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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.

Parliamentarians’ supremacy differences over budget are not in public interest

Posted by on 21st June 2015

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The raging supremacy war between the Senate and the National Assembly over budgetary allocations are unfortunate and against public interest. The two houses have severally fought over their mandates and from time to time, taken parallel positions over Bills, decisions or some assertions. This current public spat over the budget should never happen.

The creation of the two houses was informed by history and the need to protect devolution. Senate has the mandate to ensure devolution works and services it is supposed to render through county government take place efficiently. The National Assembly on the other hand has its mandate in national functions. From time to time, the two houses need to consult on various bills before a decision is made and the Bill taken to the President for assent.

The National Assembly slashed Senate’s Sh1 billion allocation to senators for monitoring and evaluation, Sh800 million from the Judiciary’s budget and Sh200 million from the SRC in the budget for the financial year 2015/16. Senators wanted the money to monitor various projects undertaken by their counties. MPs argued that the figure is wasteful and should actually not have been allocated in the first instance.

Senators saw the budgetary cut as a punishment and anti-devolution. On the other hand, the Judiciary took the flak because of the 2013 advisory opinion that the Supreme Court made making it mandatory for the two Houses to be involved in legislating on the revenue bill. The Judiciary has since further ruled that the Constituency Development Fund (CDF) should be restructured as it is unconstitutional.

Angry senators criticized the MPs for being “vengeful and vindictive” in slashing budgets for constitutional organs and institutions that they considered unfriendly to them. Discussing a motion to establish a select committee to inquire into what they see as the excesses of the MPs, senators described the National Assembly a “a rogue House lacking in wisdom and experience” that must be tamed.

Budget making is a shared function in which Parliamentarians should demonstrate great soberness in making decisions affecting the Counties and the National functions respectively.

Budget making determines how the national cake will be distributed for a certain financial year. It also lays the foundation for the collection of taxes and other measures meant to ensure the public are better off than the previous year. As such, it is the most crucial document and process for the growth of a country. It is also one that can make or break a people.

Though wrangles are not always a bad thing, as they help bring out differences to be settled. In this case, leaders need to put public interest issues first before their personal differences to ensure the public gets value for their representation.

To reduce tension going forward, parliamentarians need to put in place an inclusive system with representation from both chambers to discuss the issues they want to prioritize during the budget process. What do you think?

Time ripe to legislate on Vetting

Posted by on 12th June 2015

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The manner in which MPs handled the nomination of Amb. Dr. Monica Juma as the Secretary to the Cabinet calls for a vetting law. This is not the only case in point but since the Uhuru government was sworn in, the vetting exercises have been wanting. It would be okay if her rejection was based on substantive reasoning, but nothing is further from the truth.

During the vetting, the committee clearly established the following:

  1. Dr. Juma has the requisite qualifications and vast experience in public service to make her suitable for the position;
  2. She has meticulously risen through the ranks in academia and professionally;
  3. She has never been implicated in any corruption scandal in her official capacity;
  4. She exhibited impressive knowledge of topical issues including public policy and security.

These remarks make one wonder why they rejected her. In fact, considering those remarks, she ably met and surpassed the set standards in the Public Officers Ethics Act 2003, the Public Service (Values and Principles) Act 2014, Leadership and Integrity Act 2012 and Chapter six of the Constitution.

Part 9 (1) of the Public Officers Ethics Act expects a public officer to carry out their duties in a way that maintains public confidence in the integrity of his office; treat the public and his fellow public officers with courtesy and respect; seek to improve the standards of performance and level of professionalism in his organization; and discharge any professional responsibilities in a professional manner among other requirements.

To discredit her, MPs cited a letter she had written to the Clerk and Speaker of Parliament requesting MPs to stop pushing for favors and continually visiting her office. The letter clearly stated that the police service is stretched and all areas will be treated fairly and without favor.

The letter was very professional, something the MPs decided to interpret as in bad faith. MPs decision in this case is unfortunate as it implies that merit can be subordinated to myopic egoistic interests. Truth be told, most legislators cannot pass the stringent requirements in chapter six of the Constitution undergirding public officers’ behavior.

More importantly, this process makes a case for vetting law. Many public officers vetted since March 2013 have had questionable pasts and the true considerations of legislators in approving or rejecting a candidate remain very subjective.

A vetting law would stipulate:

  1. How the process should be undertaken,
  2. Entrench the requirements for each candidate,
  3. Set a threshold to pass; and,
  4. Include any recourse mechanisms that the appointing authority or nominee can take if they feel dissatisfied with the process.

