Comments on Appointment System
It can be seen that the methods of appointment are not the same for these various
commissions. For the Electoral Commission and the Human Rights Commission, the
Executive has effective control over the selection of the chairperson. The CSRO’s role
is not the same in each case. It may be preferable to provide, as the Kenyan
Constitution does, for the same method of appointment for the members (including
the chairperson) of all the commissions. There seems no good reason for the
chairperson to be appointed in a different manner from the other members, other
than to ensure Executive control over the appointment.
The involvement of Parliament, through the CSRO, is preferable to the Executive
having effective control over the appointments, but it is also desirable to provide
specifically for the involvement of civic society in the nomination process.
Functions and Powers of Commissions
The current Constitution sets out the functions of the various commissions in fairly
general terms, but leaves the detail of exactly what powers the commissions have to
the various Acts of Parliament dealing with the Commissions.
For example, the functions of the Anti-Corruption Commission are set out in general
terms in the Constitution and then in detail in the Anti-Corruption Commission Act.
The Commission’s powers are not set out in the Constitution at all; the Constitution
merely provides that an Act of Parliament may confer powers on the Commission,
including power –
• to conduct investigations and inquiries on its own initiative or on receipt of
complaints; and
• to require assistance from members of the Police Force and other investigative
agencies of the State; and
• through the Attorney-General, to secure the prosecution of persons guilty of
corruption, theft, misappropriation, abuse of power and other improprieties.
The powers that the Act has given the Commission are set out in the Schedule. The
Commission has no power itself to prosecute persons whom it finds have committed
corrupt acts; it has to make recommendations to the Attorney-General. Given that
the Attorney-General is a political appointee, the Commission could be rendered
ineffective.
By way of contrast, the Independent Commission against Corruption in Hong Kong
has wide powers of arrest and detention in respect of offences listed in the relevant
Ordinance. It can investigate any official, up to and including the Chief Executive of
Hong Kong.
Similarly, the functions of the Media Commission are set out briefly in the
Constitution and then in more detail in the Access to Information and Protection of
Privacy Act.
The enabling Act for the Human Rights Commission was passed only several years
after the Commission was set up. The Act failed to meet international standards for
an independent only national human rights institution and the Commission has not
received the funding necessary for it to function.
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