Entries from October 8th, 2011

Are Policy Makers Doing Enough?

Posted by on 8th October 2011

Categories: News

By Mzalendo Contributor – Moreen Majiwa

  • The Kenyan Shilling has fallen 25% percent against the dollar since January
  • Inflation is up by 17.1%
  • Food inflation is up by 24.4%
  • Transport inflation is up 24.8%
  • Economic Growth slowed to 4.1%
  • KPLC has raised the price of electricity per unit

You’d be hard pressed to find a Kenyan on the street that would say they have not been affected by the food costs, fuel costs, or the general cost of doing business.   Yes,  there are external factors that have affected the value of the shilling – the Euro zone crisis, persistent drought in the region, volatile oil prices etc. However internal factors i.e. the effect of poor policy, planning and practice are also to blame for the declining value of shilling. An article in the Nation names the Ministries of Industrialisation, Agriculture, Energy, Trade, Tourism, Planning and Vision 2030 and the Kenyan Consumer playing a large part in where we are economically.

The policy makers’ response? Parliament’s Finance, Planning and Trade Committee has proposed the government attempt to obtain ‘emergency balance of payment support from the International Monetary Fund and other development partners.’ According to the committee’s head, Nambale MP Chris Okemo, ‘this is the only way to stem the excess volatility between the shilling and the other currencies’.

The committee has also summoned the Central Bank Governor seeking an explanation for the rapid decline of the value of the shilling. In September President Kibaki assented to the Price Control (Essential Goods) Bill. The Act allows the government to set maximum prices on essential goods i.e. maize flour, cooking oil, sugar etc. The 2011/2012 Budget proposed the removal of excise duty kerosene, and essential goods. I’m yet to see and or hear anyone speaking of the benefits of these either of these measures. The President has reached out to the International Monetary Fund for financial aid. The Prime Minister has set up a committee to ‘save the shilling’. The committee formed this month is comprised of officials from the Office of the President, the Treasury, Central Bank of Kenya, the Ministry of Planning and private sector executives. The Parliamentary Committee on the Budget headed by MP Elias Mbau is seeking a 30 billion shilling economic stimulus package to cushion the poor against the effect of inflation and the falling shilling. The MP has suggested that the 30 billion shilling cash injection be raised through a ban on non-essential travel by public officers overseas (yes please), and additional taxes for the rich and sectors with high margins. I wonder if this plan includes having MPs remit their taxes in full. The Central Bank of Kenya seems to be more cautious in its limited interventions seeming to prefer to wait and see if the market will self-correct.

The thing is a lot of these interventions have occurred in the last two months despite the fact that problem seems to have become noticeable in January 2011 and probably started way before. Are the interventions adequate or is this a case of too little too late? Is the government doing enough to rectify the situation?

On The Minimum Education Requirement for Elective Posts

Posted by on 4th October 2011

Categories: 2012 Elections

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The Election Act, which governs the conduct of elections, is one of a slew of bills passed in late August this year. The Act has provisions in it that effectively bar candidates without a post-high school diploma or degree from running for elective positions.

Article 22 (1) (b) states ‘a person may be nominated as a candidate for election under this Act only if that person holds a post secondary school qualification.’ Article 22 (2) states ‘a person may be nominated as a candidate for election as President, Deputy President, county governor or deputy county governor only if the person is a holder of a degree from a university recognised in Kenya’.

This week two petitioners have received permission to file a high court case against the Attorney General, the Minister of Justice, and the yet to be formed Independent Electoral and Boundaries Commission to have the provisions requiring candidates standing for elective positions to have post secondary school qualifications suspended and eventually removed from the Elections Act.

The basis of their case is that the provisions on minimum educational requirements are discriminatory. That the provisions fail to take into account injustices and structural inequalities that have left many in the rural areas educationally disadvantaged. The petitioners claim that it is unfair for the government to enact a law that places a minimum educational requirement on prospective election candidates without providing corresponding facilities to give said education.

