Let us live up to the demands of the Constitution

Posted by on 28th August 2015

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Kenyans went through a grueling past to birth the Constitution in 2010, yet the last five years has seen them leave its implementation to political leaders who as time has proven cannot be trusted. The great expectations and policy demands captured in the Constitution need an engaged citizenry to be realized.

The Constitution in article 3 states that every person has an obligation to respect, uphold and defend the Constitution. This clause should translate in Kenyans taking the challenge or exercising their right against anyone who threatens the dictates of the Constitution.

The public must not only participate in their affairs but also call to order leaders who do not live up to their oath of office. Although, the Constitution gives the public the right to recall elected leaders who fail to undertake their duties as expected, the clause remains untested yet time and again citizens complain that their leader has failed in one way or another.

The provision that has been well utilized is petitions. Citizens have petitioned Parliament to undertake investigations, some of which have seen reforms taking place like that which led to the ousting of former Ethics and Anti-Corruption Commissioners (EACC). The other petition still being investigated is the dissolution of the Makueni County Government.

Kenyans greatest failure has been the low attendance of various public participation forums available to interact with county and national governments. The main issue driving this has been the perception that their input will not be considered. However, judicial decisions that have kept underlining the need for public input have helped to encourage the public to take up their responsibility. Processes that have not included public opinion have severally been termed an illegality.

The call for this Constitution was inspired by the lack of a people centered public affairs management. Kenyans were tired of dictatorship. Today, by Kenyans not taking up the opportunities laid in the Constitution, they are betraying the same call and sweat that informed the sacrifices for a new legal order.

On the political parties’ front, today the public fund the leading parties, meaning that they should demand from them servant leadership through their participation. The public should also ensure political parties are representative and meet Constitutional demands expected of them. In all the parties, people are yet to demand for grassroots structures that will promote their participation.

Kenyans must seize the moment and take charge of their affairs in line with article 1(i) which states all sovereign power belongs to the people of Kenya and shall be exercised only in accordance of the Constitution.

Kenya needs bold individuals to stand up and call for what is right within political structures be it in the Executive, Parliament, political parties or county assemblies. The Judiciary has shown that when you side with the Constitution, you always win. The buck stops with the public!  What will you do?

Extending time to pass key Constitutional Bills must be done prudently

Posted by on 24th August 2015

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MPs will have an informal Kamukunji to change the dates for the passage of key Constitutional Bills as August 27th nears without them discussing them as stipulated in the Constitution.

A total of 28 Bills were required to have been passed by August 27th. They are the Minimum and Maximum Land Holding Acreage, Agreements on National Resources Bill, Forest Bill, Community Land Bill, Physical Planning Bill, Investigation and Historical Land Injustices Bill, Land Use Bill and Evictions Bill.

Others are the Energy Bill, the Petroleum Exploration and Production Bill, the Bill on Representation of Marginalised Groups, Two-Thirds Gender Principle Bill, the Seeds and Plant Varieties Bill, the Organisation and Administration of Appeal Bill, and the Small Claims Court and the Contempt of Court Bill.

The House earlier shortened the publication period for eight proposed Bills from 14 days to one and formally introduced them to the House for first reading. These are the Petroleum (Exploration, Development and Production) Bill, the Community Land Bill, the Physical Planning Bill, the High Court (Organisation and Administration) Bill, the Protection of Traditional Knowledge and Cultural Expression Bill, the Forests Conservation and Management Bill, and the Small Claims Court and Court of Appeal (Organisation and Administration) Bill.

The House requires a two-thirds majority of 233 MPs to be present and voting to extend the deadline of any constitutional Bill from the date set in the Constitution. Speaker Justin Muturi banned travelling of MPs outside the country to ensure all are in the country to deliberate and decide on the matter. The Kamukunji will also deliberate on the amendments to the Constituency Development Fund (CDF) Act.

