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All Interests on CDF must see Wanjiku First

Posted by on 2nd March 2015

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Resources meant for development at the grassroots always excite various interests, something the Judgment that found the Constituency Development Fund (CDF) as unconstitutional has proven. Interests are always good and welcome but worthy interests are those which are about developing the social fabric of society; schools, healthcare and infrastructure.

In the Petition filed by the Institute of Social Accountability (TISA), the petitioners wanted the Judges to find the CDF (Amendment) Act 2013 as unconstitutional as it was in contravention with the spirit of the devolution in the Constitution, something the judges agreed with. The Judges were however reasonable to rule that Parliament has 12 months to amend the law to align it with the Constitution.

Fundamentally, this alignment is to entrench CDF in Counties. Parliamentarians reactions have sent mixed signals. Some are saying they will work on ensuring they amend the law as the judges advised while others stating that they will challenge it at the Court of Appeal.

That CDF has made a great difference to Kenyans lives is not in doubt. The fund awards bursaries to children from poor families and supports communities to construct and equip clinics which significantly reduce their healthcare burden. In some areas, roads have been constructed to ease access to markets. However, the question is at which level of government should CDF sit at to ensure it is better managed?  This is a very healthy debate that all need to embrace with sober minds and action.

TISA’s case was born of the need to ensure that there is no overlap or contradiction in law. What CDF is in constituencies, is a mini-devolved fund, which to a degree usurps County functions. At the very least, having a unitary structure of disbursing the funds helps to better structure and attend to citizens. In its current form, it is very easy for projects to overlap, a perfect avenue to fleece the public.

Recently, MPs passed the law to strip Governors of the Excellency title and flag among others. As a result, some governors now perceive the recent ruling on CDF management as a great boost to further their agenda and actually want the fund scrapped and the monies allocated to them, a perfect opportunity to get back at the MPs.

Yet, all interests in matters CDF should be about the good work that it has done and seeking ways to seal loopholes for corruption. The proposed amendment should also see to it that more funds are allocated to projects than administration of the funds. All these interests have a place in ensuring that devolution works and citizens get value from their elected leaders.

Will MPs and Governors put their best foot forward and prioritize Wanjiku’s interest over their personal agendas? What kind of changes should be introduced to CDF management to cater to all the parties ‘visibility’ interests at the grassroots?

Time Ripe for Public Audit Law

Posted by on 24th February 2015

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Parliament is scheduled to debate the Public Audit Bill, 2014, setting stage for a new and critical framework to ensure accountability and transparency of public funds. Public Audit Bill is crucial in entrenching a system that will better ensure that public servants are better held to account through proactive measures that also ensure efficiency at the Auditor General’s office.

A quick glance of media reports including social media indicates questionable financial malpractices covering the entire spectrum in the public sector. This raises public interest concerns in the management of the public sector, specifically the approach to public finances oversight.

The Constitution, informed by past plunders including mega scandals like Anglo-Leasing and Goldenberg, enshrines various institutions to check the management of public funds. However, this seems not to be the case, over four years since the promulgation of the Constitution. Perhaps this calls for the strengthening of institutions and mechanisms of ensuring that early detection is made. A deterrent approach would help in checking the vice in good time.

The Public Audit Law should strengthen the Auditor General’s office to ensure there is continuous auditing and not seasonal. The Constitution in Article 229 (4 and 6) requires the Auditor General to report and confirm whether or not public money has been applied lawfully and in an effective way.

Ensuring managerial accountability is critical in offering leadership at the highest level. Chapter six of the Constitution expects high officer bearers to uphold certain principles and values and ensure integrity at all times.

Already, there are concerns about the Bill in its current form. The Auditor General has raised some issues in the Bill that seek to limit his ability to deliver. Dr. Edward Ouko wants MPs to make changes to clause 40 of the Bill on auditing national security organs, which he said is too prescriptive to the extent that it gags the auditor from discharging his mandate. He also wants changes to clause 20 of the Bill which proposes that he submits his budget to the Treasury for review and subsequent transmission to Parliament for approval. Dr. Ouko is of the view that reviews should be submitted to Parliament and not treasury.