Mortals are reactionary hence this vetting should push Parliament and the Attorney General’s Office to hasten the drafting and passing of the necessary legislation. Clear guidelines for future public appointment interviews should be put in place to ensure merit prevails rather than political expediency.

CDF and Women Fund allocations in the budget are unconstitutional

Posted by on 8th June 2015

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Parliament has been engaged in intense negotiations over the division of revenue Bill that finally saw an agreement passed. The National Assembly deducted funds from Senate, Judiciary and the Salary Remuneration Commission allocations as a form of punishment. The three institutions especially SRC and Judiciary have stood up to Parliament, something the legislators have felt should not be the case.

Even as the debate settles, there is need to scrutinize the specifics of the budget. Public scrutiny at this point is critical before the main budget is read to the nation. This is a public duty and constitutional requirement all need to undertake.

In its ruling few months ago, the High Court held that the Constituency Development Fund (CDF) Act should be amended to conform to the Constitution. This move irked the MPs, and for this reason they decided to punish the Judiciary by reducing its allocation.

Some MPs have come out publicly that they will appeal. Instructively, the Constituency Development Fund Board has put out a request for public input to inform amendments to the current law in order to comply with the court order and the Constitution.

In utter disregard of the High Court ruling, Parliament has gone ahead and allocated itself funds for CDF. Over sh38B has been allocated to CDF in the next financial year up from the current sh37.34B. This shows that Parliamentarians are not interested in abiding by the law.

In addition, there seems to be an allocation of sh2.03B as Affirmative Action Fund. This fund is what is also referred to us ‘Women Fund’ which was fought for by the 47 Women Representatives who wanted a fund for various programs in the counties.

In the court ruling regarding CDF, the Judges were clear that

…nowhere is it contemplated that a constituency shall be one of the beneficiaries of the national revenue before it is divided between the national and county government. Article 206 (1) (a) and (b) of the Constitution…

The Judges further stated that

In light of the specific grant and definition of legislative powers under the provisions of Articles 95 and 96 of the Constitution, we find that the involvement of the Members of Parliament in the CDF implementation violates the core principle of separation of powers and to this extent, the CDF Act is unconstitutional. We will also add here that, to the extent that the Act conflates the executive and legislative functions, it obfuscates accountability mechanism envisaged under the Constitution underpinned by the doctrine of separation of powers. In that respect, the Act violates key national values and principles enunciated under Article 10 of the Constitution, to wit, good governance and accountability and we so find.

It is clear from the ruling that the Judges found CDF against separation of powers principle and public finance in the Constitution. For Parliament to allocate funds to it and even add funds for Women Fund is tantamount to contempt of court. Parliament needs to show leadership and restraint and this decision is far from it.

A Bi-cameral Parliament should serve Kenyans as envisioned in the Constitution

Posted by on 29th May 2015

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Kenya’s constitutional movement from old to the current one has been eventful and inspiring. Five years on, much has been accomplished and much still needs to be done. Any transition requires changes in attitudes, values, practices and mindsets. Development of a new constitutional culture will also depend on whether there is genuine, collective and deliberate effort to embrace the new order.

Even with the desired political will to implement the Constitution, the complexity involved in building institutions will pose a challenge. The required changes in institutions and in systems of governance introduced by the Constitution will take time to be fully effective. This realization informed the National Assembly’s Budget and Appropriations Committee decision to form a working group to audit the Constitution.

The group has produced an interim report which affirms that the Constitution has been a blessing but more needs to be done to realize its true aspirations, both in what Kenyans wanted and also in what the document articulates.

On Parliament, the report makes some accurate observations;

Under a pure presidential system such as the one adopted in the Constitution, MPs from the President‘s party or coalition are supposed to balance between two contradictory roles i.e. checking the executive in the national interest and safeguarding their coalition‘s legacy for future elections. MPs from the minority party or coalition are also supposed to support the executive in the quest for the attainment of the national interest and oversight on the national executive.

In practice, though, Parliament has carried out its business with the collective mindset of a parliamentary or mixed system of government. The majority coalition sees itself as the government side while the minority side sees itself as the opposition. The current system of government envisages Parliament working cohesively to push the legislative agenda at the national level. The practice of positioning the Majority Leader as a ―government spokesman in Parliament while seeing the minority coalition as a ―shadow cabinet is, therefore, in dissonance with the system of government in the Constitution.

