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The Kenya National Commission on Human Rights under the 2010 Constitutional Dispensation

Document Cited authorities 1 Cited in Related
Vincent
Date01 May 2018
DOI10.3366/ajicl.2018.0228
Published date01 May 2018
Pages205-226
Author
INTRODUCTION

The larger role of national human rights institutions (NHRIs) has been to foster the domestic promotion and protection of human rights. However, over the years we have witnessed the expansion of the mandate of NHRIs to include their participation at the international and regional levels. It has been argued elsewhere that NHRIs are an important actor at the regional level and as such their participation, for example during the session of the African Commission on Human and Peoples' Rights (African Commission), should be more nuanced.1 Despite this increased acknowledgment of their importance, one can still easily identify with the frustration of NHRIs with regards to their efforts to promote and protect human rights.

NHRIs have taken various forms in different countries. They range from the offices of ombudspersons and national human rights institutions or a combination of the two to corruption commissions, equality commissions and other specialist commissions.2 The UN Principles Relating to the Status of National Human Rights Institutions (Paris Principles) refer to such institutions as NHRIs. More than forty African Countries have established such institutions presumably in accordance with the Paris Principles.3 The mandate and independence of NHRIs differs from one institution to another and to a larger extent depend on whether a body was established by an Act of Parliament or was founded on a constitutional basis.4

The competence and responsibilities of national human rights institutions are spelt out by the Paris Principles, which principles have since become ‘the most authoritative international statement on the role and structure of NHRIs’.5 According to the Paris Principles, a national human rights institution shall be vested with the competence to promote and protect human rights.6 Accordingly, a national human rights institution should be given a broad mandate, clearly set out in a constitutional or legislative text, specifying its composition and sphere of competence.7

The Paris Principles set out seven areas of ‘competencies and responsibilities’ of national human rights institutions. Paragraph 3(a) of the Paris Principles provides that a national human rights institution should be vested with the responsibility to advise the government on matters and questions concerning the promotion and protection of human rights.8 Further, NHRIs are mandated to encourage states to ratify international treaties,9 and to pass legislation that is in conformity with the states' relevant international human rights norms.10 They are mandated to offer advice on the conformity or otherwise of existing or proposed legislation with human rights principles enshrined in international human rights instruments to which the state is a party. Most importantly, a national human rights institution ‘shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures’.11

The Paris Principles mandate NHRIs to take up ‘any situation of violation of human rights which it decides to take up’.12 They are to participate in the state reporting process by way of submission of shadow reports.13 NHRIs are expected to cooperate with the United Nations (UN) and other agencies within the UN system, the regional institutions and the national institutions of other countries which are competent in the areas of the protection and promotion of human rights.14

Most NHRIs are quasi-judicial bodies with the mandate to examine complaints alleging infringements of applicable international human rights instruments by individuals, associations, trade unions and other representatives.15 These quasi-judicial NHRIs are supposed to help states with the formulation of educational and information programmes aimed at fostering awareness and better understanding of human rights norms through education and all press organs.16

As mentioned above, the general mandate of NHRIs is to protect and promote human rights norms and values. Despite the controversy surrounding their true nature – that is whether they are state or non-state actors17 – they are nonetheless state institutions or governmental machinery with the responsibility to hold the very same governments accountable.18 NHRIs are partners in the human rights struggle and may as well have carved out a place in the international human rights arena that serves as a constant reminder to states that they are being watched. NHRIs are now regarded as a bridge providing a practical link between the governing and the governed,19 international human rights standards and their implementation at the national level.20

Article 59 of the Kenyan Constitution is one of the most important provisions of the 2010 Kenyan Constitution. It establishes the Kenya National Human Rights and Equality Commission (KNHREC) pursuant to Article 59. It makes provision for the restructuring of the KNHRE in order to establish institutions necessary for the attainment of justice, the promotion and protection of human rights in Kenya.21 Parliament then passed an enabling Act, the Kenya National Commission on Human Rights Act No. 14 of 2011, reconstituting the KNCHR as one of the three new Article 59 commissions. The other two commissions are the Commission on Administrative Justice (CAJ) and the National Gender and Equality Commission (Equality Commission). Of utmost significance and relevance to this article is the reconstitution of the then Kenya National Commission on Human Rights (KNCHR/Commission).These Article 59 institutions will henceforth be the custodians of human rights in Kenya.

A reading of the Kenyan Constitution reveals that the successor Commission has been endowed with broader powers than its predecessors. This article is an exposition of these powers and their importance to the realisation of human rights. The article looks at the transformation of the Commission and discusses its implications on the promotion and protection of human rights in Kenya. This is done from a normative and institutional perspective with particular emphasis on the extent to which the Principles Relating to the Status of National Institutions for the promotion and protection of human rights (the Paris Principles, 1993) have been complied with. Granted, the KNCHR has done relatively well to promote and protect human rights since its inception. In the face of the challenges that continue to bedevil institutions of similar nature, the Commission managed to maintain its relevance to the human rights agenda in Kenya. This article highlights the role of NHRCs in transitional and transformative justice. It explores the possible complimentary relationship(s) between the Commission and other article 59 commissions for the better enforcement of the bill of rights in Kenya.

 THE PRE-2010 KENYA NATIONAL COMMISSION ON HUMAN RIGHTS

In 2002, the KNCHR was established as an autonomous national human rights institution by the Kenya National Commission on Human Rights Act (No. 9 of 2002).22 It succeeded the Standing Committee on Human Rights (SCHR/Standing Committee) that had been established through a presidential decree in 1996.23 Before the Standing Committee was established, there had been pressure from local human rights organisations, the United Nations and international institutions for countries to form national human rights institutions and several countries had done so between 1993 and 1999.24 Despite the fact that the SCHR lacked autonomy, it was responsible for the establishment of the KNCHR and this was indeed its greatest achievement.25 The SCHR had early in its lifetime recommended to Parliament that it should be granted adequate powers and autonomy. It had prepared a Bill that was submitted to the Attorney General in 1998. It took five years before the Bill was passed into law.26

When Act No. 9 of 2002 was passed, it established an independent statutory agency that was the successor to the SCHR. The Act took effect in March 2003. Politically, at the time the country had witnessed a transition from a single-party state under the Kenya African National Union (KANU) to a multi-party democracy National Rainbow Coalition (NARC) and the national setting at the time has been described as euphoric.27 It was greatly anticipated that the Commission would be able to address the human rights challenges in Kenya.28

The functions of the Commission which were set out under section 16 of the Act may be identified as having been largely investigative in nature. The Commission was allowed to make investigations following complaints on the violation of any human rights as well as to make provision for compensation where necessary.29 The KNCHR was also empowered to visit and assess living conditions in places of detention.30 Its promotional mandate included educating the public on issues relating to human rights with the aim of enhancing the respect for human rights in the country.31 Further to the above, the Commission was mandated to assist with monitoring the implementation of international and regional human rights treaties that Kenya was party to.32 As will be shown later in this article, the fact that the Commission was then mandated to cooperate with other institutions to promote and protect human rights in Kenya is more than significant.33

To effectively undertake its mandate, the Commission had general powers to perform its functions and was not to be subject to the direction or control of any other person or authority.34 This provision clearly articulated the independence of the Commission which was a clear break from how the SCHR had been operating. The SCHR had been established by a presidential decree and had been subject to the direction of the executive arm of government. The Commission had the powers of a court35 to summon people, question them, issue orders in relation to infringements of human rights as well as powers of investigation36 pertaining...

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