However, two provisions stand out. One, civil servants will be cited personally in audit reports for loss of State funds. This is a good departure from the current where the Auditor-General only highlights misuse of State funds.  Secondly, the Bill grants the Auditor-General powers to recommend withholding of funds to a public entity for violation of the law. This is crucial in nipping the bud before more plunder is done and current questions can be answered sooner.

There could be many other areas that need amendments. It therefore calls upon all interested parties to read the Bill and propose measures that will ensure the law is beyond reproach. Kenyans need to seize this moment and actualize prudent public audits.

 

Access to Information Bill 2014

Posted by on 18th February 2015

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The Access to Information Bill 2014 will be presented to Parliament by Hon. Priscilla Nyokabi  this year as a private members Bill. This bill affects public access to information held by government institutions and bodies. All Interested people should therefore raise their concerns and interests.

Find it here to read and learn more Access to information Bill

Over the next two weeks, feel free to comment on it on our blog or Facebook page.  We will share your comments and concerns with her.

For How Long will Parliamentarians be deemed ‘Untouchable’?

Posted by on 13th February 2015

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Parliamentarians as the indirect people representatives are not above the law. However, their recent actions seem to assert they are! The National Assembly Speaker’s decision not to punish MPs who acted dishonorably during the Security Laws (Amendment) bill debate is essentially tolerance of status quo. The decision sends a wrong message on how to deal with difficult situations.

Apparently, the Parliamentarians only got a warning that such behavior will not be tolerated again. Some MPs had wanted to use the House Business Committee membership to remove the members who took part in the chaos as punishment for their actions.

When will our Parliamentarians start taking responsibility for their actions? Parliament is an honorable house. Its duties as per the Constitution lie at the core of public interest. With such a high value placed on the institution and the individuals who occupy it, Parliament must be accorded due respect.

Punishing the culpable MPs would have set a precedent and checked the possibility of a repeat of such behavior in the future. One laudable proposal is amending the standing orders which some legislators including Deputy Speaker Hon. Joyce Laboso alluded to. However, even in their current form, the standing orders have provisions and structures to effectively discipline Parliamentarians.

Parliament’s powers and privileges committee function is to ensure these elected leaders behave in an honorable manner both inside and outside Parliament. It has power to censure a member and ban them from attending some sittings. A ban of more than eight consecutive sittings would see a member loose his or her seat following which a by-election ensues.

Political parties are not immune either. They have been mum in the face of their members reckless behavior exhibited in the house. Some have lauded their colleagues for a job well done, meaning the behavior had the blessings of the parties. This is certainly unfortunate and sends the wrong message about the behavior political parties condone.

A lot of what ails Kenya is not the lack of laws or measures to curb things like graft, mismanagement or indiscipline. It is lack of enforcement. This has a direct implication on leadership and how it perceives and implements rules.

MPs are peoples’ representatives and their actions should be in line with what voters would deem to be public interest. It is highly unlikely that Kenyans of sound mind would be proud to be associated with appalling behavior. How can Kenyans censure their Parliamentarians behavior in the course of duty?

It should also be noted that MPs do not operate in a vacuum. In the space are institutions, laws and people who are observing them. The MPs did not have kind words for the Ethics and Anti-Corruption Commission (EACC) when it informed that their behavior breached chapter six. This move was tantamount to them saying they are above the Constitution.

Only being decisive at all times will Parliament show it committed to the rule of law and it is a dignified house of honorable members.

 

State Officers Must be Called to Order

Posted by on 30th January 2015

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Of late Parliamentarians have been acting in an undignified manner. Relevant Constitutional offices and institutions need to check Parliamentarians behavior to remind them the offices they hold require high integrity and good behavior at all times.

