Entries from November 19th, 2011

Supreme Court and (No) Election Date

Posted by on 19th November 2011

Categories: Uncategorized

On Tuesday this week Chief Justice and President of the Supreme Court, Willy Mutunga, declared that the Supreme Court declined to give an opinion with regard to the date of the next election. The Supreme Court reserved its reasons, which will be given in a ruling upon notice to the parties.
In the mean time the Supreme Court has passed the case down to the High Court and requested that it be dealt with expeditiously. After more than a month of waiting for the Supreme Court’s determination on the date of the next election, the Court’s decision to not to give its opinion on the said date is underwhelming. However the decision may not be surprising given the constitutional mandate of the court.
According to Article 163 (3) (a) of the constitution the Supreme Court has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President under Article 140. A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. The election date issue is not such a matter and therefore does not trigger the Supreme Court’s exclusive original jurisdiction.

Though the Supreme Court can make rules for the exercise of its jurisdiction, Article 163 (8), it appears the constitution intends that the Supreme Court be an appellate court or court of last resort. Article 163 (3) (b) states that the Supreme Count has appellate jurisdiction i.e. the power to review and change decisions from the Court of Appeal and any other court or tribunal. The Supreme Court can hear appeals in any case involving the interpretation or application of the Constitution. The Supreme Court can also hear appeals cases in which it, or the Court of Appeal, certifies is matter of general public importance, Article 163 (4).

As far as advisory opinions go, constitutionally the Supreme Court may give an advisory opinion at the request of the government or state organ with respect to any matter concerning county governments. Though the issue on the date of the next election could seen as a matter concerning county government, a decision on the date of county election would on be problematic and it is probably wise of the Supreme Court not to go down this route i.e. would the opinion apply only county government elections? What about the fact that constitution provides for county and national elections to be held on the same day? Would the national government be bound by an opinion on county government elections?

The case now rests with High Court that according to Article 165 (3) (d) of the constitution has “jurisdiction to hear any question respecting the interpretation of the Constitution”. Since the matter has been sent to the High Court that also has to make a decision it would be interesting to see the content of the reserved opinion.

In my opinion since the Supreme Court can make rules for the exercise of its jurisdiction and Chief Justice stated that the court had jurisdiction over the matter, the finality of a Supreme court opinion on the date of the next election would have put the matter to rest considering time is of the essence.

On Syokimau

Posted by on 18th November 2011

Categories: Uncategorized

Yesterday the High Court issued orders temporarily halting the demolition of homes in Syokimau. The demolitions that began on Sunday target roughly 200 homes built on the land owned by Kenya Airports Authority.

Ownership of the 1000 plus acres of land in Syokimau is disputed. In parliament MPs Wavinya Ndeti (Kathiani) and Ferdinand Waititu (Embakasi) tabled ownership title documents belonging to the home owners issued by the Ministry of Lands, and rate payments made by said owners to Mavuko Municipal Council.

The Minister for Lands, James Orengo, has disputed the legality of the title documents issued from his Ministry saying the ownership documents were obtained fraudulently and are therefore not valid. The Minister for Lands has stated that in, “many areas especially in Nairobi there have been cases where MPs have used their supporters to invade public land and which they have subdivided and sold to the public. The group purporting to own the land has no title. Their papers of ownership are pure fraud.”

The Syokimau demolitions are a complex story with many actors; the buyers/homeowners, the property agents, the sellers of the land, the Ministry of Lands, the Ministry of Transport, Kenya Airports Authority, Nairobi City Council, Mavuko Municipal Council, banks/lenders, and Members of the Parliament and there is no doubt each of the actors can be apportioned some of the blame.

The Syokimau demolitions are not the first of their kind, there have been several instances of demolition of both domestic and commercial properties under very similar circumstances to those in the Syokimau dispute. These demolitions raise several question regarding:

  • The policies and regulations that govern land allocation and subdivision, sale of land, land transfers and building approval.
  • The responsibility and accountability of actors both public and private (the Ministry of Lands, the city and municipal councils, the buyers, sellers, agents, banks, lawyers) in land transactions.
  • The veracity of the records on land kept by the Ministry of Lands, and City and Municipal Councils
  • The process of eviction, surely there is a more humane process of evicting people from public land?
  • Whether the MPs who participate in fraudulent land allocations be held to account?

There’s no easy answer to the questions brought up by the Syokimau demolitions but unless something is done to create concrete and coherent policies and processes with regard to land transactions we can definitely expect to see more evictions.

