Entries from November 13th, 2014

Legislating the Mining Sector Prudent

Posted by on 13th November 2014

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Ongoing efforts to legislate in the mining sector are crucial and laudable in instilling proper governance in the sector. The law when it comes to effect will not only have better provisions like the current one but align the regime to contemporary realities of technology, transparency and accountability, public participation and other constitutional requirements among others.

The current law dates back to the colonial period and is therefore ‘archaic’ and not suited to present realities. Mr. Stephen Mwakesi, a program officer at the Kenya Chamber of Mines tweeted “took five hours, 45 minutes, 110 amendments to change Kenya’s 1940 Mining Act….”

The new law which is awaiting the President’s assent has reopened a supremacy war between the Senate and the National Assembly. The Bill was passed by the National Assembly and the Senate is aggrieved that it was not consulted since it touches on devolution. For instance, it proposes sharing of royalties and fees among national government, counties and the community.

At the same time, there is an ongoing process at the Senate led by Senator Agnes Zani to also pass a law for the Mining sector. To avoid duplication of efforts it would only be fair to let the Senate give input to the National Assembly Bill that was recently forwarded to the President for signing into law.

Kenya needs to avoid the resource curse problems that have faced mineral rich countries in Africa. For the most part poverty levels and human rights violations have increased and deplorable infrastructure persisted. The law should also help to guard against elite capture of Kenya’s mineral wealth.

Present realities of the mining sector also compel stakeholders especially Parliament to ensure the country’s citizens benefit directly and indirectly and use the revenue to improve livelihoods. Some minerals so far discovered and which have potential to transform livelihoods include oil, iron ore, titanium, coal, rare earths and gold among many others.

Managing the expectations of communities resident in the mineral rich areas is important to avoid conflicts. There should also be a clear demarcation of roles and responsibilities of all interested parties: the national and county governments, local communities and the mining companies.

The revenues will be better managed with a coherent and instructive law. That law alongside a policy that the Ministry of Mining has been working on will help inform issues like on licenses, fees and requirements for mining investments in the country. For potential investors and stakeholders at large, the rule of law and abiding to it by the authorities is imperative.

As such, the endless grandstanding and turf battles between the National Assembly and the Senate only serve to distract Kenyans from essential matters. Parliament represents the collective will of the people and has the responsibility to develop a good mining law to ensure the revenues are used for the betterment of society. Kenya is bigger than our individual or corporate interests. On a law, as weighty as this one is, all critical voices must be heard!





Rising Insecurity must be addressed yesterday

Posted by on 7th November 2014

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The rising insecurity in the country has to be handled with the seriousness it deserves. Security is one of the primary guarantees a government must offer its citizens. The current administration has handled the security docket in an incompetent, ineffective, inefficient or unconcerned manner.

Wanton loss of life has been reported in many parts of Kenya. In 2013, residents of Bungoma were killed mercilessly for a whole month unabated. The violence moved to Mandera, Garissa and Mombasa among other towns. Last week’s massacre of 21 police officers in Kapedo, Turkana County in a similar manner to the Baragoi one in 2012 where 42 officers died demonstrates the laxity with which the government treats security.

The government’s response has been generally slow and same lame fixes have been touted every time. Legislators from the joint Parliamentary committee on National Cohesion and Equal Opportunities led by chairman Johnston Sakaja recently vowed to push for amendment to the penal code for cattle rustlers be treated as suspects of murder and robbery with violence. They opined that these stiffer charges will help reduce the vice but it’s doubtful this would check the menace.

The flip side to that is how insecurity related incidences affecting the President and senior political figures have been addressed in record time. When the President was heckled at a function in Migori and former Prime Minister Raila Odinga attacked at a Coastal rally, the suspects were quickly arrested and arraigned in court. These two incidents affirm the ability of government to provide prompt security service and the same should be extended to all Kenyans without prejudice.

Article 238 (1) of the Constitution on the principles of national security is clear that ‘national security is the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity and other national interests.’ Major re-organization of the security sector in line with the 2010 Constitution has not borne fruit yet.

