Entries from September 26th, 2013

Will the Real 'Mzalendo' Stand Up

Posted by on 26th September 2013

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Our Constitution states “All sovereign power belongs to the people of Kenya …” and never has this been more evident than in the aftermath of the Westgate Mall terrorism incident on Saturday, 21 September 2013.

Kenyans took ownership of their country, not waiting for politicians to drive the agenda and shape the story.  We owned our flag, our city and our land. Adversity birthed brotherhood in Kenya, across tribe, race, class, religion and politics. No one could have envisioned this. Kenyans sang one song: #WeAreOne.

Unity indeed became our strength. We woke up to the truth that if one hurts, we all do.  It did not matter which part of the country one lived or hailed from. Kenyans abroad and within. Blood bound us together more than tribe ever could. We stood as one. Members of the human race. Service to our brothers and sisters became our earnest endeavour.

Cost was not in question. The Westgate attack was both personal and corporate. Our security forces willingly lay their lives on the line in service of the nation.  Voluntarily, we gave our blood, money, time, services and resources to the rescue and recovery endeavour.

In three days, the challenge was addressed. Kenya Red Cross raised Ksh 56,911,215 through M-Pesa from Kenyans to support their exemplary work the rescue and recovery response effort. Rare feats of statesmanship were evident across the political divide, as our politicians expressed the need for solidarity and pushed their differences aside to address the terrorism challenge at hand.

Kenyans rose to the task and ably honoured the lives of the 69 people who died, more than 1000 rescued and 175 injured.  Ordinary Kenyan citizens set the bar, on selflessness and service. Can our politicians follow suit?

What will it take to keep ordinary citizens engaged in civic action in their counties and nation at large – beyond just emotive giving borne of disaster, Harambees and chamas?Selfless contribution to nation-building through active engagement in county governance processes, strengthening political parties, taking ownership of state funds under the Uwezo and Constituency Development Funds (CDF), holding public servants accountable, scrutinising legislation and petitioning Parliament and much more.

Will the real ‘mzalendo’ stand up? What will you do?  Thoughts?

On the National Assembly's Attempt to Redefine 'State Officer' to Exclude MPs

Posted by on 17th September 2013

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Since the promulgation of the constitution three issues have been particularly contentious, and more for Parliamentarians than for the public. These are the issues of MPs salaries, MPs paying taxes, and the standard of leadership and integrity required of state officers. While the public have pushed for a following of the constitution with regard to these issues, the National Assembly seems to be pulling in the opposite direction.

Yet the constitution is clear on these issues: Chapter 6 sets the bar for leadership and integrity for State Officers.

With regards to taxation of members of the National Assembly the constitution requires all State Officers to pay taxes stating, “no law may exclude or authorise the exclusion of a State Officer from payment of tax Article 210 (3).

On the MPs salaries, Article 230 (4) (a) of the constitution removes from the members of the National Assembly the mandate of setting their own salaries and transfers it to the Salaries and Remuneration Commission (SRC); requiring the SRC “to set and regularly review the remuneration and benefits of all State officers.

Members of parliament in both this and last administration have fought and continue to fight these requirements. The last parliament watered down the standards of leadership and integrity in the Leadership and Integrity Act and the current National Assembly refused to adhere to the new salary scale set by the SRC.

Most recently Ruaraka MP, Otieno Kajawang, has introduced a bill to amend the constitution to exclude Parliamentarians from the constitutional definition of State Officers.

One wonders if this will mean that MPs will no longer be constitutionally bound by the requirements of leadership and integrity that applies to state officers. Will they be free from the provision that requires all state officers to pay tax? And will Parliamentarians be able to set their own salaries? Seeing as they will no longer be defined as State Officers

The Preamble to the bill states that the, “bill is informed by the need to uphold the doctrine of separation of powers between the various arms of government [the Legislature, Judiciary, and Executive]…by including all the officers of these three arms of government under the definition of State Office, it compromises their independence.”

This logic is flawed on several levels firstly all the above are State Officers i.e. they perform functions of the State, secondly I am sure the public can easily differentiate by title which State Officer belongs to which State Organ. It is highly unlikely that a member of public will mistake a member of parliament for belonging to the Judiciary, or a member of the Judiciary, say a Judge, for belonging to the Legislature. Finally it is difficult to see how calling State-Officers by the name that relates to their function compromises their independence.

The above not withstanding there exists wider questions with regards to what the passage of such a bill would mean for supremacy of the constitution and what this means for the future of the constitutional implementation.

If Members of the National Assembly do not like provisions of the constitution will they just make legislation to make the provisions null and void?

