Citing the Constitution, the Public Finance Act, the Public Finance Management Act, MP John Mbadi Ng’ongo, stated that the National Assembly had a “constitutional responsibility under Article 95(4)(c) to exercise oversight over national revenue and its expenditure.” He went on further to state that the National Assembly was “required by law under the Public Finance Management Act Section 7(b) to monitor adherence by Parliament, the Judiciary and the national Government and its entities to the principles of public finance” and ensure that public money was being, “used in a prudent and responsible way and that the national Government expenditure on wages and benefits for its public officers should not exceed a percentage of the national Government revenue as prescribed by regulations.”

The MP has asked that the Budget and Appropriations Committee table the salaries and allowances of all members of the constitutional commissions, including their sitting allowances and rates per sitting. State how many vehicles are allocated to each commissioner and the monthly cost of running the vehicles (including fuel and maintenance costs per Commissioner); and finally to explain the criteria used to arrive at the existing salaries and allowances of members of constitutional commissions.

He asked further that the Statement be delivered as soon as possible to the House so that Members of the National Assembly could “better exercise oversight in the ongoing effort to bring down the wage bill.” He added that the house was going to help the President, “bring down the cost of running the Government.” Stating, “Those who thought that it was just an empty talk should now realize that this is the beginning of a long journey to ensuring that we rationalize public expenditure.”

When the point of order was raised the chairperson of the Budget and Appropriations Committee, MP Mutava Musyimi, indicated that a statement could be ready within a week or within a months’ time at the latest. It turned out a week was all that was required, according to a report in Business Daily; the Committee has recommended that budgets of the Commissions with the exception of the Judiciary Service Commission and the Parliamentary Service Commission be cut by 30 per cent (full story here).

While the information on Commissioners’ salaries and allowances is information that needs to be in the public sphere and should be subject of public debate. In the current context – i.e. the contention between the Members of the National Assembly and the Salaries and Remuneration Commission over salaries and benefits one can’t help but feel like this is an attack on the independence of commissioners a kind of tit for tat. And shouldn’t the above logic be applied to the salaries of the members of the National Assembly?

So while the law is clear on the Rome Statute and the ICC, the government’s position is not. In fact the government’s position on the ICC cases seems at best mixed. On one hand the government gives the message that Kenya will cooperate with the ICC on the cases and on the other hand it continually mounts legal, logistical and diplomatic challenges to the jurisdiction of the ICC over the Kenya cases.

The government has spent large amounts of time and state resources on shuttle diplomacy continentally and globally to get the cases dropped.

In May the government carried out extensive lobbying activities the with African Union states both before and during the African Union summit. The result, on May 23 the African Union (AU) called for the ICC to drop charges against both the President and his Deputy with members of the AU threatening to pull of Rome Statue if the cases are not dropped. In the same month the government unsuccessfully asked the U.N. Security Council to end International Criminal Court proceedings against the President and Deputy. (Incidentally there is an interesting article on this in the East African “Kenya’s lose-lose strategy even if the African Union has its way”)

While we as Kenyans are not united on whether or not the ICC should prosecute the cases against the President and his Deputy it would be good to have a government position on the same.

Last week Ugunja MP, James Wadayi, asked that the chair person of the National Assembly’s Justice and Legal Affairs Committee clarify the government’s position on ICC cases amongst the issues he asked to be clarified:

• The position of the Government of the Republic of Kenya on its co-operation with the International Criminal Court (ICC) as obligated by the Rome Statute.
• The position of the Government on certain Statements that have been attributed to the Government’s representative to the United Nations calling for the termination of the criminal cases against three Kenyans at the ICC; despite the fact that the United Nations Security Council has no power to compel the ICC to terminate charges
• The position of the Government on the Resolution of the African Union, which called for the referral of the Kenyan cases at the ICC back to Kenya.
• The capacity and preparedness of the Government to investigate and prosecute the three ICC cases if and when they are referred back to Kenya, bearing in mind that there has been no single successful prosecution of cases related to the post-election violence in this country.
• If there is any guarantee that in the event that the cases are referred back to Kenya, the hapless victims of post- election violence stand any chance of getting justice for those heinous crimes.”

It will be interesting to see what the Committee comes back with. In any event we will be watching.