Legislators have claimed that the delay is due to failure by key institutions to draft and publish the Bills in time for debate. The institutions are the Attorney General’s office, Cabinet and the Constitution Implementation Commission (CIC). Indeed if they have yet provided the House with the Bills, then it is not wholly their fault to fail to pass them in time. The Constitution Implementation Oversight Committee (CIOC) of the National Assembly has the power to sanction the specific institutions delaying the Bills.

Perhaps the wisdom of not wanting to rush Bills is to ensure they are accorded the quality time they deserve so as not to pass half-baked laws that will have a grave impact on the republic.

CIOC has proposed 12 months extension to pass the Bills. This motion should be passed with timelines on when they have to be presented in the House for debate. In addition, it should entail sanctions on institutions and offices that fail to provide the Bills within the stipulated timelines.

These Bills have a huge impact on Kenya as they directly affect the core of the country. They should be prioritized as a matter of national importance.

The KDF Amendment Bill needs revision

Posted by on 17th August 2015

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The Kenya Defence Forces (Amendment) Bill 2015 that seeks to amend the Kenya Defence Forces Act 2012 has wanting provisions. A study of the recently published Bill reveals key issues that are inconsistent with a free and democratic society. The Bill:

  1. Removes the legal requirement for Cabinet Secretaries to monitor defence matters and report the same to the President and Parliament;
  2. Removes the requirement for service commanders to commission research and benchmark against best practices on the Service;
  3. Removes the Director of Public Prosecution oversight role in punishing its members for  civil offences committed outside Kenya;
  4. Removes medical and salary obligations rightfully accorded to KDF members deployed in missions whenever they are hurt or killed in the process;
  5. Repeals the requirement to publish and publicize annual reports arguing that defence matters could be prejudicial to national security.

The Bill’s provisions will affect all Kenyans. For instance, removing obligations to compensate or pay all dues for officers on duty is something their family members will feel.

However on the good side, the Bill contains some prudent provisions. The Bill:

  1. Lists auxillary reserves as being Kenya Forest Service, Kenya Wildlife Service and National Youth Service; and
  2. Streamlines the military chain of command;

As the National Assembly needs to interrogate it, when it is committed to the committee stages and also provide for adequate and robust public participation.

Specifically, the House needs to

  1. Do away with the provisions that infringe on the right to know the operations of KDF in a given year. They can restrict specific details but broader issues must be published and publicized. For instance, Kenyans need to know how many of their fellow citizens are involved and those who die due to involvement of KDF in Somalia.
  2. Ensure KDF members are accorded their rightful recognition and be paid if hurt in the course of duty and their families compensated as currently stated in the KDF Act 2012. In any case, the current Act should provide better guidelines on the matter.
  3. Have oversight on operations at all times including deployment of KDF members locally. This requirement needs to be reinstated.
  4. Get the Senates input. The memorandum of the Bill states that the Bill does not concern county governments. This rightfully is so but some of the provisions the Bill is seeking to amend, delete or repeal need Parliament’s involvement. The Constitution is clear that Parliament is both the Senate and the National Assembly, not one of them or in this case only the National Assembly.

This government Bill needs to be discussed robustly for a better document to be passed by Parliament.

Auditor General needs to communicate better in his reports

Posted by on 8th August 2015

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The Auditor General’s recently published audits of national government ministries, state institutions and county governments need to be improved to better communicate to the public. While auditing is the Auditor’s constitutional mandate, poor communication of its contents make the reports prone to political machinations and failure to capture its true meaning and message.

Communication lies at the core of effective messaging. It can make a whole difference as it would assist citizens to read and understand the audit. For scrutiny by relevant individuals and institutions to be effective,  the right questions must be asked and answered.

Currently, when one reads the audits it is hard to identify the areas where some pilferage took place even after counter-checking the figures as indicated in the summaries. Simple addition of the specific amounts does not guarantee you are correct either.

For instance, if you want to check the unsupported Ksh 66.7 billion expenditure through specific ministries, arriving at that figure is not only tiring, but also likely to be inaccurate. This means the wording of the report is not clear to easily inform the reader.