While poor pay and housing have been challenges to the sector since Kenya’s independence; poor coordination seems to be the greatest obstacle to effective service delivery. An IPOA’s report released in October cited poor coordination as the main course for slow response to attacks in the Coast of Kenya. The report also revealed corruption as a police officer attached to the Anti-Terrorism Police Unit allegedly helped terrorists to smuggle arms from Somalia, which were then used to launch the Mpeketoni attacks in Lamu County. Such reports reveal the state of disarray in the sector.

Hard decisions have to be made. Human life must be valued by the political leadership. The security docket must be handled with the seriousness it deserves. Office holders must be responsive to their call of duty and restore Kenyan life and dignity. Every Kenyan deserves Presidential level security as the past has shown, it is doable.



CDF must be planned and utilized prudently

Posted by on 30th October 2014

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A recent report on Constituency Development Fund (CDF) use published by the CDF Board calls for deeper interrogation on how exactly these public funds should be allocated and utilized. The Board declined to approve proposals from 137 constituencies as it termed them ‘not of public interest’.

Some reflection of what these legislators wanted would put it to better context. Voi constituency sought to use CDF money to take teachers on trips it termed “inter-county benchmarking”. Turkana Central Constituency wanted a Toyota Land Cruiser and a pick-up “fitted with all accessories, including electronic and manual winches”.  The Land Cruiser would have cost Sh6.5 million and the pick-up Sh6 million. The constituency in the arid Turkana County, with poor electricity and internet connection also wanted to hire a consultant to develop “an online bursary application system, students’ database, website, Facebook and Twitter handle and its management for one year.”

Many other projects would largely be duplication as they are functions of either the national government or county governments. Some critical issues arise from the above. The first is what informed these projects? The constitutional imperative and expectation of public participation is more likely to have been ignored. It is not possible that Turkana Central Constituency residents would prefer a want over a need.

Secondly, how and what should constituencies prioritize? Resources are always limited and only prudent prioritization will inform allocations that would benefit the people. Each constituency has its own dynamics and a ‘one size fit all’ solution cannot suffice. From the two examples, it is likely that the CDF offices decided on these projects from Nairobi.

There are also concerns over the constitutionality of CDF. Some critiques have argued that the fund violates various provisions of the Constitution. For instance, the Institute of Social Accountability (TISA) has a pending case in court in which it seeks to have the CDF declared unconstitutional and have it restructured in line with the current Constitution.

CDF is critical to poverty alleviation and economic development. It is another form of decentralized power and functions, apart from devolution, whose funds should be directed at ensuring the lives of Kenyans, are better.

What happens in the CDF planning stage matters. The planning must be as transparent as possible and include people’s input right from the committee selection through to the projects management. The people must come together to discuss and prioritize what projects they want funds allocated for and in what areas.

The constituency is recognized as a devolved unit at the Sub-county level. It therefore means that constituencies must work together with county governments to ensure that there is no duplication of projects. They have to be complementary right from the planning stage.

MPs have been very critical of Governors in how they spend their money. It cannot be that the practice of preaching water and drinking wine is condoned. MPs have to respect and follow the law to ensure the electorate feel the benefit of their leadership positions and associate with them.


Women inclusion in politics is beyond laws

Posted by on 23rd October 2014

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Supreme Court Judge Justice Njoki Ndung’u arguably reflects how best women Parliamentarians have a critical role in politics. Through focusing on one issue, sexual offences and drilling it down, she was able to birth the Sexual Offences Act 2006. The journey towards realizing that law was fraught in many hurdles but she never lost sight of what she wanted to achieve.

Today, while sexual offences continue to occur, the current regime is incomparable to before. Tougher penalties with broader definitions are ensuring that sex pests are locked out of society for more years. Society in general must be better enlightened through various forums while some repugnant cultural practices must be fought tooth and nail.