Mithika Linturi, MP for Igembe South constituency, made a similar argument in an article he wrote in the one of the papers last week. In the article he states the provisions on minimum educational requirement for prospective election candidates are ‘manifestly unreasonable’ and ‘severely curtail the democratic rights and freedoms of Kenyans to elect leaders of their choice.’  He also states that the provisions are in breach of the constitutional principle of equality articulated in Article 10 of constitution. He also made the argument that good leadership is not the preserve of the educated or learned, stating “I know many good and effective leaders serving Kenyans but who never schooled beyond Form Four.”

What level of education do you expect your parliamentary candidate to have? Should they be educated above a high school? Or is a high school diploma enough? Should having at least a Bachelors degree from a recognised university be a prerequisite to stand for an elective posts?

IDPs To Vote or Not to Vote 2012

Posted by on 29th September 2011

Categories: 2012 Elections

By  Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

A story in one of today’s papers states that Lari MP David Njuguna has advised IDPs not to vote in the 2012 election unless the government settles them by Christmas.  According to the article, he said the government was only concerned about the welfare of politicians.  The MP said the IDPs are living under harsh conditions while others are yet to come to terms with the loss of their beloved ones lost during the post election violence.  He added that the IDPs are also starving because of the high cost of living, “These people are suffering and starving and living in deplorable conditions with their children. Education for their children is also at stake.”’

While I do agree with the fact that government is wrong in its failure to resettle the IDPs almost four years on, and that IDPs suffer disproportionately because of the governments failure, I disagree with proposal that the IDPs should demonstrate their disapproval of the government’s failure to resettle them by not voting in the upcoming election. In fact I think their vote is the strongest participatory tool that the IDPs have, so far protests, and lobby groups, though they have done an admirable job, seem to have had little effect with regards to resettlement. With their vote IDPs can signal their disapproval of the fact that government has done little to resettle them.

If the IDPs do give up their right to vote in the 2012 election, how else will they hold their parliamentary representatives accountable, how else will they signal their desire for change?

On Sidelining of Commissions and Independent Bodies

Posted by on 27th September 2011

Categories: Kenya Constitution News

By Mzalendo Contributor Moreen Majiwa

Why form commissions and independent bodies if they are going to be sidelined?  The government/parliament has a very poor record of non-interference, follow through, or implementing recommendations of commissions and independent bodies created to perform specific tasks. This trend seems to have carried on in the new dispensation, let’s review.

First, the Constitution Implementation Commission (CIC), whose role is to oversee the implementation of the Proposed Constitution, seems to have a hit several roadblocks i.e. the wrangle between the commission and government over the issue of payment of salaries of the commissioners. The most recent development in the CIC salary dispute being the A-G’s dismissal of a petition brought against himself, the Minister of Finance, and the Public Service Commission, pay negotiations are still ongoing.

Second, the CIC is being increasingly sidelined in its oversight role. Parliament passed 15 bills in less than two weeks against the CIC’s advice and disobeying a court injunction granted to stop the passage of said bills. There’s the unilateral decision by the cabinet to propose the postponement of the date of the next election contrary to the CIC advice, the issue is currently in the hands of the Supreme Court. and the illegal passage of two acts the National Government Loans Guarantee Act and the Contingencies and County Emergency Fund Act.

Third, despite the fact that the IEBC is supposed to be an independent body,  a section of MPs are attempting to influence the panels shortlist of candidates for the positions of commissioners.

I bring this up because there are 11 commissions are to be formed in the new dispensation. Commissions cost taxpayers millions probably billions of shillings every year. The role of commissions play is crucial to reform. However commissions and independent bodies this can only do their job successfully if given an enabling environment and so far it appears parliament is the biggest barrier to proper functioning of the very commission they create.

Amendments To The Constitution, Your Thoughts?

Posted by on 23rd September 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Who would have thought amendments would come this soon?  Barely a year after the constitution was passed there are two possible points of amendment on the table.

I was at a civil society meeting yesterday where the proposals to amend the constitution to facilitate realisation 2/3-gender rule in Article 81 (b) of constitution, and the proposed postponement of the next election were discussed extensively.

On implementation of the not more the 2/3 of either gender rule there were 2 divergent opinions. The first, that there was no way that requirement of Article 81 (b) could be met without a constitutional amendment, and, therefore,  requisite amendments should be made to the constitution to ensure that the 2/3 threshold is met.