The root of the problem is an entrenched bad culture spanning years but which needs to be uprooted. Kenyan Parliamentarians superiority complex is exemplified in Bills debate and appointment of various officials. The last two years have also seen Parliament go against the text and spirit of the Constitution. It does not help much when Senate and National Assembly constantly haggle over issues.

Parliament needs to embrace the principle of cooperative government and commit to its application in resolving disputes. Alternative dispute resolution procedures should be pursued and legal redress sought where all else fails. In addition, clear guidelines for determining when proposed laws affect the counties or not should be established.

For the aspirations of Kenyans presented to the Constitution to be realized, Parliamentarians in their functions need to abide by the law as presented in the Constitution. This will go a long way in making Kenya a united country.

Parliamentarians ranking exposed serious gaps in civic education

Posted by on 23rd May 2015

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Article 35 of the 2010 Constitution clearly stipulates that Kenyan citizens have a right to access information. When article 35 (1) (a) is interpreted loudly, it may also requires government to ensure that information is not just accessible but also sufficiently understood by Kenyans. This is for purposes of empowering them and ultimately enriching our young democracy. Solid democracy is pegged on an informed citizenry.

The Parliamentarians ranking stories published by the Daily Nation earlier this week exposed serious gaps in civic education and also the opportunities available to various stakeholders to improve the exercise. First, the Parliamentarians perception survey revealed the public’s general lack of awareness of the duties of their representatives in Parliament. The reasons the public gave for ranking their Parliamentarians as capable or incapable provide useful pointers to the Independent Electoral Boundaries Commission (IEBC) on the main gaps to be addressed in civic education.

Secondly, the framing of the Survey question “How would you rate the performance of your Senator/MP on a scale of 1 to 10? (Where 1 was extremely poor and 10 excellent)” was alarmist and sensational at best.  The question was simplistic, assumptive and served to confuse an already confused populace. The Daily Nation failed to competently take up its agenda setting and educational role by not formulating a question which highlighted Parliamentarians work.

Thirdly, it is unfortunate that the survey question in some way perpetuated the myth on the work of a Kenya MP and trashed the facts. The job description of parliamentarians is short and clear, Kenyans pay them to legislate, oversight and represent them, all of which are carried in Parliament.  By not putting parameters that really matter, the survey missed a chance to shape a productive national discussion on whether Kenyans are getting value for their money.

Fourthly, for Kenya to grow as a democracy, transparency and accountability, from all stakeholders in civic education must be keen with the details and not the buzz that little talk elicits. In the same case, the simplistic ranking of parliamentarians may have generated too much heat but Kenyans are still in an eclipse on issues concerning the role of parliamentarians.

Pollsters in Kenya have failed to understand demographic dynamics in our country and the background within which an opinion or lack of it is formed. The survey cheered mediocrity among the elected members and failed to recognize the diligence of some elected or even nominated members who have been active in the house. A sidebar story on the actual responsibilities of MPs and Senators would have gone a long way in civic education.

For instance Senators are supposed to be ranked based on their principal function of being the guardians of the counties. A quick check of the Hansard via Mzalendo.com will reveal that the Senator who ranked first never contributed anything on April 9th when the Senate was discussing the Division of Revenue Bill which has caused a stalemate between the Senate and the National Assembly. The same Hansard will reveal that the Senator who ranked last defended his county’s interests during the discussion.

In the end, perception ranking that is based on nothing, with no clear goals and objectives, may end up creating fertile grounds for personalized solutions rather than institutional based solutions. The media needs to be challenged to refrain from juicy headlines especially on an important issue like the competence of our elected leaders. In Kenya the media is the number one tool for civic education and therefore quality is of essence.

Budget estimates reveal increase in spending but at what cost!

Posted by on 18th May 2015

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Critical to determining how bread and butter is allocated to who, why and how much is the budget. The budget guides how the development of a country or county will be curved out in a given a financial year, so citizens need pay it some attention and engage in its development.

In Kenya, the government embraced Program Based Budgeting (PBB) in 2012. PBB can be described as a budgeting structure where money is distributed by program or functional area with an emphasis on the latter’s service delivery objectives.

A good program budget should explain the overall mission and objectives of the budget, clearly link priorities to programs, explain changes over time in allocations and expenditure and relate challenges and objectives in the sector to budget allocations and how the challenges would be addressed.