This highlights the debate around women inclusion in political office. Justice Njoki was nominated in the 2003-2007 Parliament and this birthed that law. Women continue to have a tougher challenge to win political office fairly in a contest with their male counterparts.

At the moment, constitutional provisions in Article 27 (8) and 81 (3) inform efforts towards ensuring that no gender has more than two thirds in public office. Reaching this milestone through appointments is straight forward. However where people are expected to exercise their democratic rights; more effort and tact is necessary.

The National Gender and Equality Commission (NGEC) is currently working on mechanisms of realizing that constitutional imperative. The law they come up with will be one hurdle passed. The real devil lies in culture and political parties.

Women lead in all other spheres of life including some homes except politics. Most cultures do not believe that a woman is an equally capable individual of leading a certain political constituency. Those who vie and win have to undergo a lot of cultural hurdles including in some areas convincing elders of their capabilities. This therefore calls for massive targeted civic education.

Political parties must also show leadership. They are the bedrock of political leadership. The law governing political parties must equally be amended to compel them to come up with strategies that will see more women in positions of leadership and critically well positioned for main elections.

In addition, the patron-client relationship in our politics where wealth is a good indicator of whether one will be elected needs to be addressed. Early restrictions on availing candidates to the electoral commission, like political parties to submit their candidates list at least six months before the elections, can be used to shift the debate from monetary influence to ideology. Ideology should inform the kind of development that aspiring leader will bring if elected.

Affirmative action to increase the number of women in political office is not necessarily a pedestal but recognizes the multiplicity of factors that reduce their role in active politics. It is this recognition that first birthed their nomination by political parties to either Parliament or County Assemblies. Only when better structures are in place, will merit and pure political campaigning be the basis for their inclusion.

Integrity must Inform the fight against corruption in Government

Posted by on 17th October 2014

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Two related issues have re-ignited the anti-corruption debate. One is the order from the Ethics and Anti-Corruption Commission (EACC) that State officers should not engage in harambees as it is against the law. Secondly is the decision by the President not to assent to amendments to the Public Officer Ethics Act (2003) that would have led to executive office bearers to take personal responsibility when adversely mentioned in corruption cases.

Kenya cannot afford to continue making anti-corruption efforts without actions being seen to work. Periodic reports from the Auditor General reveal glaring embezzlement of public funds. For instance, the report for the financial year 2012/13 notes “….out of the audited three hundred and forty three (343) statements only forty (41) statements or 12 % had a clean (unqualified) audit opinion while one hundred and seventy two (172) or 50%, forty five (45) or 13% and eighty five (85) or 25% statements had qualified, adverse and disclaimer of opinion.”

Thirteen per cent as adverse means that the ‘financial statements are so material and pervasive’ that concluding the financial statements will be misleading. Recently, Parliament has raised concerns over failure of public officers to provide critical documents needed for auditing. They stated that the officers who do not provide the documents will be held responsible.

Taking responsibility and rule of law is the main focus. On the one hand, Parliamentarians want other State and public officers to take responsibility of actions of commission and omission when managing public funds. On the other hand, Parliamentarians want a free hand to seek money from State corporations to facilitate participation in harambees. The concern raised by the EACC is that they compel heads of state corporations to give them money to use in harambees where they are chief guests. Governors are also part of the State officers EACC wants to check. .

In their expected callous fashion, parliamentarians have stated that they will disregard the directive. This is very unfortunate as they are not above the law. It is Parliament that birthed these laws and for them to decide which ones to respect and those to disregard is a clear sign they only want others to take responsibility other than them.

Rule of law restricts discretion and hinders wrongful exercise of power. It is also expected for mutual trust to prevail between all the arms of government and the people. Certainty of rule of law is critical in realizing development and attracting foreign investments.

The President should also not be seen to be protecting executive office holders. Stating that if they take responsibility will be discriminatory is insufficient. So far, not much has been done to fight the vice, apart from reshuffling finance and procurement officers in government. Rule of law should undergird the service rendered by all public officials. If they exercised their duties as expected there would be no need for harambees to win social capital. Your thoughts?