The second , no amendments to the constitution should be made with regards to realisation of 2/3 gender. The 2/3 gender rule an aspirational and progressive one, to be realised over time through the creation of an enabling environment therefore no amendment is needed. What is needed is a levelling of the playing field for both genders running for elective positions. Furthermore an amendment to the constitution at this early day would open the gateway for amendments made for political expediency.

On the proposal by cabinet to have the date of the election changed from a date in August 2012 to a date in December 2012, a consensus was reached to wait for the Supreme Court opinion on the matter.

Views on the importance of date of the next general election varied from – the date of the election is not as important as people who are elected, to the view that the constitutional provision on the election date should be given the simplest reading, and the intention of the constitution followed by having the next elections in the 2nd week of August 2012. Some argued that the cabinet was being disingenuous in its reasons for its proposal to have the election in December, and all that was needed for an election to be held in August 2012 was political will and not an amendment to the constitution.

One of the panellists, a CIC commissioner, made the very good point that if any amendments to the constitution were to be made, the process of amendment should be consultative, with 100% public participation. Before any constitutional amendments are made there should be a broad consensus on the amendment by the citizens. Finally, any amendments made to the constitution should be made with the intention effect implementation rather than to erode gains.

What are your thoughts on amendments to the constitution, and what conditions would place for amendment if any?

On the Teachers' Strike

Posted by on 9th September 2011

Categories: News

The public education system needs more than just the hiring of new teachers to correct everything that’s wrong with it. Some would say the whole 8.4.4 system needs an overhaul to stay relevant. However if the government does nothing else with regard to reforming the public education system this yea, it should hire more teachers.

The internationally recommended teacher student ratio is 1 to 35. Student ratio in most of Kenya’s public schools is one teacher for every 50 students. In some schools the teacher pupil ratio is as high as 1 to 100.

With those kind numbers it’s hardly surprising that this week 240,000 teachers launched an open ended, nation wide strike, which affects 10 million primary and secondary school children. The teachers are demanding the government hire more educators to ease over crowding in classrooms. KNUT (Kenya National Union of Teachers) estimates 79,000 are teachers needed to cover the deficit.

A 1 to 100-teacher student ratio and a 79,000 deficit in teacher numbers has detrimental on both the educators and the children. It doesn’t take a rocket scientist to figure out the quality of education is reduced as the ratio increases. In fact with such a ratio one wonders how many children that graduate from class to class acquire even the most basic literacy and numeracy skills? Or how one teacher teaching 50 plus students to manages to ensure a well managed classroom and a skilful assessment of all 50 plus children to facilitate learning and reduce disparities? My guess is that as the teacher student ratio increases, education in public schools may become more about crowd control than actual teaching.

The government response to the teachers strike has been varied some MPs have threatened to stop the enactment of the Finance and Appropriations Bills if the demand for employment of additional teachers is not meant. The Minister of Education proposed the hiring of 20,000 on temporary contracts, an idea that was quickly shot down by the KNUT. The Finance Minister has stated unequivocally that there is no money in the budget for the employment of additional teachers.

Given that’s understaffing in public schools is no secret and long term negative implications of the shortage of teachers on the society why did the government divert money from the budget meant for hiring new teachers to the Department of Defence?

Is Gender Balance Really Technically Impossible to Achieve?

Posted by on 28th August 2011

Categories: Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa.

“Technically impossible to achieve,” are the words used by the presidential press service to
describe the implementation of the constitutional provisions on gender balance. The statement
reads “With regard to the requirement for one third representation in parliament by either gender,
Cabinet decided to set up a taskforce (includes Mutula Kilonzo, James Orengo, Charity Ngilu, Otieno
Kajawang, Beth Mugo, Naomi Shaban, Kiraitu Murungi, Amason Kingi, Dalmas Otieno) to
prepare a Constitutional Amendment Bill to deal with this important requirement that is technically
impossible to achieve under the current stipulation.”