The Auditor General also has to deliver reports in good time as the Constitution stipulates. Article 229 (4) states that the Auditor should within six months after the end of each financial year, audit various public institutions to confirm whether or not public money has been lawfully used and in an effective way.

This auditing process is part of the general budgeting process that takes place every financial year. It is the final of the four stages, the others being formulation, amendment/approval and implementation. Normally, the audit reports should have been published by last December. Failure to publish the report time, hinders Parliamentarians and public ability to assess financial management of the ministries and determine allocations for the next financial year.

The audit relates to 11 key issues: accounting framework, overall audit, audit of revenue and expenditure statements, unsupported expenditure, excess expenditure, pending bills, management of imprests, maintenance of bank and cash accounts, statement of assets and maintenance of accounting records.

Each area shows how the financial systems of a public office are being managed and those who fail to do it prudently should be punished. Such punishment could be lower budgetary allocations than what they wanted as they have failed to undertake due diligence.

For example, pending bills refers to cases where services and goods are rendered but payments were not honoured during the committed financial year.  Such a transaction carried over to a new financial year might take monies for other developments. Kenya operates a cash system, meaning that it is only when cash is received that commitment is done. It therefore behooves the office holders to pay during the stipulated time.

Regardless, of the late submission of the Auditor General’s report, Parliament must debate its findings and take appropriate actions.

 

Parliament must strengthen public spending checks

Posted by on 3rd August 2015

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Shocking revelations in the recent Auditor General’s reports on the use of public finances by the national and county government over the 2013/14 financial year, point to misuse of executive power and general institutional inefficiencies.

Only 1.2 percent of national government expenditure for the period under review was incurred in a lawful manner, 60 percent had issues and 38.5 percent could not be explained. The 2013/2014 gross budget of sh1,557,192,721,388 was shared between the National Government and the County Governments at the ratio of 87.5 percent and 12.5 percent respectively.

For instance, during 2013/2014, a number of Ministries, Departments, Commissions and Funds failed to avail documents in support of various expenditure totaling sh66,782,697,987. If minimum wage is sh12,000, sh66 billion can pay about 4,600,00 people for a year! Sixty-six billion is also way more than the sh24 billion Kenya received as loans from foreign governments and organizations.

In absence of the records and documentation, the propriety of the expenditure could not be ascertained and therefore these public funds may not have been utilized lawfully and in an effective manner.

Parliamentarians need to be concerned and act on the failure by the national and county governments to follow the laid down laws. The audit reports reveal the government’s utter disregard of the Public Procurement and Disposal Act 2005 and related Public Procurement Regulations, 2006 and 2013, Government Financial Regulations and Procedures, and Public Finance Management Act, 2012.

The gross concerns raised in the reports relate to unsupported expenditures, non surrender of imprests, unauthorized expenditures, long outstanding reconciling items in bank reconciliation statements, excess expenditure, mis-allocation of expenditure items and lack of adequate disclosures.

Others are discrepancies between the financial statements and the respective ledgers and the trial balance, differences between 2012/2013 closing audited balances and opening balances for 2013/2014, unsupported balances in the financial statements, and failure to prepare financial statements in accordance to International Public Sector Accounting Standards and treasury instructions

Although Treasury Cabinet Secretary Henry Rotich has come out to defend state agencies that requisite documents were availed late, it leaves a lot to be desired as to how public officers value public duty and public money. Failure to provide the necessary records in time could mean that they were non-existent and only conjured up when the audits were published to provide explanations.

Parliament has a duty to restore public trust in public officials by ensuring they are beyond reproach and working towards that which their oath of office expects them to deliver. It needs to call all the relevant officials to answer the concerns raised by the Auditor General and where they cannot, order further investigations and prosecutions by the relevant government agencies.

On the other hand, the Auditor General’s office should be strengthened through the Public Audit bill and capacitated to provide the annual audit reports in a timely manner and inform the next year’s budget.