Public participation in governance and the place of mobile and web tools

Posted by on 10th October 2014

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Public participation in governance has been a reverberating issue since the promulgation of the constitution on August 27th 2010. While the Constitution did not expectedly give, the modus operandi of realizing it, it offered broad principles that should define good governance, transparency and accountability in public affairs. The Buntwani conference held earlier this week was therefore very critical in shaping this issue with a view to find ways, already being practiced, and new ones that could afford a lead to a better citizenry and service delivery.

Article 1 of the Constitution informs that the sovereignty of the republic belongs to the people who can exercise it directly and indirectly. Public participation is therefore backed by law in this article and complementary ones like Article 35 on the right to information.

Participation of the public in their affairs can take various forms: bills, policies, vetting of nominated officials, shaping of development agenda and budgetary oversight. When these issues are to be addressed, the public can participate in them either through public hearings or written memoranda.

The inaugural Buntwani conference underscored that web and mobile platforms built for use in citizen engagement efforts have been fairly successful. It was clear that ICT and innovation can and will play a role in ensuring county service delivery, citizen engagement, accountability and transparency.

ICT tools like the mobile phone make governance related information easily accessible and help people overcome the challenges of time and distance that often hinder or limit their participation. Many platforms geared at engaging national and county governments on various issues from budgets to health and education were showcased.

For instance, Mzalendo the web portal seeks to promote public participation by providing information on Parliament. It was interesting to note that Hon. Kenneth Okoth who was also present in the workshop periodically checks Mzalendo for his profile to ensure his details are well captured. He challenged other legislators to take advantage of the platform to enhance their visibility and Parliamentary work.

Regardless of the possibilities ICT tools offer in raising engagement, some challenges still need to be addressed for public participation in governance processes to be a reality. First, civic education needs to be carried as the public still does not understand the roles of the elected officials at the national and county levels. Secondly, speaking truth to power has to be promoted as a value as most Kenyans find it disrespectful and this entrenches the client-patron mentality. Thirdly, elected officials tend to be self-interested and make themselves inaccessible to the public during their term in office.

That notwithstanding, the opportunities for collaboration between government, civil society groups, media and technology experts to further the citizen engagement agenda are immense. There is need to tap into the increasingly youthful voter base, which is very tech-savvy by capitalizing on mobile phone applications and social media platforms to share accurate governance information. Initiatives like the Open Government Partnership (OGP) and data-backed journalism can also help further this agenda. Leveraging the power of radio cannot be underplayed either. The success of raising public participation in governance lies in these worthy efforts.



Question Time: To have Cabinet Secretaries in Parliament or not!

Posted by on 2nd October 2014

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Parliament’s move to have Cabinet Secretaries respond to questions in the created session called general oversight on Tuesday fails to abide by the Separation of powers principle as the Constitution envisions. One of the reasons CSs were supposed to be technocrats are they are to engage Parliament on the technical level at committee stage. Going to Parliament plenary is not their role.

The move by Parliament seems calculated picking from sentiments from legislators who want to amend the constitution to allow the President to pick CSs from Parliament. This move could therefore be a rehearsal to that possible constitutional amendment.

The decision raises fundamental questions of law and practice. For instance, how different would these sessions be from Committee sessions have yet to be defined! Also, would they also attend to committees in addition to these sessions? It is tantamount to MPs wanting an opportunity to show might over the Executive as they stump that they are the people’s voice.

Institutions like the Commission on Implementation of the Constitution (CIC) and the Attorney General’s office have differed with this move. CIC has for instance termed it unconstitutional and considering moving to court to challenge it. The AG also has a problem with the idea.

Parliament’s question time is arguably the best platform on the representation and oversight roles of legislators. They are supposed to utilize this session to ask questions regarding different issues affecting individuals, institutions and any general concern about the welfare of Kenyans to the Executive.

The 11th Parliament has utilized, as required, committees which should be the way to go. Most of these committee sittings have also been accessible to media who would then inform the public on the issues being discussed.

