Towards Effective Commissions of Inquiry in Kenya: a Review of the Commissions of Inquiry Act in Light of the Constitution of Kenya 2010 University of Nairobi

Abstract

Although the Constitution of Kenya 2010 (“Constitution”) sought to overhaul the governance structures in Kenya, the Commissions of Inquiry Act, 1962 has remained unreviewed reflecting the old constitutional order and greatly contradicting the spirit and letter of the Constitution. This creates a challenge to the utilisation of inquiries in Kenya. The primary objective of this research is to examine the incongruencies between the Commissions of Inquiries Act and the Constitution aiming at providing recommendations for review of the Act to align it to the Constitution and in the review process adopt best practices on the structuring of CIs from the United Kingdom. The study argues that the Commissions of Inquiry Act is inconsistent with constitutional provisions on devolution, public participation, independent commissions and offices, national values and principles, affirmative action and leadership and integrity principles. It also argues that Kenya can learn several lessons from the United Kingdom‟s inquiry as it contains provisions that allow the use of inquiries in devolved units, guarantee objective and independent inquiries with significant accountability and transparency mechanisms. The study demonstrates these arguments by utilizing historical, comparative and doctrinal research methodologies. This study reveals that the Commissions of Inquiry Act contradicts the constitutional provisions on devolution, independence of constitutional commissions and independent offices, national values, and principles of governance and leadership and integrity provisions. It also demonstrates that Kenya can learn from the UK system of the structuring of inquiries including devolution, independence of the inquiries, purposeful formation and accountability and transparency mechanisms. The study concludes that there is a need to rethink, review and ultimately align the Act with the Constitution; fill the loopholes previously misused and in the end make CIs true institutions of accountability and transparency