Senators need to check corruption in Counties

Posted by on 27th July 2015

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Auditor General’s most recent report reveals some glaring inconsistencies in counties’ financial probity that call for the Senate to check their lack of prudent expenditure of public money. Twenty-nine Counties cannot account for their budget allocations and reported revenues remain low despite increased levies.

The report sheds light into a web of mechanisms employed by county government officials to avoid accounting for public funds. Local revenue remains low in counties and waste, over-expenditure, shifting of funds to unbudgeted items, plus outright theft is endemic.

Reduced and unaccounted for revenues is one of the issues raised in the audit queries. For instance in Nairobi County, the report reveals that though the county generated Sh5.5 billion as revenue, only Sh5.2 billion was banked. This raises questions on the whereabouts of Sh252 million. This amount was not banked, neither was its expenditure approved by the Controller of Budget (CoB).

Counties also failed to provide proper documentation on expenditure. For instance, In Kisii County, the assembly paid the MCAs Sh20 million for foreign trips yet they did not provide supporting documents. This includes claims made on the trips to China, Germany, Israel, United States and Uganda which had no backing in the form of invitation letters or passports to prove that the members travelled.

Unregulated expenditures were also raised. In Nyamira, the office of the governor at one point paid 33 MCAs and the speaker Sh10000 each for lunch as they discussed the Finance Bill. This is against the law as they did not even move out of their work stations or location.

Reports in the media indicated that the Senate’s Public Accounts Committee intends on summoning Governors and County Assembly clerks to explain the reported plunder of the public funds allocated to their counties. That meeting needs to happen soonest to keep counties in check as they start implementing the current budget.

The Senate was specifically created to advance devolution and protect it. Recently, it won a court case in which Governors did not want to be summoned by them but the court ruled that it has the powers to do so. This teeth needs to bite.

Protecting devolution which Kenyans fought for and want to see make their lives better will not be realized if office bearers in counties are allowed to plunder public money. The Auditor’s report made some recommendations on the specific cases including surcharging members, calling for further investigations and adhering to procurement regulations.

It is hoped that Senators will call the individuals concerned to explain the inaccuracies and take further actions against those who fail to give credible reasons for the failure to exercise financial oversight in the counties. Senate has powers to bring this plunder to a stop and needs to do it, Pronto!

 

Rule of law must be upheld by all to fight corruption

Posted by on 20th July 2015

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Rule of law means that citizens and those who govern them should obey the law. On the 9th of July, the National Assembly proposed two controversial amendments to the Ethics and Anti-Corruption Commission (Amendment) bill 2015.

One proposal is to have the Public Service Commission (PSC) recruit EACC Commissioners where a vacancy arises. This is utter disregard of Article 249(2) of the Constitution which secures the independence of Constitutional Commissions and Independent Offices.

The second proposed change is to have the Offices of the Secretary and Deputy Secretary to the Commission become vacant upon the commencement of the Act which effectively and un-procedurally terminates the terms of service of the incumbent. This is in breach of the EACC 2011 act which clearly stipulates the grounds on which the Secretary may be removed from office.

The EACC (Amendment) Bill, 2015 was passed in the National Assembly with these provisions and now awaits presidential assent.

The only positive proposal put forward was the need to increase the number of Commissioners from three to five as well as provide for the Chairperson and the, members of the Commission to serve on a part-time basis. Otherwise, the other two controversial clauses water down the EACC’s management.

In fighting corruption in Kenya, Parliamentarians must exercise sober judgement and demonstrate leadership. Parliamentarians, should never allow other public officials, let alone themselves, to operate outside the law, either by exercising a power they are not entitled to employ, or by using it in a way that violates the law. They need to exercise power only where they have legal authority to do so.

Parliamentarians seem to be aggrieved by the List of Shame which included some of them yet they want the commission to work and end corruption in Kenya. It is double speak that has no place in a progressive country.