Already, some cabinet secretaries like Fred Matiang’i and Charity Ngilu have raised worthy concerns on how different this would be and alerted of its possible interference with the Executive’s work. The move certainly amounts to interference with the smooth workings of the Executive, something the CIC affirms. It raises more concerns as the legislators insisted that the CSs must be present in person.

Question time offers a unique avenue on realizing indirect public participation as it involves elected leaders raising issues largely about oversight. But this question time does not necessarily have to involve CSs in the August House. So far, it has realized its intended objectives through practice as it should soundly be.

The separation of powers principle will be betrayed when this move becomes effective on 14th October. Only if and when the Constitution is amended can this move by legislators be accommodated.

What do you think?

Courts, Parliament ‘Supremacy’ Battles Unwarranted

Posted by on 25th September 2014

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By Shitemi Khamadi

Parliament is aggrieved by the Judiciary in how it has exercised its powers in the recent months. On Tuesday 23rd September, when the Senate resumed sittings, Senators led by nominated Senator Beatrice Elachi discussed the Judiciary at great length. They were all united that the Judiciary is overstepping its mandate with its temporary orders that are impeding the work of the house. Two weeks ago, the National Assembly had raised the same concern.

In fact, National Assembly speaker Justin Muturi is on record castigating some court orders as ‘stupid’. These comments have largely been expressed in the 11th Parliament. The reason could be that each institution is finding its space within the constitutional dispensation that is four years old. It will take time for both to underline and live in spirit with this separation of powers principle.

James Madison, the fourth US President (1751-1836) once said “… the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others… Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government.”President Madison appreciated humans are not angels, as such, ambition defines man’s desire to exert power and influence, which is likely to go beyond constitutional restrictions.

Article 93 (2) states that parliament shall perform its function in accordance with the constitution. Article 94 (1) adds that the legislative function of parliament is derived from the people. In general, parliament has three distinct roles; legislative, oversight and representation.

On the other hand, Article 159 (1) is explicit that the judicial authority is derived from the people and shall be exercised by courts and tribunals established under the constitution. Article 160 (1) explains that the judicial authority of the Judiciary shall be subject only to the constitution and the law and shall not be subject of control or direction from any person or authority.

From above, it is clear that;

  1. Each institution derives its powers from the people,
  2. Each institution does not take direction other than the constitution,
  3. They all have distinct functions enumerated in the constitution.

Parliament can decide to censure the Judiciary in whatever manner but until the constitution is changed, Judiciary will stamp its authority as the law expects. Litigation has been a common practice under this constitution as a way of resolving disputes. This practice is unlikely to end despite provisions in Article 159 (2) (c) that encourages alternative dispute resolution mechanisms.

Parliamentarians should therefore ensure they always abide by the law so that their decisions are not impeded by temporary court order or injunctions. Separation of powers is a gift the constitution prides the country and all leaders must learn to respect and abide by it. Your thoughts?


Powers and Privileges Bill 2014 Unsound

Posted by on 18th September 2014

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By Shitemi Khamadi

Sections of the proposed Parliamentary Powers and Privileges Bill, 2014 of Kenya that touch on access to information not only contradict the Constitution but also fail to align to basic democratic tenets that Kenya has gained so far.

Article 35 of the Constitution provides for the right of access to information held by the State. This is the guiding principle applicable to parliamentary processes that Parliament must be open, transparent and accountable to the public in its lawmaking and policy making functions.

Media coverage of Parliamentary proceedings is a good test of the democratic vigor of a country hence progressive parliaments need to ensure they do not give something with the left hand and take it back, further with the right hand. They must be reluctant to adopt measures that limit criticism or the flow of information to the public. It is also a cardinal duty for parliaments to review restrictive legislation which may date from a less democratic era.