On Violence Against Women in Public Office

Posted by on 13th September 2013

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Last week an article appeared in the Standard Newspaper in which the author Pravin Bowry wrote, “Gender equality amongst the emancipated women in Kenya and the world over is a mantra sung repeatedly. But in Kenya, there is under the Constitution — the National Gender and Equality Commission — yet there are disturbing indicators that women’s rights are only a myth.”

Last week’s assault of Nairobi Women’s Representative, Rachel Shebesh, by Nairobi Governor, Evans Kidero, was illustrative of this point. And this is not the first time a high level State Officer has assaulted a woman colleague nor is it an instance of a single isolated incident.

In June this year on the floor of the National Assembly during the debate on the one-laptop per-child project Suna West MP, Joseph Odege, shouted at female colleagues to shut up; and during the same session poured a glass of water on a fellow female MP and slapped MP Sarah Korore.

Last week, Senator Gideon Mbuvi (aka Mike Sonko) verbally assaulted radio personality Caroline Mutoko, during a radio programme to which he called in and then was unable to answer a question regarding sustainable solutions for those he represents.

That the prevalent public narrative around the assault of the Nairobi Women’s Representative by the Governor, seems to be the – ‘she must have done something to provoke him,’ or that, ‘she went too far’ or is ‘too aggressive’ narrative – is worrying as it speaks to society’s (men and women) acceptance violence as viable method to control female behaviour and justifies female subordination.

While all these incidences have been caught on one form or another of media and there is evidence to prove what happened in all cases there has been resounding silence from the government.

Kenya has several laws that prohibit violence against women i.e. the constitution and several international instruments that promote the rights of women and call for an end of violence against. The constitution also makes provision for equality, affirmative action and obligates the state to take measures to increase women’s participation in political leadership.

However the government’s silence on the incidence on violence carried out by state officials negates these laws and raises issues of accountability, and the government’s commitment to  gender equality. The states ambivalence and inaction against its own officers will allow such violence to continue.

I could was lyrical about the National Assembly being the house that patriarchy built I won’t. It is however evident that structural and institutional change is needed to ensure women are recognized as equal citizens in line with the provisions of the constitution. In the meantime where is the National Gender and Equality Commission?


On the VAT Act 2013

Posted by on 11th September 2013

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Last month the Cabinet Secretary for the National Treasury, Henry Rotich, stated that there was no cause for alarm over the new Value Added Tax (VAT) Bill. The Cabinet Sectary also stated that the new bill would only revise the list of goods exempted from tax, and was not intended to hurt mwananchi, similar assurances were given by the Deputy President. However it is clear since the Act became operational on 2nd September, that this is not the case.

The VAT Act imposed a 16 percent tax on essential goods and services that had been zero-rated. Under the Act previously zero-rated goods which became taxable at 16 per cent include milk, maize and wheat flour, bread, sanitary towels, medical dressing and plasters. Some of the zero rated services that became taxable at 16 percent are electricity and water.

Proponents of the new VAT Act argue that it will increase the government’s revenue, in his budget speech the Cabinet Secretary for the National Treasury stated that VAT reforms including revision of the list of VAT exempt goods would afford the National Government Sh10 billion more monthly. Kenya Revenue Authority (KRA) has also argued that the new VAT bill will increase tax compliance, the logic being because everyone is taxed at every transaction VAT is able to capture more revenue and also revenue that had previously been missed.

While the VAT may increase government revenue, something that still needs to seen, it does so by reducing the number of goods and services of both the exempt and zero-rated items. The thing is a number of these goods and services are essential milk, water, bread, maize flour, medical dressing, transport, while 16 per cent may not seem like it puts several of these essential goods and services out of the reach of many Kenyans.

In addition VAT on previously zero rated items will negatively affect poor Kenyans. Yes everyone will be charged 16 percent VAT on every transaction; however this tax has more of a negative effect on someone earning 30,000 shillings a month, than someone earning 1 million shillings a month.

So while there is no question that the government does need to increase its revenue. Is the VAT Act the best way to do considering regressive disproportionately affects the poor? And what happened to the promise that the VAT Act would not hurt mwananchi?

On the National Assembly’s Motion to Withdraw from the ICC

Posted by on 9th September 2013

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Earlier in the year while attending his pretrial hearing the Deputy President, William Ruto, stated, “the new Kenyan administration … will cooperate with the court, because President Kenyatta and myself believe in the rule of law.” The President, Uhuru Kenyatta, has also made similar promises to cooperate with the ICC. There is also Memorandum of Understanding (MOU) signed between the Kenya and the Court in 2010.