MPs need to recognize that the EACC is an independent commission and as such, proposing changes to it frequently will affects its service delivery and derail the war against corruption. They need to appreciate that as a core institution of governance, it should only be supported to realize a better, integrity filled country.

Parliamentary committee sittings should be conducted honorably

Posted by on 11th July 2015

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The most important conversations in Parliament happen in committees hence when such a meeting becomes chaotic, the prudence of continuing to hold it is washed away as substantive debate cannot take place. In committees, legislators look through ideas, vet individuals, consider motions, debate proposals and interrogate key office bearers to understand issues. Eventually, committees present their findings and proposals to the house plenary sittings.

Unfortunately this week, the joint Finance, Planning and Trade and Labor and Social Welfare committee sitting in the National Assembly was chaotic. The sitting was convened to interrogate the Cabinet Secretary for Devolution and Planning on the National Youth Service (NYS) alleged corruption, steps taken to stop it and other NYS related concerns.

The debate deteriorated on a number of occasions due to things that could have been avoided.

One; members took partisan positions. It became a Jubilee and Cord shouting match. Some members said the government was using the NYS to make political advances.

Two; there was repetitive questioning of the same issue by different legislators even when it had been previously addressed irking other members including the chair.

Three; members found it difficult to allow for full questioning and kept interrupting debate from time to time without raising substantive issues.

Parliament is supposed to be a house of honor. Its deliberations affect the country at large. The NYS issue affects majority of youthful Kenyans, as they would want to learn from it and benefit as some are in Kibera and Mathare slums.

MPs need to understand that when they are in the house including committee sittings, they speak for their people and not selfish interests. In any case, government work is financed by taxpayers and all concerned must be accountable. Parliamentarians should advocate for public interest and this does not include shouting and blocking divergent, critical views.

In this instance, MPs were undertaking their oversight role. Oversight means checking compliance to the law, ensuring that the respective institution and individual abides by the dictates of law and where this is not done, calling them to order including recommending the full house redress mechanisms.

The joint committee sitting unearthed nothing substantive. Parliamentarians failed to use the opportunity the Constitution gives them to raise pertinent issues that would enlighten Kenyans on the NYS.

Although, the Cabinet Secretary was well prepared for the sitting although she was not interrogated. NYS graduates are leading community youth in development projects, including slum-cleaning initiatives aimed at uplifting the livelihoods of the informal settlements. They earn an average of Sh500 per day and save in Saccos, where they can access financial loans.

This is something MPs need to recognize as empowering to Kenyans and support it. Parliamentarians also need to objectively raise any concerns they have to ensure it is above board. Using a critical platform for partisan interests should be shunned. It is hoped that the Speaker will rule on the matter since it was raised in the House and provide useful guide to future committee sittings that can deteriorate.

 

 

Political Parties must invest in internal strengthening

Posted by on 3rd July 2015

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Political parties are foundational to politics and democracy. Under constitutionalism, political parties are the essential vehicle for establishing governments as without them hardly any meaningful public participation can take place. They invite people to register as members who legitimize aspiring candidates to vie for office and if successful form government.

At a recent launch on political parties’ adherence to the law in line with the Constitution in Article 91 and 92 and the Political Parties Act (2011), it was evident that they are not adhering to the law. The study undertaken by the Institute of Education in Democracy (IED) was based on 21 political parties that have representation in Parliament.

According to Article 91(1) of the Constitution all political parties must:

  • Have a national character,
  • Promote and uphold national unity,
  • Have a democratically elected governing body,
  • Abide by democratic principles,
  • Respect the right of all persons to participate in the political process,
  • Respect and promote human rights including gender equality and equity;
  • Promote rule of law and;
  • Observe the political parties code of conduct.

On the other hand, Article 92 elaborates on the legislations required on political parties.

 

Kenya has 60 registered political parties. IED looked at how some of these political parties undertake their business, identified the existing gaps and made recommendations on measures that should be taken.

