Created: Tuesday, 22 November 2016
Some Random Examples
The following examples illustrate the great variation and differences in Kenyan Tribunals.
(i) The Teachers Service Appeal Tribunal
This Tribunal is set up under the Teachers Service Commission Act to hear appeals from persons denied registration as teachers or deregistered from the register of teachers by the Teachers Service Commission. It is made up a Chairperson and between 2 and 4 other members . All are appointed by the Minister without any consultation save for only one member who must be a registered teacher appointed in consultation with the organisation representing teachers.
The secretary is a public officer appointed by the Minister. The Minister also enjoys the power to “ appoint such other public officers to act as staff of the Tribunal as he may consider necessary” . The Tribunal has an assessor who is an advocate of not less than 5 years standing, appointed by the Tribunal with the approval of the Minister. The term of office is determined by the Minister but should not exceed three years, although it is renewable. The Minister determines the suitability of a member to continue in office and is empowered to declared the office vacant
The rules regulating the practice and procedure of the Tribunal are made by the Minister . Its proceedings are heard in private and an appellant before the Tribunal may only be represented by an Advocate with the leave of the Tribunal . Its decisions are final and not subject to appeal .
A casual examination of this Tribunal raises serious doubts about its independence, openness and fairness. The Minister assumes over it such prominent powers that it operates more like a government department rather than an independent adjudicatory mechanism. For a body whose decisions are final, it is difficult to see why representation by an advocate should be at the discretion of the Tribunal or more importantly why its proceedings must be held in camera. It is difficult to hold that such a Tribunal, purely from the way it is constituted fulfils the fundamental principles of openness, fairness and impartiality.
(ii) The Radiation Protection Board
This Tribunal is set up under the Radiation Protection Act . Its functions are regulatory and advisory. More importantly, it also licenses dealers in irradiating devices or radioactive material . It is made up of a maximum of ten members. The chair is appointed by the Minister without any consultation or any stipulated qualifications. Four members are civil servants appointed by the Minister on the nomination of other ministries. One member is appointed by the Minister on nomination by the National Council for Science and Technology and a maximum of two members are appointed by the Minister on account of their special knowledge in the safe handling of radiation sources. Two others, the Director of Medical services and the Chief Radiation Protection Officer are members by virtue of their offices in the civil service .
Decisions of the Board refusing, suspending or cancelling grant or renewal of licences are appealable to the Minister within 30 days and his decision is final . The Board is empowered to regulate its own procedure and no regulations have been made on the right to be heard before cancellation or suspension of the licence, the nature of the hearing and the right to representation by counsel.
Again, in this Board the overwhelming influence of the Minister is too plain to emphasise. He virtually appoints all the members of the Board, the great majority of whom are civil servants and hence an integral part of the government administration. The Minister’s influence over the Board is completed when he has to hear appeals from decision of his appointees.
(iii) Value Added Tax Appeals Tribunal
S. 32(1) of the Value Added Tax Act empowers Minister, by order published in the gazette to appoint an Appeals Tribunal for any area for purposes of hearing appeals from decisions of the Commissioner of Value Added Tax. The Tribunal is made up of a chairperson and not less than two and not more than five other members all appointed by the Minister. They hold office “for such period and upon such terms and conditions as the Minister may determine” . The Act does not stipulate their qualifications.
The Act specifically confers upon the Tribunal the powers of a subordinate Court to summon witnesses, to take evidence upon oath or affirmation and to call for production of documents. If it deems fit, it may take affidavit evidence and administer interrogatories and may call for evidence which would otherwise be inadmissible in law. Parties have an express right to legal representation and the Tribunal is empowered to award costs in proceedings before it. There is a right of appeal to the High Court within 14 days of notification of the tribunal’s decision.
Whilst in this Tribunal the influence of the Minister in appointment of the members is clear, nevertheless this is mitigated by the express recognition the right to legal representation and a right of appeal to the High Court, which is not limited to questions of law only as is the case in some other Tribunals. Whilst the Tribunal enjoys powers akin to those of a Court of law, it is surprising that there is no requirement that any of its members should have legal knowledge.
(iv) Transport Licensing Appeals Tribunal
Created by the Transport Licensing Act , this Tribunal hears appeals from Transport Licensing Boards mandated to license motor vehicles and ships for hire or reward, trade or business or carriage of goods and passengers. It is made up of the chairperson and four other members. The chair is appointed by the President whilst the other members are appointed by the Minister . The members hold office “for such term and under such conditions as the Minister may determine .