However a few days to the start of the Deputy President’s trial at the International Criminal Court (ICC), the National Assembly has approved a motion to begin Kenya’s pull out from the Rome Statute. Many would argue that the motion brought by the Leader of the Majority, Aden Duale, was inevitable considering that both this and the previous administration have spent considerable time and state resources to get the trial stopped, postpone or get them moved.

If Kenya successfully pulls out of the Rome Statue, along with being the first country to have ICC indictees elected to office, it will become the first country to pull out of the ICC. However even if Kenya withdraws from the Rome Statute the cases against President and Deputy President will proceed as scheduled (the Deputy President’s trial will begin in later this month and the President’s trial will begin in November). Under article 127 of the Rome Statute, withdrawal from the treaty would not suspend judicial proceedings that began before the date of withdrawal.

Further under international law Kenya would still be required to cooperate with the ICC on obligations that arose while Kenya was still party to the Rome Statute. However from the emergency parliamentary session held on Thursday last week it is clear that the State has little or no intention of cooperating with ICC in the ongoing trials after it pulls out from the Rome Statute. The original motion contained the phrase stating that Kenya would “suspend any links, co-operation and assistance” with/to the ICC, the phrase as was later deleted from the motion.

Now that the motion to withdraw from the ICC has been passed by the National Assembly, the relevant government offices are probably in the process of drafting a bill to facilitate Kenya’s withdrawal from the Rome Statute. The bill will be debated in parliament and if passed, the bill will be forwarded to the President for his assent.

It will be interesting to see whether or not the President will assent to a bill to withdraw from the Rome Statute given the conflict of interest issues, previous promises to cooperate with the court and the fact a bill to withdraw would not stop on going proceedings at the Hague.

Jubilee’s Govt’s first 100 days in Office a Statement from MP Aden Duale (Leader of the Majority)

Posted by on 4th July 2013

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During its campaigns the Jubilee coalition made several promises, the most famous being the one-laptop per child project. However the Jubilee government also made promises with regards to security, maternal health care and youth unemployment among a whole gamut of other promises.

A few weeks ago the MP for Rarieda, Nicholas Gumbo, sought a statement on the progress of the programmes and promises made by the Jubilee Government. The specific promises he wanted addressed were: the provision of security services, the one laptop per child programme, and the rollout of the free maternity service in all public hospitals.

These seem to be the most controversial promises given the countries shortage of finances and the practicality implementing these promises; the laptop project especially seems like a white elephant considering the government cannot at the moment seem to adequately remunerate teachers.

Last week Wednesday the Leader of Majority, MP Aden Duale, gave a statement on the progress that the Jubilee government has made on its promises within its first 100 days in office, below are some excerpts from his statement:

On Security, the Leader of the Majority stated that there had,been an improvement on the state of security in our country over the last 60 days,” and that, “the crime rate in the country has gone down by 14 per cent in the last five months.” He did admit however that the country continues to face major security threats from organised criminal groups, including Al Shabaab, Mombasa Republican Council (MRC) and Mungiki.

Budget wise in its first 100 the Jubilee government has allocated Kshs. 67 billion shillings to security in the next fiscal year. The government has also transferred security personnel who overstayed insecurity-prone areas and deployed additional security personnel to contain emerging areas of insecurity. There has also been a move to prioritise the repatriation of Somali refugees from Kenya to Somalia.

On the Lap-tops, MP Aden Duale, stated that within its first 100 days the Jubilee government through the Ministry of Ministry of Education, Science and Technology has put in place a strategy for the implementation of the project which includes development of the technical specifications for the computers to be procured for schools and testing the machines to ensure they actually work (important after the BVR kit debacle which cost the country billions). The government has also put in place a steering technical committee to deal with the development of infrastructure and electricity for power provision, creation digital content, capacity building and, the procurement process around laptops.

The promise, on Free Maternal Health Care at Public Hospitals was effected on June 1st this year. According to Aden Duale’s statement, “the free maternity initiative of the Jubilee Government is being implemented in 293 hospitals and in all the 372 health centres across the country,” and the government expects, “that upon implementation of the initiative, the health facilities will experience a 15 per cent in service utilization.” Budget-wise, “Kshs. 1 billion has been provided for free maternal health care in the Revised Estimates of the Budget for 2013/2014, another Kshs. 4 billion has been provided for in the Budget of 2013/2014 for reimbursement to facilities for free deliveries and Kshs.3.6 billion has been provided for in 2013/2014 Financial year to recruit additional health workers and another Kshs. 1 billion for equipment for all the health centres under this programme.”

