Statement on proposed merger of NGEC and KNCHR

The National Gender and Equality Commission (NGEC) is aware of the publication of The Kenya National Commission on Human Rights (Amendment) Bill, 2020 by Honourable Jeremiah Kioni, Chairperson, Constitutional Implementation Oversight Committee (CIOC). The said Bill though published as an amendment to The Kenya National Commission on Human Rights Act. No. 14 of 2011, appears to be meant to repeal the National Gender and Equality Commission Act, No. 15 of 2011. According to the said Amendment Bill, not all the functions of NGEC have been transferred to the proposed new entity to be known as The Kenya National Human Rights and Equality Commission.

The objects and reasons for the Amendment Bill are as follows;

1.  Amendment of the The Kenya National Commission on Human Rights Act. No. 14 of 2011 in order to merge both KNCHR and NGEC to retain the proposed Kenya National Human Rights and Equality Commission (KNHREC) established under Article 59(1) of the Constitution of Kenya 2010;
2. That Article 59(4) of the Constitution empowers Parliament to enact legislation to restructure KNCHR and NGEC;
3. That in 2011, Parliament restructured KNHREC into 3 Commissions namely: The Kenya National Commission on Human Rights (KNCHR), National Gender and Equality Commission (NGEC) and Commission on Administrative Justice (CAJ).
4. That the functions of both KNCHR and NGEC can be merged and be performed by one body, the KNHREC;
5. That the effectiveness of both institutions would be streamlined and this would be cheaper to the taxpayer; and lastly
6. That there is no marked and diametrical differences in functions between the two institutions since gender issues fall within the sphere of Human Rights.

The National Gender and Equality Commission respectably submits as follows in opposition to the Amendment bill and urge members to reject it altogether.

1. It is not in doubt that Article 59(1) of the Constitution of Kenya 2010 establishes the KNHREC. However, and as acknowledged by Hon. Kioni, Article 59 (4) gives Parliament power to restructure KNHREC into two or more separate Commissions—hence NGEC, KNCHR and CAJ.
2.  Of the 3 sister Commissions, the NGEC has the widest and broadest mandate, with a total of 16 functions against 13 for CAJ and 10 for KNCHR. It is noteworthy that whereas the constitutive Acts of KNCHR and CAJ have a provision that Parliament shall review their respective mandates upon expiry of five years (by 2016) with a view to amalgamating or merging them (Section 55 thereof of both Acts), the National Gender and Equality Commission Act does not have such a provision.
3. It has been argued that Article 59(4) only gives Parliament power to restructure KNHREC into 2 or more Commissions but not to amalgamate or merge as suggested by Sections 55 of Kenya National Commission on Human Rights and Commission on Administrative Justice Acts. This is because under Sub-Article (5) (b) and (c) thereof, a successor Commission has the same status and powers as KNHREC and for the avoidance of doubt, a Constitutional Commission within the meaning of Chapter 15 of the Constitution of Kenya 2010 that applies to Constitutional Commissions and Independent Offices. In particular, a successor Commission of KNHREC is, pursuant to Article 249 (2) (a) and (b) are only subject to the Constitution and the law, independent and not subject to direction or control by any person or authority. The NGEC fully concurs with this view.
4.  Being a Commission established pursuant to Article 59 (4), which is within Chapter 4 of the Constitution of Kenya 2010 on the Bill of Rights, to ensure, with the sister commissions, that the Bill of Rights Chapter is fully and effectively implemented, the dissolution of NGEC can only be done through a referendum pursuant to Article 255 (1) (e).
5. One core risk associated with mergers is loss of strategic clarity and focus. There is real danger of losing out on mainstreaming issues of Special Interest Groups in National Development. We therefore respectfully submit that NGEC should be allowed to remain as it is to continue with its oversight mandate on matters of Gender Equality and freedom from Discrimination. The Commission should be strengthened to fully deliver on its very wide and challenging mandate to ensure a just Gender Equal Society where everyone counts and everyone is included.

It is the considered opinion of the National Gender and Equality Commission therefore, that the Kenya National Commission on Human Rights (Amendment) Bill, 2020 if allowed to pass will erase all the gains made in the promotion of gender equality and non-discrimination especially for the vulnerable populations in Kenya.

DR. JOYCE M. MUTINDA (PhD)
CHAIRPERSON