290 constituencies in 4 months

Posted by on 14th November 2011

Categories: Uncategorized

Despite threats by a section of MPs to block parliamentary approval of the nominees of the Independent Electoral and Boundaries Commission (IEBC) Parliament unanimously endorsed the nine candidates. This week the President assented to the appointment of IEBC commissioners – Ahmed Issack Hassan (Chairperson), Dr. Yusuf Nzibo, Thomas Letangule, Abdullahi M. Sharawe, Mohamed Alawi, Lilian Bokeeye Mahiri-Zaja, Joyce Muthoni Wangai, Bwire Onyango, and Kule Galma Godana. So what next?

According to the fifth schedule of the IEBC Act 2011, the IEBC will be charged with the delimitation of the 290 constituencies created by the constitution. Before its disbandment the Interim Independent Boundaries Review Commission complied a much constested report delianating the new constituencies the report was debated but not fully adopted by parliament.

  • According to the IEBC Act the Commission is required to, “resolve all issues arising from the first review relating to the delimitation of boundaries of constituencies and wards and publish its final report within a period of four months from the date of its appointment.”
    • The Commission is supposed to prepare and publish a preliminary report outlining – the proposed delimitation of boundaries for constituencies and wards, as well as the specific geographical and demographical details of the delimitation.
    • The Commission is then required to make its preliminary report available to the public for a period of twenty-one days and invite representations from the public on the proposals contained in its report.
    • The Commission will then have fourteen days to review the proposed delimitation of boundaries taking into account the views received and submit a revised preliminary report of proposed boundaries to the Parliamentary Committee responsible for matters relating to the commission.
    • The Parliamentary Committee will then within fourteen days table the revised preliminary report before the National Assembly together with its recommendations. The National Assembly will then have seven days to consider the revised report and forward its resolutions to the Commission.
    • Finally the Commission will prepare and submit its final report for publication in the Gazette.

If the final report on the delimitation of the constituencies is to be submitted within the next four months i.e. April 2011 the IEBC will be working within very tight timelines. It will be interesting to see how the commission resolves the tensions between:

  1. The requirement that the commission use as a reference document “enumerated national census figures and not projected figures” and the fact that the results of the national census were cancelled for some areas and new census is still to take place, and
  2. The one man one vote principle and the constitutional requirement of proportionality, and demographic equality enshrined in Article 89 (5-7) of the constitution which requires that “The boundaries of each constituency be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota”.

Should the Parliamentary Service Commission be disbanded?

Posted by on 12th November 2011

Categories: Uncategorized

The ten-member Parliamentary Service Commission is a constitutionally mandated commission responsible for the administration of Parliament i.e. providing services and facilities to ensure effective and efficient running of parliament, preparing parliamentary expenditure budgets and estimates, constituting offices in the parliamentary services, as well as appointing and supervising office holders.

Speaker Kenneth Marende (Chairperson), Vice President Kalonzo Musyoka, Clerk of the National Assembly Patrick Gichohi, and MPs Chris Okemo (Nambale), Joseph Lekuton (Laisamis), Aluoch Olago (Kisumu Town), Peter Mungai (Limuru), Zakayo Cheruiyot (Kuresoi), Jamleck Kamau (Kigumo) and Aden Keynan (Wajir West) sit on the current commission.

Last month Gwasi MP, John Mbadi, filed a motion in which he requested that the Parliamentary Service Commission be disbanded and reconstituted for various incidences of malfeasance. This week several MPs called for the resignation of the members of the Parliamentary Service Commission over allegations of corruption, nepotism, extortion and ineptitude.

Some of the allegations levelled against the Commission include:

  • Varying the construction contract for a new office block from 5.8 billion to 6.5 billion shillings
  • Delay of the 1 billion shilling refurbishment of the parliament
  • Irregular tendering processes
  • Irregular recruitment, remuneration and promotion practices

Since the call for the resignation and disbandment of the Parliamentary Service Commission, the Speaker of the National Assembly, also the commission’s chairperson, has held an informal/‘closed’ meeting in attempt to resolve the commission’s issues. More recently a court case has been filed alleging that any attempt on the part of the parliament to remove any of the members of the Parliamentary Service Commission would be unconstitutional as they, the commission’s members, “are not subject to the control and or direction any person or authority.”

The magnitude of the allegations, in my opinion at least, warrants the disbandment of the commission. The allegations also raise question about oversight and accountability of the Parliamentary Service Commission. To whom is the parliamentary commission accountable? Who has oversight over the parliamentary service commission?

Should Taxpayers Expect to Pay Out More Refunds for Corruption?