With regards to Youth Unemployment, the Ministry of Labour and Social Security and Services, developed the National Employment Policy and Strategy for Kenya, this was forwarded to parliament last month. According to the leader of MP Aden Duale, “The policy proposes to address the issue of youth unemployment by developing employment programmes for youth with different skills levels.” This includes the development of a national internship policy to promote acquisition of practical skills and work experience to the relevant labour market; Creation of awareness to change the perception by the society and youth towards informal sports, agriculture and creative industries to promote job creation for the young people.

Budget -wise the government intends to restructure both the youth fund and the CDF to cater for these initiatives and has allocated Kshs.6 billion to these initiatives this financial year.

The Statement made by the Leader of the Majority paints a decidedly favourable picture of the Jubilee government’s achievements in its 100 days. The statement fails to mention that also within the first 100 days of the Jubilee government there have been several strikes by government employees most recently the teachers. There have been several protests by the populace first against the increase of salaries of members of the National Assembly, secondly against the VAT bill. There seems to have been a systematic a undermining of independent commissions most recently the Salaries and Remuneration Commission. In addition the devolution process continues to come under threat as national government and the newly devolved institutions buttheads over which institution should do what….and the list continues.

What is your take of the Jubilee governments first 100 days in office?

Read full statement here

On the Teachers Strike: Of threats and mixed messages

Posted by on 2nd July 2013

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For the last week teachers have been striking over pay and work conditions. More specifically an agreement between the government and teachers over pay; an agreement which according to the teachers unions has been outstanding since 1997! And which successive governments have failed to honour.

Yesterday the industrial court ruled that the striking teachers should return to work immediately. Following the order of the courts the Attorney General issued a warning that the striking teachers could face either jail terms or fines if they fail to return to the class room. The Attorney General is quoted as advising “the leaders of the teachers unions, the individual teachers themselves and the general public that the disobedience of court orders -contempt of court – is a grave offence under Kenyan law punishable by both a jail term and the imposition of a monetary penalty”

This warning comes on the heels of an earlier statement made bythe Cabinet Secretary for Education, Jacob Kaimenyi, who stated that the government would withhold the pay of teachers if they continued with the industrial action.

This message seems incongruent with the messaging by the President and Vice President, who seem to be advocating a dialogue between the teachers unions and the government:

An article in the Nation quotes the President as stating, “I have today (Friday) directed the Cabinet Secretary Education, Science and Technology, and the Teachers Service Commission in consultation with the Salaries and Remuneration Commission (SRC) to immediately engage the Kenya National Union of Teachers and Kenya Union of Post Primary Education Teachers to discuss any outstanding issues.”

This statement was reiterated by the Vice President this week, the Vice President is quoted as stating that “The government directs the Ministry of Labour to convene an urgent meeting of the SRC, the TSC Consultative Committee on the Terms and Conditions of Service of Registered Teachers and the two unions, KNUT and KUPPET to formulate a framework for negotiation. This framework will incorporate all outstanding issues.”

So on one hand there’s the message that the government is willing to negotiate with the teachers union over the remuneration issues, on the other there are the threats issued by top ranking officials from the same government. As a point of information threats may not be the best from negotiation.

The dilemma for the teachers is, on one hand the threat of jail terms, fines and withheld salaries and on the other going to back to class to knowing that successive governments have failed to honour promises to better remunerate teachers. So much so that teachers strikes over pay seem part and parcel of public school education.

So apart from the fact that the teachers have little or no incentive to end the strike, because of failure by successive governments to honour the pay agreement, the, “there is no money to remunerate teachers,” may not work, because just recently members of the National Assembly almost doubled their salaries.

What is your take on the teachers strike?


Shouldn’t the Same Logic be applied to MP’s Salaries?

Posted by on 13th June 2013

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Last week one of the points of order raised on the floor of the National Assembly was on the ‘Establishment/Composition/Operation of the Commissions’. MP John Mbadi Ng’ongo asked the Budget and Appropriations Committee to issue a statement on the establishment, composition and operation of all constitutional commissions.

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?

What is the Government’s Position on the ICC cases?

Posted by on 10th June 2013

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It is difficult to know exactly what the government’s position is with regards to the ongoing International Criminal Court’s cases against the President and Deputy President. The constitution is clear on Rome Statute’s position in Kenya’s laws. Article 2(5) of the constitution states “the general rules of international law shall form part of the law of Kenya”: Kenya has also domesticated the Rome Statute in the International Crimes Act of 2008.

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.

On Limiting Press Access to the National Assembly Sittings

Posted by on 6th June 2013

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According to the Nation:

“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.