Dismantling Executive Capture and Restoring Integrity to Chapter 15 Commissions

The Mechanics of Executive Influence

The Constitution was designed to prevent too much power from accumulating in one place. Independent commissions were therefore created to perform specific functions without being directed or controlled by the Executive.

On paper, the safeguards are clear. In practice, however, the independence of these institutions depends on how their commissioners are appointed, how their budgets are administered and how Parliament scrutinises their nominees.

This is where the problem begins.

A. The Appointment Problem

An institution cannot be truly independent if the process used to appoint its leadership creates strong political dependence.

The Constitution provides for independent commissions, while individual laws establish the procedures for identifying and selecting commissioners. These processes involve selection panels, public participation, shortlisting and parliamentary approval.

The concern is not necessarily that every person appointed through this system is politically compromised. The bigger concern is whether the system gives citizens enough confidence that appointments are based on merit, integrity, competence and independence rather than political loyalty.

Where the Executive has significant influence over the formation of a selection panel, questions will naturally arise about the independence of the final shortlist. This is particularly important for institutions whose mandate includes scrutinising government conduct.

A referee should not be placed in a position where the teams being monitored have excessive influence over who becomes the referee.

The answer is not to remove the Executive completely from every constitutional appointment. Rather, Parliament should examine whether the current arrangements provide sufficient checks and whether professional bodies, civil society and other independent actors have an appropriate role in the process.

The public should also be able to see clearly how candidates are shortlisted and why a particular candidate is considered suitable for a constitutional office.

B.The Question of Financial Independence

Independence is not only about who appoints commissioners. It is also about whether an institution has the resources to perform its work.

Article 249 of the Constitution requires Parliament to allocate adequate funds to enable commissions to perform their functions. Yet constitutional institutions operate within the wider public finance system, where budgeting, cash releases and expenditure controls are part of government financial management.

This creates an important question: what happens when an institution has a strong constitutional mandate but does not have the resources required to exercise it effectively?

An anti-corruption agency, public service oversight body or other commission may be legally independent, but investigations, recruitment, public education, field operations and other activities require money.

Financial controls are necessary to protect public funds. At the same time, those controls should not become a means through which an independent institution is indirectly weakened.

Parliament therefore needs to examine how funding for constitutional commissions is released and whether additional safeguards are necessary to protect them from unnecessary delays or financial pressure.

The principle should be straightforward: financial accountability and institutional independence must exist together.

C. Parliamentary Vetting Must Mean More Than Approval

Parliament has an important responsibility in the appointment of senior public officials. Vetting provides an opportunity for elected representatives to examine a nominee's qualifications, experience, integrity and suitability before an appointment is approved.

The process should therefore be more than a formal step between nomination and appointment.

Parliamentary committees have the opportunity to examine a nominee's record, question inconsistencies and consider information submitted by members of the public. This is one of the points at which Parliament can provide an important constitutional check.

The concern arises when political party interests become more important than the evidence presented during the vetting process.

Parliamentarians are elected through political parties and therefore political considerations will always exist. The challenge is ensuring that those considerations do not prevent Parliament from carrying out its constitutional responsibility objectively.

A stronger vetting system should place greater emphasis on evidence, qualifications, integrity and the requirements of the Constitution and relevant law.

Public participation should also be meaningful. Citizens who raise credible concerns about a nominee should be given a fair opportunity to have those concerns considered before Parliament makes its decision.

D. Why This Matters to Ordinary Kenyans

These issues may appear to be matters for lawyers, Parliament and constitutional scholars. They are not.

The quality of Kenya's institutions eventually affects ordinary citizens.

A young graduate looking for a government job needs to believe that qualifications and merit matter. A farmer needs confidence that agricultural programmes will be implemented as intended. A patient needs public health funds to reach the facilities where they are needed. A taxpayer needs confidence that public money is being used for its intended purpose.

Strong institutions cannot solve every problem in the country. But weak institutions make it much harder to solve those problems.

That is why the debate about independent commissions should move beyond personalities and individual appointments. Kenya needs to examine whether the systems themselves are strong enough to withstand political pressure, financial pressure and conflicts of interest.

E. A Legislative Reform Agenda

The proposed reform agenda is therefore focused on strengthening the system rather than simply replacing individuals.

First, selection processes should be made more transparent and independent, with clear criteria for appointing members of selection panels and selecting commissioners.

Second, financial safeguards should be strengthened so that constitutional commissions can access the resources approved for them without unnecessary administrative delays, while maintaining proper financial accountability.

Third, parliamentary vetting should become more evidence-based, with committees required to demonstrate how nominees meet the constitutional and statutory requirements of their offices.

Fourth, public participation should be strengthened so that citizens can meaningfully contribute to the appointment process.

Finally, constitutional commissions should be required to maintain strong standards of transparency and public reporting, allowing citizens to assess how effectively these institutions are performing their mandates.

The goal is not to create institutions that are above scrutiny. Independent does not mean unaccountable. The goal is to create institutions that are independent enough to perform their constitutional duties and accountable enough to retain public trust.

As a candidate aspiring to represent Bureti Constituency in Parliament in 2027, Eng. Duncan Kiptoo Korir ("Maunyit") proposes to make institutional reform part of his legislative agenda. The broader objective is to strengthen the systems through which government serves Kenyans, regardless of their political affiliation, region or social standing.