The recent behavior of Hon. Alfred Keter in which he used his office to abuse public officers and demand release of a truck owned by Hon. Sunjeev Birdi which had been lawfully held for lack of proper documentation is a case in point. The behavior of Senator Stephen Ntutu and MPs, Richard Kenta, Patrick Ntutu, Johana Ngeno and Korei Lemein was not only unfortunate but dishonorable in leading a protest which had been banned by the Cabinet Secretary for Interior.

The actions of these state officers are not in isolation. Many others have acted in similar manner in the past but nothing has been done to discipline them. They seem to believe that they are either above the law or the law does not apply to them. This is contrary to reality.

This breach of Chapter six of the Constitution and the Leadership and Integrity Act, 2012 cannot continue unabated. These state officers have an obligation to promote Constitutionalism as the public expects them to exercise their mandate in a manner befitting of the positions they hold.

Their behavior – as the Constitution Implementation Commission (CIC) has noted – needs to bring honor to the nation and dignity to the office and promote public confidence in its integrity. Unfortunately, their actions are contrary to these noble provisions.

Article 75(2) of the Constitution makes it mandatory that a state officer who contravenes the above provisions is subjected to applicable disciplinary procedures and may be dismissed or removed from office. If a state officer is dismissed or removed from office, they are disqualified from holding any other state office. Subjection to disciplinary procedures is not selective or elective but mandatory under the Constitution.

First, the Powers and Privileges Committees of Parliament must reign in their behavior. This committee oversees the behavior of MPs and Senators inside and outside Parliament and needs to be seen to be worthy the powers vested in it.

Secondly, the Ethics and Anti-Corruption Commission (EACC) must also come in strongly to investigate and recommend to the Director of Public Prosecutions (DPP) their prosecution for gross misconduct.

Thirdly, Political Parties who send these members to Parliament should also send the right message to the Country by disallowing and punishing its errant members.

It was on the basis of chapter six that in January 2012, the then Deputy Chief Justice Nancy Baraza was required to vacate office for allegedly acting in a manner inconsistent with her State office.

Chapter six requires state officers to maintain fidelity to the Constitution as it sets a high bar for the conduct of State officers. This is not a favor but an obligation which they must comply with and where they do not, disciplinary institutions must take action.

 

Allocations to Constituencies and Counties call for your Participation

Posted by on 23rd January 2015

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In his book ‘Episodes; From an MP’s Diary’, Sen. Eng. Muriuki Karue shares his journey on how development projects initiated through harambees did not see the light of day. The government never saw much need to support projects like classrooms and health centres to support the welfare of the people. This became his agenda when he joined politics as an MP in 1997.

Considered the father of the Constituency Development Fund (CDF) which came to fruition in 2003, the then MP, now Senator for Nyandarua County felt that setting aside five percent of government revenue would help ensure such projects are undertaken and the elected leaders can tangibly contribute the welfare of the electorate.

This year will be the 12th, since CDF has been disbursed to Constituencies. When marking ten years of its existence, the CDF Board authored that a total of sh106, 906, 102, 651 had been disbursed from 2003 to 2013 in the then 210 constituencies.

Each year, allocations increased. In the financial year 2013-2014, a total of sh21,973,899,997 was allocated while in this financial year 2014-2015, sh33 billion has been allocated. It is evident that the trend of increasing is not only remarkable but critical to alleviating poverty, ignorance and disease, the three core problem Kenya embarked on at independence.

Today with the position of Women Representatives, some more allocations to counties are on the way. The passage of the Affirmative Action Social Development Bill, will see the 47 Women Reps secure Sh2.03 billion from Treasury for social empowerment in their counties. The empowerment ranges from drug abuse control among the youth to entrepreneurial skills empowerment to women and the youth.

The kitty will be implemented if the regulations to guide the implementation of the Fund are approved by the Committee on Delegated Legislation in the National Assembly. The Women MPs will be patrons of the fund with each County receiving about Sh40 million each and about Sh7 million per constituency.

It is clear that allocations to MPs in this financial year will be over sh35 billion, a colossal amount that should go into good use because it is taxpayers money. It is only fair that those who pay these taxes not only have a say in how the funds are used but also participate in the planning process.

