The Law governing commissions of inquiry

The Kenyan law provides for the setting up of Commissions of Inquiry under the Commissions of Inquiry Act, Cap 102.

Although it has the power to summon witnesses and admonish those who refuse to appear before it, a Commission of Inquiry does not have the powers to jail or pass sentences on any individual.

Although not all Commissions can necessarily be referred to as "Judicial Commissions of Inquiry", the term, "judicial" has sometimes been used because of the nature of proceedings even though the commissions have no powers of conviction and sentencing as is the case with the courts.

The time taken by a Commission of Inquiry to complete its work may also vary depending on the nature of the matter being handled.

Although set up to probe into an issue, parliamentary teams are not Commissions of Inquiry per se. They are composed of Members of Parliament and basically derive their powers from Parliamentary Standing Orders.

While Commissions of Inquiry present their findings to the President, a parliamentary select committee reports to Parliament.

According to the Act governing the operations of Commission of Inquiry, ‘evidence adversely affecting the reputation of an individual shall not be received unless the commissioner is satisfied of its relevance to the inquiry, and that the person/persons are given prior warning of the general nature of the evidence or when this is not done, a general nature of the evidence to be presented is communicated to the person’.

Under Kenyan Law, the Commissions of Inquiry Act Cap 102 provides for the appointment of commissioners to inquire into and report on matters of a public nature referred to them by the President, to prescribe their powers, privileges and duties, and to provide for other matters relating thereto’.

The President is also allowed - as provided by the Act - to appoint an additional commissioner or commissioners in varying designations such as chairman or deputy chair or appoint a new commissioner in case the sitting one dies or is unwilling to act or is, in the opinion of the President, unsuitable to continue serving as a commissioner.

The Commissions of Inquiry Act also empowers a commission to direct that the public not be admitted to all or a specified part of the proceedings. This may be done for the preservation of order, protection of the person, property or reputation of any witness in the inquiry, or anyone referred to during the proceedings.

Not all commissions or probe teams, however, are appointed to inquire into a matter fall under the Commissions of Inquiry Act.

The education sector has had many probe committees and task forces set up over the years in efforts to improve the education system. Examples of commissions set up in the sector which were governed by the Act, include the first post-independence Kenya Education Commission led by Prof. Simeon Ominde, and the Davy Koech-led Commission of Inquiry into the Education System of Kenya, appointed in 1998.

Ends…