The Standing Committee on Human Rights114 originated in response to years of adverse reports by international and national human rights groups on the government's human rights record. While there have been some significant openings since the government of President Daniel arap Moi was forced to concede to a multiparty system in 1991, real progress on democratization and human rights in Kenya remains unaddressed. The government continues to stall on promises of reform that would bring greater democratization. Little or no genuine progress has been achieved in diminishing the absolute power enjoyed by the presidency. A frequently used tactic by the Moi government in deflecting international and national criticism of his human rights record has been to create ad hoc bodies which have no enforcement or remedial powers to look into human rights abuses, such as commissions of inquiry or parliamentary committees. The Standing Committee on Human Rights was another such gesture.

In July 1995, shortly before Kenya's donors were to meet at a Consultative Meeting in Paris to discuss aid to Kenya, President Moi announced that he was establishing a committee to deal with human rights and that prominent lawyers would be chosen to sit on it. The donor meeting coincided with the release of reports documenting human rights violations by two international NGOs, Amnesty International and Human Rights Watch. Initially, the committee was announced as a national body, then changed to a being a ruling party committee, then again announced as a national government body on human rights. The announcement received a mixed reaction from local observers, some welcoming the move, while others seeing it as a public relations move to appease donors.115

The announcement by President Moi was not followed by any enabling statute, which further put into question the legitimacy and autonomy of the Standing Committee on Human Rights. Human rights advocates raised concerns about the process by which the human rights body was created. In response to this reaction, the government then published a gazette notice almost a year later on June 21, 1996, purporting to establish the Standing Committee on Human Rights (one month after members had been appointed).116 On July 5, 1996, the attorney-general formally launched the Standing Committee, noting in his speech, that the Kenyan government was committed to address all violations of human rights and to provide mechanisms for remedies and protection to guarantee enjoyment of these rights enshrined in both the constitution and international conventions.117

However, since the announcement was published under a gazette notice and not under subsidiary legislation or any act of parliament, it has no legitimate legislative sanction for its establishment.118 The government sought to overcome this legal deficiency by claiming that the president was empowered to found the Standing Committee by a gazette notice pursuant to section 23 of the constitution which enables the president to appoint or remove any person to or from any post.119 Acting under this sweeping power, the government named the various members of the Standing Committee on Human Rights. Executive control over the Standing Committee went even further when the government set out the functions and powers of the Standing Committee. The government's actions are legally questionable since section 23 of the constitution does not enable the establishment of any executive body nor the delineation of its powers. Section 30 of the constitution permits only parliament the power to legislate.120

The procedural rules subsequently made by Professor Mutungi as chair of the Standing Committee are similarly legally flawed.121 There was no statutory delegation by parliament to the chair to make any rules which would amount to subsidiary legislation. Such rules and regulations are also statutes, and as such can only be passed by the legislature in accordance with section 30 of the constitution. The Standing Committee's rules purport to be made in accordance with the founding gazette notice which states that the Standing Committee "shall in consultation with the Attorney-General establish its own procedures."122 However, since the gazette notice is itself not from parliament, it cannot grant any powers to make subsidiary legislation rules.

The government was well-aware of the legal limitations of its actions, but the steps taken accurately reflected the dilemma facing the government at the time: On the one hand, it needed to make some gesture to satisfy international and domestic pressure, while on the other hand, it did not want to create any autonomous government department that could take on a life of its own in speaking out against the actions of the executive. Ultimately, President Moi leaned heavily towards the latter choice, and retained total executive control over the new human rights body, while sacrificing almost all, save in name, with regard to the credibility and legitimacy of the new body it was creating.

As a result, the Standing Committee on Human Rights is a body formed at the discretion of the president, whose members are appointed by him, which reports only to him, whose action is decided by him, and whose members can be removed by him. Nonetheless, the Standing Committee on Human Rights continues to assert that it is an independent body. Its mission statement states that it is:

an independent institution empowered through its terms of reference, to investigate complaints of alleged injustice, abuse of power and unfair treatment of any person by a public officer in exercise of his official duties. It investigates alleged violations of fundamental rights and freedoms set out in the Constitution. Part of its mission is to educate the public and to raise the public awareness of its individual and collective rights.123

Its powers are extremely weak. The rules of procedure drafted by the Standing Committee Chair Onesmus Mutungi further restrict the powers and efficacy of the Standing Committee by prohibiting public statements by committee members.124 The Standing Committee is only mandated to make recommendations to the president. Such reports were confidential and until 1998 were not for publication. In 1998, the Standing Committee for the first time published a report. When asked in an interview how the public would appreciate the work of the Standing Committee if it did not make public statements, chair Onesmus Mutungi replied: "We hope, as Christians, that they will appreciate our successes silently."125