On 30th April, the Ministry of Finance published the budget estimates for the financial year 2015/16. It is instructive to note that with county governments taking over some functions earlier performed by the national government, looking through the estimates will help tell where the national government’s priorities are.

Some key issues of the previous budgets’ 2013/14 and 2014/15 should help interrogate the proposed estimates. One is that over the two financial years education received the largest share. Secondly, the three sectors (education, security and infrastructure and energy) have accounted for 64 percent of the total budgets over the period.

In the proposed 2015/16 budget, government is set to make big changes in sector priorities.  Infrastructure and energy sectors will have the highest spending at 27% displacing education from the helm. On the other hand, 18% of the budget will be spent on debt repayment.

According to budget analysis released by the International Budget Partnership (IBP) last week, Ministries of Lands and Housing, Gender and Youth plus Devolution have excelled in their absorption capacity. Even so, development related expenditure needs to improve substantially. In the next budget an increase in programs like rail transport, cabinet affairs, tourism and security is expected.

Questions that still need to be addressed include: How dependent are the sectors/ministries receiving large shares of funding on external resources? Should the estimates provide more funding to sectors/ministries that have historically been able to spend it or to those that have had spending challenges?

These issues should arouse an interest in more Kenyans to read the estimates and contribute, before the actual budget is read this June. It cannot be that budgets are devoid of public input and that even when avenues are provided, few take cognizant of them and attend.

‘Power of the Purse’ lies with Parliament, as the people’s representatives. Although Parliamentarians budgetary choices are often informed by projects in their regions, alignment to national priorities, implementation plans and audits the public can still inform the choices they make. Do you know what the estimates say about your county and constituencies plans? Is it aligned to your goals for better service delivery within your neighborhood? What would you like to see in the budget? Kindly let your Members of the National Assembly (MNAs) and Senators know.

Two Thirds Gender Rule Tenable

Posted by on 8th May 2015

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Debate on the realization of two thirds gender principle has elicited mixed reactions. Some reactions have been inaccurate while others from leaders usually expected to steer debate send the wrong message to the public.

Kenyans needs to recognize that the overwhelming support they gave to the Constitutional enactment entailed the gender requirement to ensure there is not more than two thirds of one gender in elective and appointive office. While appointive is more easily attainable, elective is not since it is pegged on many other factors.

In recent days, this issue has sparked debate primarily because the deadline for attaining it is August 27th 2015, as directed by the Supreme Court in 2012. Two main issues drive the Two Third’s Gender principle debate.

One, the chair of the legal affairs committee Hon. Samuel Chepkonga published a Constitutional amendment Bill which states that the realization of the two thirds principle be progressive. Hon. Chepkonga’s choice of words in effect dents any near future realization of the issue. By saying progressive, the proposed bill opens a door for an endless discussion of the issue.

Secondly, the Speaker of the National Assembly stated that Women Representative positions and nominated seats should be removed and in their place, 100 women be nominated. While the speaker has no vote, his sentiments send a message of a partisan chair who could oversee a critical governance issue.

Major opponents of this principle often cite the costs of implementing it. However, research by the Institute of Economic Affairs (IEA) in conjunction with Action Aid and the National Women Steering Committee (NWSC) has proven that the two Third Gender principle is tenable without much budget implications. It is clear from the research that:

  1. i) If 75 women are elected to Parliament; 70 to National Assembly and five to Senate, there would be no need to nominate any or amend the Constitution;
  2. ii) An additional seat in the National Assembly costs sh21.1M annually and sh31.3M one in the Senate seat. From the Auditor General’s report, unaccounted for budgetary allocations are much more than what it would cost to implement this provision. For instance, the audited accounts of 2012/2013, reveal that Ministries and Departments failed to avail documents in support of various expenditure in excess of sh33B.

To move this principle forward, political will is key. The President must also stand up to be counted as he Jubilee manifesto was unequivocal on their support of the gender principle.

Research has also shown that Kenyans are as likely to elect women as much as men. This means that if supported, there would be no need to nominate any woman. This spotlights the importance of political party support in realizing this requirement.

The National Gender and Equality Commission (NGEC) proposed that article 177 be lifted and used to ensure Parliament complies just as County Assemblies. Perhaps the debate should be on counter proposals and how to enrich them and not defeat them. What say you?

 

Public Service not fit for rejected politicians

Posted by on 2nd May 2015

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President Kenyatta appointed 302 Kenyans to various parastatal positions, making a bold move to appoint many candidates who were rejected by voters in the ballot. The move by the President is not only regrettable but also unfortunate at a time when so many things in government are going wrong.