I’m assuming, and correct me if I am wrong, that the expression ‘under the current stipulation’
refers to the constitutional requirement that ‘not more than two-thirds of the members of elective
public bodies be of the same gender’ Article 81 (b). Which in real terms translates to requiring
that out of 290 MPs at least 96 be women. Or maybe the phrase is in reference to Article 27 (8)
which obligates the state to take ‘legislative and other measures to implement the principle that
not more than two-thirds of the members of elective or appointive bodies shall be of the same
gender? It’s difficult to discern the exact meaning.

Whatever the case,  the Cabinet’s solution to implementation of the gender balance provision does
not seem to involve finding solutions that would make it possible to implement the constitution
as is. Its seems the Cabinet would rather take steps to remove or change the requirement that
at least a third of the MPs in the next election be women through a constitutional amendment.
(Constitutionally parliament can change the constitution over a period of ninety days if a two third
majority support the amendment and after the amendment bill is publicised and public discussion
occurs). I wonder why that is?

As a concerned Kenyan and a woman who potentially stands to be adversely by the removal
or change of the gender balance requirement I would like an explanation on what is meant by
phrase ‘technically impossible’. Does technically impossible mean that there are an insufficient
number of qualified women who are willing to run for elective positions in the next general
election? Or, that the electorate will not vote for the women candidates? Or that parliament will
not effect legislation or take measures to ensure that gender balance requirement is met?

Just in time legislation?

Posted by on 26th August 2011

Categories: Kenya Constitution Members of Parliament

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

It probably will not come to this i.e. parliament missing the constitutional deadline, 27th August,
for the enactment of 12 bills. Apart from proper planning that would have allowed the bills to
be passed in timely fashion, it would seem that the August House is making the best of a bad
situation and taking measures to ensure that all the bills passed on time.

Parliament will be sitting for longer hours. MPs have voted to skip certain steps in the legislative
process thus allowing the bills to be fast-tracked. Some bills deemed as non-urgent have
been removed from the implementation schedule. The bills that have been dropped are the
Independent Policing Oversight Authority Bill, The National Police Service Commission Bill and
the Foreign National Management Service Bill you can of course the judge of the importance of
these bills particularly the ones involving police reform.

Then of course there is the resolve to have the bills passed on time is illustrated by the statement
made by MP Abdikadir Mohammed, the Head of the CIOC, who said ‘It may not be the National
Assembly’s fault that the bills arrived late; but it will be the National Assembly’s fault if the bills are
not passed within the deadlines. An extension of the deadlines will be an admission of failure on
the part of parliament,”  though some would posit that the failure has already occurred.

But just in case the bills are not passed in time it would be useful to know what the options are.
The first option and most obvious option involves an extension invoking Article 261 (1) Parliament
can extend the deadlines for up to a year. However this would required the vote of at least two
thirds of the MPs plus the Speaker of the National Assembly would have to certify existence
of exceptional circumstances justify the extension. Of course there is no definition of what
qualifies as exceptional circumstances, so it’s hard to predict what would qualify as exceptional
circumstances in this instance.

Then there is the more controversial second option, a member of the public, civil society; actually
anyone could under Article 261 (5) petition the High Court over the missed deadlines. The Court
would then ‘make a declaratory order on the matter; and transmit an order directing Parliament
and the AG to take steps to ensure that the required legislation is enacted, within the period
specified in the order, and to report the progress to the Chief Justice’. And if Parliament failed to
act within the time give the Chief Justice would then advise the President to dissolve Parliament.

So it seems that the choice is between which is the lesser of two evils i.e. a rushed legislative
process that sees the requisite bills passed before the deadline or an extension (of course the
citizenry could petition the High Court but dissolution seems unlikely). From the political speak,
however, it appears choice has been made the bills will be passed on time.

Of course there are several pitfalls in rushing the bills through parliament, there is the chance
that the bills will not be properly scrutinized, certain provisions could be sneaked in the rushed
legislative process that could have detrimental consequences, there certainly will be little to no
public participation in a rushed legislative process. A rushed legislative process allows for the
type of political slight of hand whose ramifications of which will be revealed only once the process
is over. Public participation will be reduced to a reactionary one once the bills have already
become law.