Posted by on 7th November 2011

Categories: Uncategorized

“The Treasury has a made a decision to refund the money on behalf of the government,” said Permanent Secretary in the Ministry of Education, James Ole Kiyiapi, earlier this week. The Permanent Secretary was speaking in relation to the UK government’s demand that it be reimbursed for aid funding given to the Ministry of Education, which then went missing in the 4.2 billion shilling Ministry of Education scandal. The treasury has paid back a total of 178 million shillings to the Department for International Development (DfID) the official development agency of the UK government.

According to media reports the Canadian High Commission and the World Bank have made similar demands for the refund of aid money misappropriated by government ministries. The Canadian High Commission has issued the Treasury a refund bill in the amount of 52.4 million shillings and the World Bank is demanding a refund of over 900 million shillings misappropriated under the Kazi Kwa Vijana scheme.

I agree with the DfID spokesperson who stated it was the right of the UK government to be fully reimbursed for their share of funds that had been stolen as the UK government had an obligation to its taxpayers to ensure that their money is used for the intended purposes.
Back to the Kenyan government and its responsibility to its taxpayers. One wonders if the government is going to pursue the culprits who misappropriated the funds and recover the funds or whether the Treasury going to let taxpayers foot the bill for the refunds.

Also worrying is the potential size of the refund bill, especially if taxpayers are expected to fund it. Remember the Auditor General’s Report 2009/2010 which revealed billions of missing shillings from various government ministries? What proportion of these missing funds are donor funds? Will there be more requests of refunds for misappropriated funds? And will the treasury be refunding donors with taxpayer money, or will it find the culprits and recover the funds?

Kazi Kwa Vijana Scandal

Posted by on 28th October 2011

Categories: Corruption

By Mzalendo Contributor – Moreen Majiwa

It seems the phrase commonly used to describe the Kazi kwa Vijana (KKV) Project, “Kazi kwa Vijana, Pesa kwa Wazee” holds a lot of water. On Sunday this week, the papers revealed large-scale misappropriation of funds intended for the KKV project. The KKV project, launched in 2009, was intended to create employment for 200,000-300,000 Kenyans primarily youth at risk of hunger and starvation. A noble endeavour seeing as of the country’s 40% unemployment rate, youth unemployment constitutes 64%.

The KKV project falls under the Office of the Prime Minister and is heavily financed by the World Bank. Of the 4.3 billion shillings allocated to the project the World Bank has disbursed 971 million shillings to the government through the Office of the Prime Minister.  In June and July this year the World Bank’s financial management team conducted a review of all the project’s implementing agencies; the Office of the Prime Minister, the Ministry of Youth Affairs, and Kenya Private Sector Alliance. The audit covered the period since project’s inception in 2009 to August 31, 2011. In the process the World Bank’s financial management team uncovered:

  • Weaknesses in the internal control procedures
  • Improper payment procedures
  • Transactions carried out without regard to policies and procedures
  • Irregular transactions in breach of legal agreements
  • Expenditures unrelated to the project

A few examples of the above include:

  • The hiring of the Deputy Permanent Secretary in the office of the Prime Minister as the Director of Policy for the project. A role for which she received an enhanced salary and a top-up allowance while still on a government salary.
  • Ministry employees were paid sitting and meal allowances for activities that had nothing to do with the project.
  • Payments were made to participants of a National Youth Conference in Nairobi the audit report reveals that the conference never took place.
  • Though the financing agreement does not provide for payment of operating costs 80 million shillings was granted as government counterpart funds to meet operating costs, however the money was not used on the project. Furthermore, the auditors were unable to gain access to documentation showing how the funds were used.

These examples are just the tip of the iceberg, the preliminary audit report details several other instances of misappropriation and mismanagement of funds, unaccounted for funds, and flouting of policy and procedure. It’s hardly surprising that the World Bank has termed the KKV project, high risk and vulnerable to graft, and is demanding a refund of the 971 million shillings already disbursed for the project.

In a statement issued to the press regarding the misappropriation of KKV funds, Dr Mohammed Isahakia Permanent Secretary in the Office of the Prime Minister declared, “Some monies may have been used for purpose that were not consistent with KKV’s objectives or World Bank policies. It does not necessarily mean monies were stolen.”

Given the Prime Minister’s valiant calls for political accountability for graft in the past and the magnitude of the graft it is surprising that there has been no official statement from the Prime Minister himself considering that it is his Office that hosts the KKV project and he is the chair of KKV National steering committee.

On the Incursion into Somalia

Posted by on 21st October 2011

Categories: News

By Mzalendo Contributor – Moreen Majiwa

Call it what you will an incursion, an invasion, the pursuit of kidnappers, a military offensive against a terrorist group – Kenya’s operation in Somalia has dominated our collective consciousness over the past week.