Public participation is not only a value in the Constitution but also a principle in governance which needs to take root. The funds should be spent according to the electorate’s needs and priorities. Further, the public must carry out social audits of the funds usage to establish quality.

Citizens have the duty to engage in line with Article 3 of the Constitution. As Parliament re-opens, take time to suggest how you want your taxes to be spent. Please use the hash-tag #BungeKE2015 and your views will be presented to Parliament. You have until 2 February 2015 to express yourself.

Let us engage Parliament more in 2015

Posted by on 15th January 2015

Categories: Uncategorized

Recent misbehavior by Parliamentarians within the precincts of Parliament and in public have brought to the fore questions about their actual roles and responsibilities. As representatives of the people in Parliament, Parliamentarians activity in many ways should reflect the pulse of the nation.

Parliament – Senate and National Assembly – performs representative, oversight and legislative functions which define and distribute the national cake to all. These functions being pivotal, mandate the people to engage more with the representatives they elected to ensure that these roles are skillfully and diligently executed.

The legislative role is about passing laws and amending existing laws to ensure they conform to today’s challenges and opportunities and are also progressive. 2015 marks the fifth year of the implementation of the Constitution and the period until August 27th, 2015 will mark a heavy legislative calendar in passing laws to implement it. In 2014, the National Assembly extended the period of passing some Bills meaning that they will be lumped together with those due this year, Bills to be passed.

There is a limit to postponing these Bills. For instance, the two thirds gender principle in Article 81 (b) of the Constitution must be implemented by August 27th as the Supreme Court Ruled in December 2012. Another critical Bill to be passed will be on public audit which will empower the Auditor General. In addition, the access to information law is crucial.

The representative role of Parliament means that they need to highlight and defend their employers; the people. Through question time, statements and motion, Parliamentarians put the interests of the people to the Executive arm of government. It is also supposed to challenge Executive that do not conform to the Constitution and the people’s reality.

In their oversight role, Parliamentarians check national budgetary allocations, the financial probity and general compliance of laws in all government departments. Oversight also includes submitting memoranda on Public appointments and petitions on issues and individuals, people have concerns about. The nomination of Joseph Boinett as the Inspector General of Police will be the first when it re-opens.

In addition, Kenyan Parliamentarians, also oversee special funds like the Constituency Development Funds (CDF) and the Uwezo Fund. A third Fund is set to be introduced this year – the Affirmative Action Social Development Fund.

Consequently, the electorate should take a pro-active role in trying to influence what Parliamentarians prioritize this year. This is key to promoting a people-centered Parliamentary agenda. Parliament re-opens in mid-February; Senate – February 10th and National Assembly, February 14th.

Over the next the two weeks, Mzalendo gives you an opportunity to present views on what Parliament should discuss when they re-open. The views will then be collated and presented to Parliament just before it re-opens. Feel free to post your comment on our blog, Facebook page or Twitter using the hashtag #BungeKE2015. Over to you!

 

Feedback from Uganda on the behavior of MPs during the Security Laws (Amendment) Bill debate

Posted by on 13th January 2015

Categories: Uncategorized

I am living in Uganda and like many others from around the World, I have been always watching and enjoying the Kenya Parliament debates held in both the Senate and National Assembly. I wish to state that the Kenya Country Constitution has been observed by many outside Kenya as one of the best governing documents not only within the Commonwealth but also in Africa. Many people cherish that Constitution and have been waiting to see how that Good Document will be implemented.

While watching the Kenya Parliament debate relayed live via the KBC TV held on December 18, 2014. It was very shocking to see what happened within the Plenary. Although I am not a Kenyan, I felt tears coming out of my eyes. I could not believe what I was seeing. This is because all Kenya MPs, do always rise up not only with facts but also with clear contributions. Many people have been learning from the experience and knowledge always provided by the Kenya MPs. I hope the problem will be fixed..