The IED report revealed:

  1. Political parties and the Registrar of Political Parties are averse to sharing party membership lists. Only three parties shared it. Party membership lists is useful to check to compliance to requirements like gender and regional balance et al.
  2. The lack of a substantive Registrar of Political Parties is impeding the office from giving better service delivery.
  3. All parties do not have offices in 24 of the 47 Counties as required by law.
  4. Disbursement of political parties funds need to be rethought through in order to fund more parties, promote accountability and better service delivery

The gaps identified are not solely about political parties but also the broader electoral system.

Parties birth representatives to Parliament who then determine the bread and butter issues for every Kenyan. Disorder in political parties is inversely connected to poor representation be it in Parliament or County Assemblies.

In addition, political parties are supposed to create forums for interaction of its members with the elected leaders to inform law and policy. With such internal structures in place, party members can take positions on various issues and whip their leaders to move them through Parliament.

Weak party structures deny the public opportunity to pro-actively engage and inform debate in Parliament and County Assemblies. The deeply entrenched culture of Political parties recruiting members in the lead up to elections perpetuates the continued perception that they are vehicles for elections only and renders them still born.

On the other hand, poor civic awareness has caused most Kenyans to ignore registration as Political party members, yet this is the only way to grow our democracy. By joining political parties, the public can push for congregating structures to be established including think tanks, get their preferred candidates nominated and ensure the elected officials deliver on their mandates. For our democracy, to grow Kenyans need to take power back and push for strong parties. Will you rise up?

Here is the comprehensive report From Law to Practice

Parliament must investigate NYS alleged graft

Posted by on 26th June 2015

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The National Youth Service (NYS), a very promising institution is currently embroiled in accountability issues that need concerted efforts to resolve them. The work that the NYS has undertaken especially in building roads, opening up drainages and providing some socio-economic facilities for people especially in slum areas has been evident.

In the recent one week, there have been strong allegations of impropriety. Later, Devolution and Planning Cabinet Secretary Anne Waiguru came out to state that she had stopped some fictitious payments of sh826 million and provided details to the Criminal Investigations Departments (CID) to investigate and prosecute those found culpable.

With regard to this matter, two grave concerns have been highlighted. The first is the personnel who are alleged to have committed the fraud. It is alleged that a password belonging to Senior Deputy Director General Adan Harakhe was stolen and used to sanction some illegal payments.

The second key concern is how secure is the Integrated Financial Management Information System (IFMIS) that is used by government to make payments. The system, which is operated by human beings, has been previously stated to be foolproof. In fact, transactions done from one department can be seen by another hence able to see any anomalies. It is this feature that enabled Treasury to raise the red flag in the institution leading to the current situation.

In light of the emerging concerns, strong leadership needs to steer the debate in the right direction.

First, for too long, a few Kenyans have led to the misery of so many yet they go unpunished. Fraud at NYS will affect not only its members and the communities that they work in but also many dependent on them for the casual jobs and others grateful for the sanity they have created in their communities.

Secondly, all investigation institutions need to rise to the occasion and make a clean break from the past. They need to prioritize and see to it that no stone will be left unturned.

Thirdly, Parliament, which consists of peoples’ representatives need to be decisive. Already, the Labour and Social Welfare Committee of the National Assembly will next week meet Waiguru to shed light on the anomalies and what she has so far done about it.

This NYS situation should bring out the best in the separation of powers principle. Parliament which is constitutionally independent from the executive must be seen to live by this dictate and unearth whatever rot is in the institution to safeguard its integrity and ensure Kenyans do not suffer.

Under the separation of powers principle, Parliament is expected to check the executive to ensure there are no excesses. Summoning Waiguru is the first step. It needs to move, after collecting and collating information from her, including summoning anyone else, tell Kenyans where the problem is.

So far under the jubilee administration, this principle has not come out strongly. Parliament has been seen to be an extension of the executive, not doing much to properly vet its nominees, check its powers and investigate issues to the best of public’s demand and expectations. Let this not be the case as before.