“The Clerk of the National Assembly Justin Bundi has issued an ultimatum to journalists to vacate Parliament’s media centre. The Clerk has also ordered that journalists will be “invited” to Parliament as and when they are needed. He said the media centre will host parliamentary committees. “We’re not creating residence for journalists in Parliament,” said Mr Bundi, shortly after he issued the ultimatum. The implication is that the parliamentary orderlies have the power to eject journalists from the media centre anytime a committee decides to meet in the venue.”

According to the report the Clerk’s ultimatum comes a week after MP and Leader of the Majority, Aden Duale, warned that media would be ‘taught a lesson’ for its coverage of the MPs demands for higher salaries.

One wonders how this pronouncement fits in with the constitution which requires an open, transparent parliament and specifically prohibits exclusion of the media from parliamentary sittings save for exceptional circumstances.

Article 118 of the constitution clearly states “Parliament shall— (a) conduct its business in an open manner, and its sittings and those of its committees shall be open to the public; and (b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees” and more specifically that, “Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.”

Barring or limiting the media seems to be in direct contravention of Article 118 (2) of the constitution and will necessarily lessen public participation in legislative process and business of parliament as the media is the primary through which the public gains knowledge of the goings on in parliament.

Not to mention that less ‘openness’ on the part of National Assembly, increases the likelihood of corruption, embezzlement of public funds, basically a less accountable National Assembly. The rule of law and the openness of government, which are typical of democracy, limit not only corruption but also the ineffective management or outright squandering of natural or other resources by untouchable government.

And if this barring/limiting media access to National Assembly is indeed retaliation for the media’s coverage of the MPs salary deeper questions may need to be asked about the kind National Assembly we want representing us.

In his petition the MP asks for “for the removal of Sarah Jepkemboi Chumo Serem as the Chairperson of the Salaries and Remuneration Commission (SRC) and the removal of Daniel Ogutu, Sellestine Kiuluku, Serah Kinyua, Retired Brig. Samuel Ndururi, Isaiah Kubai,Jacqueline Mugo, Ann Elizabeth Owuor, Peter Oloo Aringo, Jason Namasake, Joseph Kinyua, Titus Ndambuki and Wanjuki Muchemi as members of the SRC.”

The reasons the South Igembe MP gives for his petition to remove the SRC chair and the commissioners is alleged: violation of the Constitution, violation of the law, gross misconduct in the performance of their functions; and serious incompetence in the performance of their duties.

Among those who supported the petition were MPs Jakoyo Midiwo, Aden Duale, Jimmy Angwenyi, Gladys Nyasuna, Adan Keynan.

It seems that MPs have forgotten the reason behind having an independent commission determine the salaries for state officials. In fact the MPs are doing now, i.e. demanding higher salaries as their first order of business, then threatening the independent body that is mandated to set the salaries of State Officers, is the precise reason why it is imperative that their salaries be determined by an independent body.

If determination of the MPs salaries were left up to the MPs, or a body beholden to MPs, as in the old dispensation, the debate over MPs salaries would have been a moot one or at the very least a one-sided one. Going from past history it would have been no trouble to garner a majority vote on the floor to increase MPs salaries. As it is only one MP, Muthomi Njuki, has spoken against the members bid to have their salaries increased.

The full text of the petition for the removal of the Salaries and remuneration Commission can be read here.

In the meantime since the Speaker has allowed the petition, and parliament has debated and approved it. The petition has now been forwarded to the one of parliament’s departmental committees. The committee will now prepare and present a report on the issue in 14 days. If the National Assembly accepts the report, the Speaker will the forward the recommendations made in the report to the President, who has the option to suspend the above mentioned members of the SRC and while their conduct is investigated by a tribunal.

We’ll be watching…

The protests of old were are fraught with violence tear gas thrown, running battles between police and protestors. The Occupy Parliament protest in comparison seemed well organised and conspicuously unaggressive: the pigs spray painted with the MPs names and the moniker MPigs signifying the MPs greed, It was however successful in delivering the point, it’s unreasonable for MPs to demand a higher pay when they already a salary several times greater than the average Kenyan.

However despite the fact that Occupy Parliament was a planned peaceful protest with the requisite permits and permissions granted, some of the protestors were subjected to police violence. The police fired tear gas, sprayed the protestors with water cannons and television footage showed a police officer beating up a protester. So while the protest was a legal one, it seems the police did not get the memo.