Charles Kizito

Why Eight Clauses of the Security Laws (Amendment) Act were Suspended

Posted by on 7th January 2015

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On January 2nd 2015, the High Court ruled regarding a petition tabled by the CORD Coalition and the Kenya Human Rights Commission (KHRC) questioning the legality of the process by which The Security Laws (Amendment) Act 2014 and the constitutionality of some of its clauses. They sought orders to have these sections suspended pending determination of a full hearing.

Judge George Odunga did not have kind words for Speaker Muturi as he said “… if the process was shambolic as it is alleged, it would not matter who caused the chaos since Standing Order 98 places the duty of ensuring that order is maintained in the House squarely on the Speaker which entails ensuring that pursuant to Standing Order 104 every member is seated at all times when in the Chamber except when passing to and from his seat or when speaking.”

The Judge declared that the issues raised by the petitioners were weighty constitutional issues which required to be investigated by the Court. He added that issues raised substantial questions of law and also affected fundamental freedoms enshrined in the Bill of Rights which could be infringed by the implementation of certain sections. Consequently, he stated ‘what is at stake is the balancing of the need to secure the country on one hand and the protection of the Bill of Rights on the other both of which the State is enjoined to attain.’

In ruling, Judge Odunga used “the guided missile” approach to target only the offensive parts of the Act. The court decided to suspend only those provisions which disclose a danger to life and limb or imminent danger to the Bill of Rights at that very moment by way of conservatory orders. However, this does not amount to a determination that those provisions are unconstitutional.

Clauses in The Security Laws (Amendment) Act, No 19 of 2014 suspended pending the hearing and determination of these petitions were:

(1) Clause 12 which inserted section 66A to the Penal Code.

(2) Clause 16 which inserted section 42A to the Criminal Procedure Code.

(3) Clause 26 which inserted section 20A to the Evidence Act.

(4) Clause 29 which inserted section 59A to the Evidence Act.

(5) Clause 48 which inserted section 16A to The Refugees Act.

(6) Clause 56 which repealed and substituted Part V of The National Intelligence Service Act.

(7) Clause 58 which amended Section 65 of the National Intelligence Service Act by deleting the word “Parliament” and substituting therefore the words “National Assembly”.

(8) Clause 64 to the extent that it introduces sections 30A and 30F of The Prevention of Terrorism Act.

This was because:

Clause 12 of the Act introduces a Clause which limits the freedom of expression and freedom of the media and imposes a hefty fine of Kshs 5,000,000 for the offenders or 3 years in prison or both. If implemented, there is imminent danger of the offenders losing their liberty.

Clause 16 has the effect of denying the accused person evidence sought to be presented against him until just before the hearing. It would render the process unfair.

Clause 26 of the Act introduced an admission of statement by consent in criminal trials. This amendment is objected as contravening Article 50(2) (l) with respect to self-incriminating evidence.

Clause 29 seems to introduce summary procedure to criminal proceedings by introducing proof by way of notice though it is called agreement. Similar considerations as above hence suspended.

Clause 56 introduced new Part V dealing with “special operations” which are operations meant to neutralize threats against national security. The provisions thereunder then proceed to deal with what are called “covert operations”. It is contended that this provision is likely to take the Country back to the pre-2010 Constitution dark days. The current Constitution by way of a referendum, did intend to have a break from the past.

Clause 58 seeks to replace “Parliament” with “National Assembly” effectively removing the Senate from playing oversight role on the National Intelligence Service. This provision is objected to as having been inserted without recourse to the Senate.

Clause 64 introduced an offence of publication of offending material which is defined as publication or statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism. Government is obliged to take all lawful measures to nip acts of terrorism and such measures ought to be supported by Kenyans of all walks of life. Such moves however must pass Constitutional and legal pedestal.

 

 

 

 

 

 

 

The conservatory orders on the Security Laws Amendment Act

Posted by on 5th January 2015

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Please find the conservatory order suspending eight clauses of the Security (Amendment) Act 2014 here Conservatory Order (Security Act) Petition No. 628 and 630 of 2014