An appeal has to be filed within 21 days from the date of the decision appealed against. The right of parties to be represented by advocates is expressly guaranteed and the decision of the Tribunal is final and conclusive .
(v) District Road Boards
These bodies are created by the Public Roads and Roads of Access Act to hear applications for construction of roads of access and to consider cancellation or alteration of roads of access. The Board is made up of five members appointed by the Minister for a term not exceeding two years renewable. It uses employees of the civil service to discharge its duties. Appeals by aggrieved parties are heard by a Subordinate Court of 1st Class sitting with two assessors. The Act is silent on the qualification of members of the Board or the right to legal representation before it.
(vi) Tourism Appeals Board
This Board is set up under the Tourist Industry Licensing Act to hear appeals by parties whose applications for licenses are refused or whose licenses are cancelled or varied. It is made up of three members, the Permanent Secretary of the Ministry as the chairperson and two other members appointed by the Minister one of them having knowledge of the tourism industry. An aggrieved party has 14 days from the date of the decision to file a written statement of appeal. The Board considers and determines the appeal without hearing any of the parties , although it may call either party or witnesses if it considers it necessary.
Under this statute, the licensing officer responsible for issuance of licences is appointed by the Minister and his decision is appealable to a Board composed exclusively of the Minister’s appointees. Of greater concern is the value of an appeal where as a general rule the tribunal is required not to hear any of the parties.
(vii) Agricultural Appeals Tribunal
This Tribunal is constituted slightly differently from the others and illustrates an attempt to standardise appeals from various Boards. It set up under the Agriculture Act to hear appeals under that Act as well as from the Cotton Board of Kenya , the Kenya Dairy Board , the Pyrethrum Board of Kenya , the Coffee Board of Kenya , Tea Board of Kenya , the National Irrigation Board and the Pig Industry Board . The Tribunal is made up of three members, a chairman appointed by the Chief Justice, being of an Advocate of not less than seven years standing and two members with knowledge or experience in agriculture appointed by the Minister. Before assuming their offices the members are supposed to subscribe to an oath for due execution of office. Points of law are pronounced upon exclusively by the chairman who may state a case on a question of law for the opinion of the High Court. Otherwise the determination of the Tribunal is final and conclusive.
The Chairman with the approval of the Minister makes the rules of the Tribunal. In its proceedings the Tribunal is not bound by any rule of law on evidence save the rules made under the foregoing provision. Proceedings of the Tribunal take place in public.
For unfathomable reasons, appeals, where allowed under other statutes dealing with agricultural issues do not lie to the Agriculture Appeals Tribunal but to other separate Tribunals. Examples include appeals under the Seed Plants Varieties Act , Canning Crops Act , National cereals and Produce Board Act , the Sisal Industry Act and the Sugar Act .
(viii) The Auctioneers Licensing Board
This Tribunal is set up by the Auctioneers Act and is charged with exercising general supervision and control of the business and practice of auctioneers. In particular the Tribunal is responsible for licensing and disciplining auctioneers. Apart from its members being appointed differently from other Tribunals, it has a very large membership – seventeen - emphasising the great variations in Tribunals in Kenya. The majority of the members are appointed by the Chief Justice with the Minister playing no role at all. The Tribunal is made up of a chairperson appointed by the Chief Justice from among persons qualified for appointment as judge of the High Court or Court of Appeal, a Chief Magistrate also appointed by the Chief Justice, one representative of each of the eight provinces appointed by the Chief Justice, the Permanent Secretary responsible for provincial administration, two advocates of at least ten years standing nominated by the Law Society of Kenya, two auctioneers of not less than five years standing nominated by the National Association of Auctioneers and Court Brokers, one nominee of the National Chamber of Commerce and Industry and one nominee of the Kenya Bankers Association . The secretary is a public officer also appointed by the Chief Justice .
The rules of procedure for the Tribunal are made by the Chief Justice . The Tribunals’ proceedings take place in public . The Act is silent on the right to legal representation but the Tribunal is supposed to maintain a record of its proceedings. A party aggrieved by a decision of the Tribunal has a right of appeal to the High Court within 30 days of notification of the decision. The decision of the High court is final.