The right to protest is an indispensible part of a civil and democratic society, and is a legal and valid way to express dissent. The right is articulated in Article 37 of the constitution on assembly, demonstration, picketing and petition. The Article states, “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.”

Police Spokesman Charles Owino, while condemning the protestors has assured the public that that the police officers involved attacking the protestors would be held to account stating “They will have to say who gave them the orders or take individual responsibility for their actions.”

We’ll be watching.

Meanwhile MP Aden Duale has threaten to sue the protestors for associating the MPs with pigs (read story here).

CDF was created to encourage development and ensure community participation in development at constituency. By bypassing central bureaucracies and channel funding directly to community level it was thought that the CDF would allow MPs to respond directly to the developmental demands of and from their constituents.

Whether this has been achieved is questionable. A bit over 70 billion shillings has been allocated to CDF since its inception with varying results as far as tangible development is concerned. How well the CDF was used in the past varied from constituency to constituency, however one defining feature remained MPs had substantial control over the distribution and application of the funds

MPs involvement in the administration of CDF in the old dispensation was problematic to say the least, from accusations that MPs handpicked members of the CDF boards from among their cronies, and the fact the how the CDF was spent was heavily dependent on the MP with little or no input from the constituents. In many instances CDF failed to reach/benefit those who needed it most. Add to this the lack of transparency, accountability, and the billions lost through corruption involving CDF, strong arguments can be made for changing the way in which CDF is administered or scrapping it altogether.

The new regulations in the CDF Act 2013 change the role of MPs with regard to the administration of the CDF. Under the Act, MPs can no longer allocate projects, MP no longer appoint the CDF board, the constituents themselves to propose membership to CDF committee, and the projects to which CDF is allocated are decided on a priority basis.

In addition administration of CDF has been effectively transferred from MPs to a CDF official, who will act as the Authority to Incur Expenditure (AIE) and who will be accountable for any loss or embezzlement of the money. MPs will still sit on committees CDF but only as ex-official members exercising only the oversight role on projects.

It should be noted that CIC, the body in charge of the constitutional implementation has voiced its concerned with the unconstitutionality of the act and the existence of CDF. CDF is not provided for by the constitution under a devolved system of government one questions the need for CDF, isn’t the devolved system of government supposed to bring both finances and services closer to the people making the CDF redundant. – Read the CIC’s statement on the unconstitutionality of the CDF Act 2013 here.

Nevertheless MPs are/ and will be fighting to retain control of the CDF fund, Thika MP Alice Nganga, Nyaribari Chache MP Chris Bichage and Gwassi MP John Mbadi have voiced their intention to fight the new CDF regulations. MP Alice Nganga argued:

“The Kenyans who elected me don’t come to this board demanding for education bursaries, money to repair health centres… they know Alice is the one we elected and they don’t want to hear anything else,” he said. Members of Parliament have until May 13 to organise the election of their Constituency Development Fund (CDF) committees which will oversee projects to be prioritised in their areas.

The Speaker Justin Muturi advised MPs unhappy with the CDF law to propose amendments “If you feel so strongly about this, you have the power to do something about it because this law is a creature of this House, you can make it better.”

What do you think should MPs run the CDF?

Before the election the Salaries and Remuneration Commission revised the salaries of the new Members of the National Assembly downwards. And it seems that for most of the period since the new Members were sworn in they have been fighting to get a salaries raised to the previous levels i.e. that of some of the highest paid MPs in the world.

In making a case for increased salary on the floor of the house the MP for Kitutu Chache North Jimmy Angwenyi argued that Article 160 of the constitution prevents the SRC from reviewing salaries of the MPs downward stating, “we [MPs] are being bashed left, right and centre by everybody that we are seeking increment of our salaries. You know and everybody reasonable knows that we are not seeking an increase in our salaries. We are only saying that let us maintain our salaries at the level that was obtaining in the last Parliament until the Salaries and Remuneration Commission (SRC) brings a legal order to change our salaries and, in fact, not to change it adversely against us. This is because the Constitution forbids that. Now, Article 160 of the Constitution states clearly that you cannot adjust the salary of a State officer to his or her disadvantage.”

