The Commission on Administrative Justice Bill, 2011

Human rights can be defined as the fundamental rights which the humans have by the fact of being human, and which are neither created nor abrogated by any government. Human rights are the rights and freedoms of all human beings. They are fundamental and universal. Human rights consist of civil and political rights as well as economic, social and cultural rights.
Human rights attach to all persons equally, by virtue of their humanity, irrespective of race, nationality, or membership of any particular social group. They specify the minimum conditions for human dignity and a tolerable life. Human rights are those which are inherent to all human beings whatever be the nationality, place of residence, sex, national or ethnic origin, color, religion, language, or status in the society. Human rights encompass a wide variety of rights. Human rights are universal and moral. All individuals entitled to these rights without any discrimination on any ground. All these rights are interdependent, inter-related, and indivisible.
Human rights are important to the stability and development of all the countries around the world. Great emphasis has been placed on international conventions and their implementation in order to ensure obedience to a universal standard of acceptability. With the advent of globalization and the introduction of new technology, these principles gain importance in protecting human beings from the ill-effects of change. However the efficacy of the mechanisms in place today has been questioned in the light of blatant human rights violations and disregard for basic human dignity in nearly all countries in one or more forms. In many cases, those who are to blame cannot be brought to book because of political considerations, power equations etc. When such violations are allowed to go unchecked, they often increase in frequency and intensity usually because perpetrators feel that they enjoy immunity from punishment.
It is for this reason that institutions such as Human Rights Commissions are put in place to ensure that there is justice to all and to curtail the frequency and the intensity of violations of the human rights against the vulnerable in the society.

Having read the bill one wonders whether it aims to create the office of a Human Rights Commission or whether the bill in effect creates the office of an ombudsman This bill, in my opinion does not conform to the rules of natural justice with which a commission on human rights belong. To begin with, it is the name Kenya National Commission on Human Rights that puts the commission at per with the civilians on the ground. The civilians are more familiar with the term Human Rights Commission as a protective agency. The term ‘administrative’ in Kenya has more often than not been associated with violence, use of force and government owned. The terms Administrative Police, the city council askaris, the attorney general’s office all of which are ‘Administrative offices’ have been in the lime light for very negative reasons. It is for this reason that I do suggest that the name ‘Kenya National Commission on Human Rights’ should be retained.

The second aspect would be on the establishment of the commission. Whereas it is important that the mandate of the commission be constitutionally recognized and whereas it is important to have the mandate of the commission laid down, it is also important that the government trades carefully and stay clear of stepping on the commission’s feet. For a human rights commission to function properly, its independence from government and other possible influential powers is of utmost importance. It is the independence of the commission that creates a sense of security among the ordinary civilians.

It is therefore my opinion that the government should steer clear off the nomination of members of the commission. Further that the commission is best suited to determine for itself the qualification of the commissioners and the staff to the commission.

In particular I am against Article 11 of the Bill which will in effect politicize the Commission and its mandate.  Article 11 (2) of the Bill provides that a selection panel shall be convened from the office of the President, office of the Prime Minister, Ministry responsible for matters relating to Justice, Public Service Commission, the Association of Professional  Societies in East Africa, the Kenya Private Sector Alliance and the National Council for Persons with Disabilities. If the whole selection process of the Chief Justice, the DPP, Controller of budget and the Attorney general is any thing to go buy, then there is not much left to say about letting a human rights commission be marred by politics. The result would ultimately be lost trust in the commission by the civilians.

Further I believe that the powers of the commission should not be curtailed in any way whatsoever. Article 30 of the Bill purports to limit the jurisdiction of the Commission as regards proceedings or a decision of the cabinet or a committee of the cabinet, criminal offence, matter pending before any court or judicial tribunal among others. In my opinion these areas lie at the core of violations of Human Rights. If the Commission is limited as to its investigations in these areas the commission will be as good as non functional and will only serve as a government rubber stamp. Indeed it is coming out that, atrocities such as the Wagalla massacre were planned and orchestrated within the realm of the then cabinet(s).  No administrative decision should be immune from the investigative eyes of the Human Rights Commission.

Having said the above I do support the funding of the Human Rights Commission by the government while at the same time ensuring the independence of the commission to enable the efficient running of the commission. In addition the academic qualifications and the requirements of integrity laid down are also in order.

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