Whatever the case lets hope this situation is not a precedent to how constitutional bills will be passed in the future especially as we have another slew of bills whose deadline is 18 months
after promulgation.

On leadership

Posted by on 21st August 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Many people aspire to hold leadership positions and with the promulgation of the
constitution there is no shortage of positions that a qualified Kenyan can vie for. In
fact one can hardly throw a stone without hitting an ongoing recruitment process for
constitutionally created positions; whether its for the Attorney General, the Auditor
General and Deputy, the Judicial Vetting Board, the Independent Electoral Boundaries
Commission or any of the other 11 independent bodies to be established under the
new constitution.  To add to the appointive positions, whether premature or not, there
are ongoing campaigns for the myriad of elective positions in the next general election
president, Member of Parliament, senator, governor etc.

So while our some of our current leaders seem to embroiled one corruption scandal
after the other, bicker over devolution issues, who will control what funds in the devolved
system, whether or not to pay their constitutionally sanctioned taxes, threaten chiefs
who dare to give reports of famine/drought related deaths. All the while simultaneously
careening speedily towards missing the deadline for the passage urgent bills.

Almost one year since the promulgation of the constitution, less then a year till the next
general election and in light of the ongoing establishment of constitutional bodies now
seems as good a time as any to review the qualities we expect of our leaders whether
appointed or elected.

I think that all Kenyans expect that state officers acknowledge that the authority
assigned them is a public trust that vests in the State officer the responsibility to serve
the people, rather than the power to rule. That the authority is to be exercised in a
manner that is consistent with the purposes and objects of the constitution, and in a
manner that demonstrates respect for the people and brings honour to the nation and
dignity to the office; and promotes public confidence in the integrity of the office. We
also expect they abide by leadership and integrity principles of personal integrity,
competence and suitability objectivity and impartiality in decision making, not
influenced by nepotism, favouritism, other improper motives or corrupt practices;
selfless service based solely on the public interest, and accountability to the public
for decisions and actions; and commitment in service to the people. And no I didn’t
make this up this and a longer list is contained in article 73 of the constitution.

While the electorate are partly to blame for the state of affairs where leadership is
concerned we voted for them, two things are true, this is a new dispensation and things
are definitely changing, if not among the leaders then certainly among the electorate.

Attention Kenyan taxpayers, your MPs keep fooling you.

Posted by on 18th August 2011

Categories: Citizen Engagement Members of Parliament

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

It would seem, if newspaper reports are to be believed, that the MPs who refuse to pay taxes have reached an agreement with Treasury on how to go about paying their taxes. The agreement could see the MPs, who had previously refused to pay taxes, pay taxes on their full salaries and then get compensated by the treasury for paying the said taxes.

According to the papers ‘a deal was agreed at two separate meetings at the Treasury on Tuesday and Wednesday attended by top treasury officials and two representatives of parliament’s Public Accounts Committee, representing MPs who refuse to pay as demanded by the new constitution. In the deal the Treasury will give MPs an ex-gratia to compensate them for paying tax on all their income’

Who will foot the bill for this deal?  he taxpayer that’s who! So in effect the Kenyan tax payer will be paying taxes that will be used to compensate their elected representative for the taxes he or she has paid on their salary, which by the way is also paid by the Kenyan taxpayer?!

And as if it is not enough for the Treasury and MPs to strike an agreement that effectively indemnifies members for paying taxes in accordance with the constitution. The agreement is also reported to include the implementation of the recommendations of the Akiwumi Tribunal on Parliamentary Terms that would see the salaries of MPs increased to Kshs 1.1 million each.

That some members of the parliament refuse to pay taxes despite clear constitutional provisions that state that they should do so and that the very same members of parliament continually attempt to negotiate their way out of paying the taxes seems to me like a slap in the face of both democracy and rule of law. What happened to democratic principles like representative government, and rule by the people? What does it mean for our democracy when 222 people (less the members that have paid their taxes, or who agree to pay) show blatant disregard for the wishes of the majority? And what does it mean for the rule of law when the people we elect to make and uphold law, are the very same ones to openly defy it?