It was an unprecedented move to not only see many rejected politicians being rescued through appointments, but also relatives, brothers and sisters of the same family being appointed. This is really sad as there is no shortage of qualified and diligent Kenyans who can deliver.

Though, it is not wrong to appoint a rejected politician, one must ensure that whoever is appointed is credible and diligent in their work and matched with an appropriate parastatal. In fact, they can bring in some experience and quality that can help steer that organization to higher heights. But this should not be haphazardly done as it seems.

Parastatals boards are pivotal institutions that define and determine the policy direction of an organization. They also approve multimillion shilling projects, paid for by tax-payers money. Previously, parastatals have been embroiled in political and legal battles, some which have not only dented their image but also deprived many of due services.

Our politicians look at elective office as a career and consequently parastatal board jobs are often avenues to fundraise for their next political battles. The consequences of such appointments are many. One, these politicians will resign in due time for the next elections. The effect of this is that the institution will lack their great input over the period of their absence to inform its decisions.

Secondly, politicians are likely to bring their alleged incompetence to the boards. Boards do not perform daily routine of the institutions but as they define policy and approve budgets, the effect of this reverberates in how the organizations are run. Two or so sittings a year can make or break an organization.

Thirdly, the message being sent to Kenyans is that you need to be politically correct for you to merit an appointment in public service. This practice leads to people vying for political office for the sake of it so that when the time comes, they know they may be considered for some appointive position.

Lastly, this practice makes Kenyans lose confidence in their leadership. Leadership is about perception and leaders need to send the right messages in their decisions; that they put the public first. Appointing rejected politicians sends a negative message; that public service is a preserve of a few.

It is in such times that Kenya deserves a Parliament that can ably check the executive. Such a Parliament would call to order and also veto decisions of the executive that are questionable. Our current Parliament is far from the ideal, and sitting MPs need to take their responsibility seriously. Kenyans also need to question their government over every retrogressive decision it has taken. This cannot wait until the elections.

Let us rethink our elections preparedness

Posted by on 24th April 2015

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Elections lie at the core of how governance is established and developed. The Presidential Elections petition presented to the Supreme Court after the 2013 General Elections, warrants interrogation so that any lapses in law and practice can be rectified before the next elections.

It is on this premise that stakeholders converged at the ‘Rethinking Elections Management in Kenya’ forum to audit the elections and the Supreme Court decision, as well as interrogate the case, judgment and consider useful steps to amend its shortcomings.

The forum highlighted five key issues. The first was the procurement and the use of the Biometric Voter Registration (BVR) and the Electronic Voter Identification Device (EVID) Kits. It was clear that the investment made was not only inadequate but also the kits were not robustly tested to check possibilities of failure. As it turned out, technology failed to deliver.

Secondly, the need for better election preparedness was spotlighted. Most Kenyans look at the election as an event, yet in reality, election is a process and only polling is an event. This attitude has significant implications on not only candidates in the polls but also voters, political parties, the electoral commission and the judiciary, as major decisions are often made last minute and in a hurry.

Thirdly, the fidelity of the voter register was questioned. During the election queries on what the final voter register comprised of and who had access to it were raised and the Supreme Court did not provide a conclusive response. In future, Kenyans need to own, interrogate and inspect this register because it determines participants in the election, who wins and how the country will be governed.

The fourth issue was the political party nomination and dispute resolution thereafter. Most political parties bungled their nominations and the dispute resolution processes revealed institutional weaknesses and confusion which must be addressed fast. In fact, great candidates were ousted in the shambolic nominations. In Kenya, nominations by a strategic political party are actually like the main election as the winner is often a shoe-in the polls; hence the need for more rigour.

The last issue raised was the composition of the electoral commissioners. Elections management is about perception and there is need to ensure those who lead the process can be held accountable by key players in the election e.g. political parties.

Meanwhile in Parliament, Hon. David Ochieng’ has tabled a bill that seeks to change the election date from Second Tuesday of August as set in the Constitution to the third Monday of December. The reasoning is that August disrupts the current cycle of things including the education calendar but December does not.

It is clear that many issues need to be resolved now and not wait for 2017. Kenyans need to interrogate election related laws and push for their improvement as well as monitor election preparations by the IEBC, Registrar of Political Parties and political parties. Decisions made have to put Kenyans interest’s first, not just politicians!