What initially started out as pursuit of kidnappers seems to have turned out to be a much more ambitious project – an operation involving thousands of Kenyan troops targeted at routing out Al Shabaab. According to government spokesperson Alfred Mutua, the government aims to “track down and dismantle the Al-Shabaab.”

On Sunday, 16.10.11, Kenyan troops crossed the border into Somalia, in pursuit of the Al Shabaab.   On Wednesday, 19.10.11, the military spokesperson announced that the government had killed 70+ Al Shabaab rebels and captured three towns.  In return Al Shabaab threatened reprisals unless Kenyan troops immediately withdraw from Somalia.

Meanwhile, the Assistant Minister for Internal Security Orwa Ojodeh has proposed security measures that involve:

  • Restricting chartered flights to and from North-eastern Province,
  • Screening of all buses and flights headed to and coming from regions bordering Somalia
  • Vetting and identification of all passengers on such flights or buses
  • Clearance certification for flights headed to and coming from North Eastern, Upper Eastern, Upper Rift Valley and Northern Coast to be obtained from the police

The Assistant Minister has stated that that in the coming week the mother of all operations will be carried out in Eastleigh.  His exact words, ‘This (the Al Shabaab issue) is like a big animal, the tail in Somalia, and the head of the animal is hidden here in Eastleigh…After the Somalia thing is over, I am going to do a mother of all operations here in Nairobi to remove all Al Shabaab and Al Qaeda.”

It’s difficult to estimate the social the impact and the unintended consequences of the incursion as yet.  The Al Shabaab threat looms heavy.  MPs Aden Duale, Hussien Ali, Aden Keynan, Mohamed Affey, and Bonny Khalwale have already pointed out the likelihood of the new security measures being used to discriminate against Kenyans of Somali descent.

There is also the financial cost of the operation.  An article in the Business Daily estimates that the cost of maintaining a soldier  in the battlefield is 7,000 Kshs a day and that the country could end up spending 210 million Kshs per month.   The Treasury has also announced possible spending cuts to fund the operation.

While we all support our Kenyan troops among the public two distinct schools on thoughts on the operation have emerged some stating that such action is long over due, while others are vehemently opposed on the basis that such an operation an against a guerrilla group is counter-productive?

Your thoughts?

The Public’s View of Progress of Constitutional Implementation?

Posted by on 17th October 2011

Categories: Kenya Constitution

By  Mzalendo Contributor – Moreen Majiwa

The promulgation of the new constitution is probably the coalition government’s greatest achievement. However actual implementation of the constitution, hasn’t all been plain sailing. The debate on how provisions of the constitution are to be realised seems to intensify at every stage implementation.

So far the negotiation on implementation of the constitution has occurred mostly between government organs e.g. parliament, the executive, commissions etc. Despite explicit constitutional provisions for public participation, the public has only been involved in a limited way in the constitution’s implementation.

That is part of the reason the Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project is so interesting. The project has surveyed 2000 Kenyans to find out their thoughts on constitutional implementation, electoral reforms, and the legacy of post election violence. The results of the survey have been released as part of a review report on the Progress in Implementation of the Constitution and Other reforms. The results of the survey are an interesting indicator of what everyday people think about the ongoing reforms.

  • With regards to satisfaction with the progress made on implementing the constitution 52% of the survey respondents stated they were either very satisfied or satisfied, while 37% stated are either not satisfied or very dissatisfied.
  • When asked whether they had observed any change in the country since the promulgation of the constitution 44% of the respondents stated they had witnessed no change at all, while 53% respondents replied that their had been change. The biggest change areas were identified as being the public vetting of office bearers, judicial reform, and checking of executive powers. Areas of low change were in delivery of public services, education, reduction in corruption, MPs paying taxes, and delivery of security.
  • Survey participants identified the main roadblocks to implementation of the constitution as being divisions among politicians (65%), 2012 campaigns (19%), lack of resources (14%), and implementation of the 1/3 gender representation rule (7%). Interestingly according to the survey issues that one would think would be major impediments to constitutional implementation are not seen as such. According to the survey only 2% of respondents cited corruption among politicians, lack of commitment by government, and selfish interests among politicians as issues likely to impede implementation of the constitution.

Overall the survey finds the view of the public on the progress of constitutional implementation seems to be favourable, the report finds that the legal and institutional framework for implementation is in place and implementation is on track. The flip side is that the report also finds that though constitutional implementation is taking place, it is marked by legal and policy gaps, poor co-ordination between actors, vested interests, and poor drafting of legislation.

“Errors” of Government Printer

Posted by on 13th October 2011

Categories: Bills

By Mzalendo Contributor – Moreen Majiwa

MPs Danson Mugatana, Martha Karua, and Olago Aluoch have called for an investigation into the Government Printer and employees of Parliament for a crucial error in the publication of the Elections Act 2011. The section in question is Article 34 (9) of the Act.

