to guide the Kenya National Commission on Human Rights in Promoting and Protecting Human Rights in Kenya

Author: Francis Khayundi
PhD candidate, Rhodes University, South Africa

The advent of the new 2010 Kenyan Constitution  brought with it a promise of inclusive human rights enjoyment by making provision for socio-economic rights in Article 43. The entrenchment of the Kenya National Human Rights Commission (KNCHR) as an independent constitutional body, specifically tasked with the promotion and protection of human rights in Kenya, in terms of Article 59(1), further strengthened this development and promise. The KNCHR’s legal mandate, powers and the selection of commissioners is governed by the KNCHR Act of 2011.

Realising the importance of having an institution that could independently work towards the promotion and protection of human rights in Kenya, the drafters of the Constitution opted to include the KNCHR in the final draft, with a mandate that was whittled down from what was initially proposed. Through the Act, the KNCHR was established as a successor institution to the one initially anticipated in Article 59(1) of the Constitution. The KNCHR is a National Human Rights Institution (NHRI), an institution formed by either a constitutional provision or legislative text to specifically promote and protect human rights. There are quite a number of similar NHRIs formed across the globe. NHRIs are non-judicial mechanisms that complement other arms of government in the fulfilment of human rights within a state. They are also an indication of a state’s commitment to use all appropriate means to realise human rights. The establishment of NHRIs is guided by the Principles Relating to the Status of National Institutions (Paris Principles) which, at a minimum, require that such an institution be independent (financially, operationally and legally autonomous); have a broad mandate; have a diverse membership; and given enough room to carry out their functions.

This article focuses on one of the guiding principles that require NHRIs to have pluralist representation within its ranks. Accordingly, it is advisable that the leadership of such institutions be made up of a diverse group of individuals who are experts in their respective fields and represent different interests within the state. This requirement is reflected in Article 9 read with Article 10 of the Act. Further, the Act requires that the Commission have five adequately qualified members, with one of them being the chairperson. The appointment procedure of these members is clearly set out Article 11 of the Act, which oversees a speedy selection process to enable the KNCHR to function accordingly. Thus, in terms of Article 11 (1):

“[w]henever there is a vacancy in the Commission the President shall, within fourteen days of the occurrence of the vacancy, convene a selection panel for the purpose of selecting suitable candidates for appointment as the chairperson or member of the Commission.”

The situation at the KNCHR is such that there is only one serving commissioner after the expiry of the terms of previous members. Consequently, the same commissioner is also acting as the chairperson of the Commission and effectively performing the functions of five people. The practice, with the appointment process, has been such that the terms of the past commissioners have been staggered to allow for continuity. Understandably, some of the former commissioners’ terms ended shortly before or after the 2013 elections, and the expectation would be that the selection of new commissioners is something the present government would embark on to ensure the commission is run accordingly. However, in the wake of a new government, this has not been the case. Several advertisements have been placed in the Kenya Gazette and to some extend candidates have been shortlisted, but no appointment has been made as envisioned by the Act.

The argument here is that the Commission, being run by a single member, falls foul of the Paris Principles, the Act and, by extension, the Constitution. Furthermore, it reeks of non-commitment towards the effective functioning of institutions that promote and protect human rights. Interestingly, the terms of other members of commissions such as the National Cohesion and Integration Commission established in terms of the Constitution, have expired with no word from parliament or the executive. Moreover, if continuity is to be maintained, there is an urgent need to set the recruitment and selection process of new commissioners as soon as possible given that the terms of the current serving commissioners expires in January 2014. The need for pluralism is important as it promotes independence, offers critical guidance to the staff of the commission and results in the better fulfilment of the KNCHR mandate of promoting human rights and developing a human rights culture in Kenya.

About the Author:
Francis Khayundi holds a Bachelor of Laws (LLB) from the University of Fort Hare and a Master’s in Law (LLM) from Rhodes University (South Africa). Khayundi is currently a PhD candidate at Rhodes University. His research interests are international human rights and climate change. He has previously worked as a Lecturer (part-time) in the Faculty of Law, Rhodes University.