Actually Article 160 of the constitution is quite specific to judiciary and states specifically “the remuneration and benefits payable to, or in respect of, a judge shall not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the lifetime of that retired judge.” The Article on construction and intention does not apply to all State Officers.

Another member Kamama Asman Abongotum made the argument that Salaries can never be adjusted downward stating that better remunerated MPs would do a better job, “Salaries all over the world can never be on a downward trajectory. They are always on an upward trajectory unless you are in a failed state like Afghanistan, Somalia and Syria. Since Kenya has a stable economy, let us not joke about performance. Let us pay Members of Parliament very well, so that they can deliver up to midnight, just the way we delivered in the last Parliament. Looking at the current remuneration package for Members of Parliament, one realises that the members of staff of this Assembly have better terms than parliamentarians. We want them to have those better terms but we want parliamentarians to be given their rightful share as enshrined in the Constitution and as recommended by the Akiwumi Commission and the Cocker Commission.”

Not surprisingly no MP has made the argument for accepting the SRC’s new salary scale for MPs. If the MPs got their salaries returned to the level paid the former house they would receive almost Sh1 million per month. One could quibble about the  xact shilling amount that MPs should earn however the bigger question is do the MPs deserve to have a higher salary that the SRC prescribed basic salary of Sh532,500 per month?

Thoughts?

After all the delays 16 out of 18 nominations for the post of Cabinet Secretary have been made leaving only two positions (Interior & Co-ordination of National Government and Labour, Social Security & Services) to be announced. If the Cabinet nominees make it through the appointment process it will be a cabinet of mostly new faces and proportionally more women than there have been in previous cabinets.

6 out of the 18 Cabinet Secretary nominees are women and the nominees are mostly new faces with the exception of nominee of the Cabinet Secretary for Mining, Najib Balala, who has previously run 4 Ministries and is a career politician. And nominee for Cabinet Secretary for Land, Housing and Urban Development, Charity Ngilu, who was Member of Parliament for Kitui Central Constituency for 20 years and is the former Minister of Water, Irrigation as well as a former Minister of Health. One wonders if their record of performance in the running of these Ministries will come up during the vetting process.

Kudos to the new administration for the nomination of women, and on the new faces however the issue has been raised on how representative of the country the Cabinet nominees are. Section 130 (2) of the constitution requires the composition of the National Executive, “reflect the regional and ethnic diversity of the people of Kenya” and this is where is the nominations have drawn most criticism. According to the Standard the MPs from “the Maasai and Samburu communities and Deputy Minority leader in the National Assembly Jakoyo Midiwo, said the Assembly would reject the names unless President Uhuru Kenyatta revises the list.”

This is of course significant, why? Unlike before when the members of the cabinet were unilaterally appointed by the President, this time parliament as to approve the list of nominees before the nominees can be appointed. So nomination is just the first stage in the appointment of Cabinet secretaries; the Cabinet nominees still have to be vetted by the Parliamentary Committee on Appointments and the public, in keeping with the section 118 (1) (b) of the constitution that requires Parliament to facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

The speaker of the National Assembly Speaker Justin Muturi has confirmed that the public will be consulted on suitability of Cabinet nominees. Public hearings on the nominees for Cabinet Secretaries will take place over a seven-day period at a venue in Nairobi that is yet to be announced. “The Speaker shall give a communication from the chair forwarding the names to the Committee on Appointments, which will issue a notice through the Clerk of the National Assembly inviting members of the public to give their views on the proposed names.”

What are your thoughts on the Cabinet Secretary nominees?

Find the Profiles for the nominees here – http://www.scribd.com/doc/137564995/Cabinet-Secretaries-Nominees-CVs  and here ­- http://www.scribd.com/doc/137909381/Cabinet-Secretary-Nominees-CV-s-Part-2

There was no road map of how these promises will be achieved, probably because of time limitations, however the promises are significant and if kept would drastically change the lives of Kenyans for the better if kept. So here’s what to look out for:

Transforming Kenya in to a middle income country within the next generation: According to the World Bank Kenya is currently a low income country – the country’s gross national income stands at $1,025 or less. The government intends to within 25 years, a generation, transform the country into a middle income one (gross national income $1,026 – $4,035). While this may seem implausible it is not impossible. In 2010 Ghana and Zambia were upgraded from low income status to middle income status.