The misprint of the Act reads, “The party list may not contain a name of any Presidential or Deputy Presidential Candidate nominated for an election under this Act.”  While the actual draft bill reads, “The party list shall not contain a name of any candidate nominated for an election under this act.”

The correct version and the misprint are so substantially different in wording, meaning and intent it’s hard to believe that this is a simple mistake. And it is not the first time the Government Printer has made substantive errors in crucial legislation.

  • There was the incident of the ‘misprint’ in the constitution, while still in draft form. A misprint was one that effectively suspended whole Bill Rights i.e. the most progressive and revolutionary part of the constitution. The Government Printer later apologised for the error.
  • There was the incident when the Government Printer failed to publish the list of the constituencies that contained the names 80 new constituencies created under the new constitution.
  • There was the incident where the Government Printer was summoned before parliament to explain the delay in the publishing of the Independent Electoral Boundaries Commission Bill.

If errors or delays in printing had only happened once, or the errors did not keep happening in the publication of crucial bills/acts, or if the errors did not substantially alter the meaning and intention of said legislation, then maybe the bills could be written of as instances of human error.

However the number and type of incidents of errors, misprints or delays in publications of legislation, and the laws in which the errors occur (the errors and delays have not occurred in just any laws – errors or delays have occurred in the constitution, and the Independent Electoral Boundaries Commission Bill and the Elections Act) make a sound basis for investigations into the Government Printer.

Given the number of laws to be passed in the new dispensation can we really afford to have a sloppy Government Printer?

National Intelligence Service Bill

Posted by on 11th October 2011

Categories: Bills

By Mzalendo Contributor – Moreen Majiwa

If anyone thought there was going to be a change in the way the country’s intelligence service is run in the new dispensation they should think again. Yes, there are new and progressive provisions in the National Intelligence Service Bill 2011 e.g. the requirement that the director general meet the leadership and integrity standards set out in Chapter 6 of the constitution, and that the appointment of the director general be subject to parliamentary approval.

However,  despite these provisions there are several ways in which the bill is retrogressive.   First in its development, unlike other bills the National Intelligence Service Bill 2011 did not go through a process of Cabinet approval.  The bill originated from the National Security Intelligence Service (NSIS) and went straight to the Constitution Implementation Commission (CIC),  by-passing the Cabinet  and scrutiny by that body.   In fact,  the Assistant Internal Security Minister Orwa Ojode recently stated that his Ministry, the Ministry of Internal Security, had not even received the bill. He stated however that the Cabinet could not interfere with matters of defence and security. It seems like a bit of a paradox that the Ministry of Internal Security  “cannot interfere with matters of defence and security.”  And while NSIS is probably best placed to draft a bill on intelligence and security services what happened to consultative processes required under the new constitution?

The second major issue with the bill is oversight of the NSIS, who will provide it and how. The Bill proposes that a “Parliamentary Intelligence Oversight Committee consisting of Members of the National Assembly” provide oversight.  The committee is intended to exercise oversight over the administration, expenditure and policy of the intelligence services. So far so good, except for the fact that the members of the committee will be vetted chosen by the very service for which they are supposed to provide oversight.   The Bill also explicitly provides that “the Committee shall conduct its functions within a ring of secrecy” and that “no member of the Committee may disclose any information or document gained by him in the performance of his functions.” There’s no denying there is need for secrecy in the intelligence services, but in administrative and policy issues?  Furthermore,  what is the point of an oversight body if its “functions are conducted in a ring of secrecy”  how will one tell whether they are indeed performing their oversight role or not?

Then there is the issue of the civil liberties, particularly freedom of speech, access to information, freedom of association, and the right to privacy and the bill has provisions lead to infringement on these rights. For instance, the Bill allows the NSIS to obtain “any information, material, record, document or thing and for that purpose enter any place, or obtain access to anything, search for or remove or return, examine, take extracts from, make copies of or record in any other manner the information, material, record, document or thing” the bill also allows the service to “monitor electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain any information derived from or related to such emissions, equipment or encrypted material’ i.e. mobile phones and Internet.”  It can do so without warrant in “extreme emergency or existence of exceptional circumstances” and for reasons of national security.  Of course the definitions for extreme emergency, exceptional circumstance and national are adequately vague that they may cover any series of circumstances. I’m not saying that the NSIS will misuse the powers and privileges accorded to it in the NSIS Bill.  However given the history of the country’s intelligence services it is a bit of a leap of faith to think that such powers will never be abused.