Twentieth and twenty-first century constitutionalism is witnessing a shift in the traditional conception of the principle of separation of powers. From the distinction between the legislature, executive and the judiciary as the three main branches of government, a ‘fourth branch’ appears to be emerging in the form of independent constitutional commissions and independent offices in many contexts not the least of which is Kenya. The South Africa and Zimbabwe Constitutions have provisions for similar powerful institutions.

Chapter 15 of Kenya’s 2010 Constitution establishes 12 such institutions and offices which are autonomous and not subject to direction or control by any person or authority. Among some of the key commissions are the Human Rights and Equality Commission, National Land Commission, Independent Electoral and Boundaries Commission, Commission on Revenue Allocation and Commission for the Implementation of the Constitution. Though not formally considered as a branch of government, one may argue that their tremendous powers in public affairs make them a de facto fourth arm of government. Their entry into Kenya’s constitutional architecture is a reflection of the suspicion Kenyans had with the traditional three arms of government, which were perceived to have been in cahoots to perpetrate atrocities against the citizenry.  In addition, there were scant checks and balances as the Executive dominated all aspects of government. Hence, the need for a ‘fourth branch’ anchored in the Constitution rather than ordinary legislation to reinforce the system of checks and balances among constitutional institutions.

Notwithstanding the apparent euphoria and enthusiasm that has welcomed the advent of these institutions,, their work and interaction with other traditional institutions so far has been a mixed bag. A case in point is the recent altercation between the Salaries and Remuneration Commission (SRC) and the National Assembly over the former’s decision to reduce the salaries of the latter. As the body with the sole constitutional mandate to set and regularly review the remuneration and benefits of state officers, the creation of the SRC was a response to historical abuses by Kenyan MPs who arbitrarily raised their salaries and benefits with little regard to the prevailing social and economic situation in Kenya.  In fact, Kenyan MPs were and remain some of the highest paid legislators in the world notwithstanding the country’s low GDP.

Following the SRC’s action, the National Assembly’s (NA) response was to pass a motion during its first seating to increase Members’ salaries while adopting scaremongering tactics such as threatening to disband the SRC and slash government spending when the latter two denounced their actions as unconstitutional. Although the conflict was eventually resolved following negotiations, which may also be seen as evidence of functioning institutions ready to check and hold each other accountable, such altercations also highlight a number of important challenges for Kenya’s emerging democracy and constitutionalism as well as some of the limits of the 2010 Constitution.

Firstly, further scrutiny of the SRC’s decisions leaves unanswered questions. Why, for instance, did it retain high remuneration packages for members of constitutional commissions and independent offices – including itself – while cutting those of Members of the National Assembly (MNAs)? Further, even if the SRC is promoting a public image of an institution hell-bent on checking the extravagance of the MNAs, the reality is that the institution is not insensitive to the NA’s political leverage over it as the latter retains the authority to scrutinise the commission’s budget, and amend the legislation to reduce its composition or transform it into a part time institution. Unsurprisingly therefore, the SRC does, in fact, bow to the National Assembly when it is in its interest to do so, as it did when it approved unlimited sitting allowances and car grants for MNAs. How or to whom are independent officers such as those sitting on the SRC accountable for such double standards?

Although the Constitution requires all Constitutional Commissions  to send annual reports to the President and Parliament, their removal can be a lengthy and difficult affair as the process involves both Parliament and the executive, who may not always have the same opinion, especially where their interest are directly at stake- as is the case in the MNAs salaries dispute.  In addition, they enjoy security of tenure for a single term of six years and cannot be removed during that period absent serious violation of the Constitution, gross misconduct, physical or mental impairment, incompetence or bankruptcy. Otherwise, decisions of the commissions can only be challenged in court through judicial review proceedings, which can also take time.

A second issue, which perhaps relates directly to the choices made in the 2010 Constitution, is whether it was necessary to have six-year tenure for a Constitutional Commission such as the SRC, especially if one considers that salary reviews are not everyday occurrences. It would seem even the Committee of Experts and the Parliamentary Select Committee on Constitutional Review were divided on this question, as according to sources on the two bodies, the recommendation, which was rejected, was to have a much shorter tenure or an institution that is convened periodically rather than one with a permanent sitting.

Thirdly, the spat has brought to the fore a familiar question that has often been raised before in challenging the role of the judiciary – notably whether unelected independent commissioners and officers, like judges, should be involved in policy making, if one considers the function of salary setting as such. The same question can be raised with respect to the Commission for the Implementation of the Constitution (CIC), which has on many occasions openly opposed government policies, proposed legislation, and attempted to influence the appointment of public and state officers.

However the debate unfolds, the introduction of independent constitutional commissions in the matrix of power within the Kenyan political system is a development that should be welcomed, even if with caution. Traditionally, constitutionalism was concerned with regulation of power between the executive, judiciary and the legislature. Early in the constitutional history of the United States of America, judicial review was instituted to check powers of the Executive and Legislature. Modern day constitutional architecture brings in independent offices and commissions that remodel and seemingly strengthen traditional constitutionalism. At the same time, allowing unelected officials to partake in the realm of policy-making, legislative and executive functions must be balanced by clear measures that guarantee checks and balances, and accountability on these institutions. The question then is how to ensure the emergence and existence of a ‘fourth branch’, elected or otherwise, that is effective but also adequately reined in.