Prudent management of the public finances including the wage bill: Financially we are not doing great, the country’s debt is growing, the treasury recently asked the IMF for a waiver on payment of loans for the second time in the six months, the government wage bill is unsustainable, the cost of living is really high and yet MPs and Governors are still pushing for higher salaries.

In his speech the President spoke specifically to these issues including the need to keep the public wage ‘in check’ to reduce the recurrent expenditure.  The President stated specifically that, “all arms of Government must set the example and lead the way in bringing this wage bill down”

Hopefully this promise includes a commitment to sticking to the remuneration guidelines for MPs, Governors and Senators.

An industrial revolution? The potential for one certainly exists we have a large more or less educated work force, geographically we are in a great position to be an export hub, regional integration gives us cheap access to markets within East Africa however infrastructure issues, electricity issues, corruption issues, and poor economic policies have prevented us having an industrial revolution.

In his speech the President highlighted the need to address the above stating, “We must establish a first class logistics hub, covering transport, roads, railways, waterways, Our overarching goal is the transformation of our economy, so that our exports compete across the world and drive the growth necessary to create jobs for our youth and lift 10 million of our brothers and sisters out of poverty by 2017.”

This included promises of the establishing a logistics hub, modernising agriculture, diversifying exports, creating new products, getting what we paid for procurement wise (see: BVR kits),  creating a friendly investment/business environment, expanding markets and creating regional partnerships, investing more in people, and reducing the cost of living.

Transparency and Corruption: It’s no secret that we have serious issues with transparency the constitution goes some way to rectifying the transparency issue and has worked to make appointment and recruitment process for state officers more transparent. However the constitution is not self implementing document. Despite its provision on access to information on government processes remain as opaque as ever let’s take for instance tendering and procurement processes. Accountability and corruption have also been major issues, case in point though we have had several cases in which high level have been implicated there have been few prosecutions of said people.

The new President is his speech promised to “run an honest and transparent government, with public services that are open and accountable to the people who use” and to “work with the Judiciary in fast tracking and deepening the reforms that are in progress to secure access to justice for all Kenyans and promote a society where every person enjoys equal protection of the law.”

We’ll be watching.

To quote him, his government, “has committed itself to delivering on the promise of free laptops for our standard one children starting next year. Some have said that this is too ambitious. I say that we cannot afford to leave any of our children without tools to compete in the digital age. Yes, our ambition is great but the scale of that ambition is the only one sufficient to meet the scale of our nation’s challenge. As such, I call upon both Houses to work with me to ensure that in future, the laptops we provide are assembled locally.”

By the President’s own admission the plan, to begin providing every standard one child with a laptop next year, is an ambitious one however it should be noted that the idea is not a novel one. A few years ago the United Nations Development Programme backed a one laptop per child project. In 2012 Rwanda launched a one laptop per child programme. In 2010 a partnership between One Laptop per Child and the East African Community was formed with the aim to deliver 30 million laptops in the region by 2015.

However the question for Kenya is that though that the scale of the ambition may be sufficient to meet the scale of the nation’s challenge, can we afford it and is it sustainable?

On the issue of affordability, as a country we are 1.8 trillion shillings in debt, the Treasury recently ask the International Monetary Fund to waive public debt for the second time in six months. 1.2 million children start standard one every year, according to Google the cheapest laptops cost about USD$100. So giving every standard one child a laptop would cost the government USD $12 million, that’s almost 10 billion shillings next year alone.

Then there is the issue of electricity need to charge the laptops. It’s a fact that even in the country’s Metropolis, is electricity which is necessary to charge the laptops, is sporadic at best, and in some rural areas there is no electricity at all, unless the government is planning to correct this by next year, there is going to be a big problem charging the laptops. Of course the laptops could be solar charged, however enough solar panels, and convertors to charge to laptops for 1.2 million children would increase the price of laptops exponentially.

Apart from affordability and sustainability issues there are issues of priorities nationally, but even just within the education sector given our context and educational needs, is the provision of laptops for every standard one child really a priority. Public education has major quality issues, which the provision of laptops to standard one children will not rectify, take for instance the teacher student ratio.

So while the ambition to provide every standard one child with a laptop is laudable, maybe it needs to be rethought.