The proposed Bill is a step backwards especially coming at a time when the world commemorates the International Democracy Day and also convenes the Global Legislative Openness Week in which open and transparent parliament is one of the key issues. For instance, section 34 of the Bill states that;
A person commits an offence of the person
a) Publishes any false or scandalous libel on Parliament, its committees or proceedings or
b) Speaks words defamatory of Parliament, its committees or proceedings

This provision is regressive and offends Article 34 (2) (b) of the constitution which provides that the state shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination. That section attempts to re-introduce criminal libel laws which the 2010 constitution effectively abolished.

In addition, Kenya is a signatory of the Open Government Partnership (OGP) network in which parliamentary openness, transparency and citizen engagement is a core component. Making parliamentary information open is critical to empowering citizens and strengthening their capacity to participate in parliamentary process and increase accountability.

For instance, the renovation of Parliament included the electronic registration and voting system that cost sh920M, a colossal amount of taxpayers’ money. It follows therefore that information on attendance and voting recorded on this facility should be made accessible to the public.

The recent case in which Emgwen MP Alex Kimutai Kosgey was accused of not attending to parliamentary business but let off the hook claiming the biometric login system record is not up-to-date is wanting.

Reason and the rule of law must prevail at all times. Parliamentarians are peoples’ representatives, and information on their activities; plenary, committee sessions and reports should be accessible by the public.



Of Politics and Values

Posted by on 12th September 2014

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By Shitemi Khamadi

Thomas Paine, the English-American political activist stated that “what we obtain too cheap, we esteem too lightly: it is dearness only that gives everything its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated.” These words reverberate when reflecting on the Kenyan politics of the day.

This past week has evidenced news on magnitude of greed from the politicians. Senators want higher remunerations and details of allowances from sittings and mileage of Members of Parliament have been reported with some expected defense from some legislators. These elected representatives were given the mandate to undertake their various duties by the voters in the March 2013 General Elections.

They are therefore supposed to be acting in the public’s confidence and trust. It starts with campaigns when aspirants seek for votes. There are those who will present their manifestos at the individual and party levels. They would be eloquent and exhibit the ideal leadership tenets needed to address certain problems. There are also others who in addition, oil their campaigns with money and other goodies.

The song Fuata Sheria (follow the law) by Sarabi Band and Juliani has a line which says “…t-shirt, 50 bob, leso, siku ya campaign ilikuwa free! ni five year long investment, utalipa akiingia parliament…” (the t-shirt sh50, wrap, during the campaigns were free! It is a five year long investment that you will pay when they gets to parliament). The song is critical of both the leaders who use power and influence for selfish gains and the public who are equally replete with using unlawful means to get by.

This brings into focus the place of values in a society. The constitution does well to enumerate them in Article 10. Religious institutions do their part in imparting the good word during days of worship and in reading the scriptures. But as Dalai Lama aptly points out, it is about the individual and what he or she feels is most critical.

As a people, what is that which can rally the country united devoid of prejudices! Regardless of the answer, does what the public values vis-à-vis what parliamentarian value change once they are sworn into office?

The responsibilities of leadership as enshrined in Article 73 of the constitution, expect leaders to demonstrate respect for the people, bring honor to the nation and dignity to the office and promote public confidence; core tenets that would inspire public trust. These qualities consolidate the expectations on national values in Article 10 specifically integrity, equity, equality, human dignity, inclusiveness and social justice.

These ideals should inform leadership right from when one intends to run for office. It is an expectation that further inspires the spirit of chapter six of the constitution. A careful inspection of Parliamentarians activity within and outside the House reveals, none of these provisions inform them. The August House to them is a market place to amass wealth and endear selfish interests.

There is this governance practice of respecting the office that one holds. The individual could be callous and inept but the office needs to be firm in what its mandate is. To what extent does the quality of the person influence the office they hold? It does a great deal, regardless of level of education but driven by passion and commitment to service delivery.

Do Kenyans expect too much from leaders after the ballot? Are they justified to call the legislators greedy yet they played a core role in accepting goodies in exchange for votes? Are the leaders being accused of something society has accepted hence the gun should be pointed elsewhere? The dynamic has to be changed. Change is a process and it starts with a conscience voter making the right and informed decision at the ballot. Thoughts?