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May 18, 2012

11:18

On the Kshs. 200 million Responsibility Allowance

Recently the country has watched in incredulity as members of parliament have legislated massive payouts to be made to themselves at the end of their term. The three of payments of note are; the gratuity of almost 1 billion shillings to be paid out MPs at the end of current parliament, the President’s gratuity and pension, and the Kshs. 500 million to for MPs back taxes. Now parliament seeking to amend legislation to increase both the amount of responsibility allowance and the number of persons in parliament entitled to responsibility allowance. Not only this but MPs want the responsibility allowance backdated to 2006, and possibly 2003.

According to the Standard “last month Parliament approved a new responsibility allowance for key MPs this allowance is to be back dated to January 2006, and if the motion to amend Statute Law (Miscellaneous Amendments) Bill, a bill that allows government to make changes to various laws succeeds the responsibility allowance will be back dated July 2003.”

Responsibility allowance was previously paid only to the House Speaker and Leader of Government Business. However if the amendment is passed the Speaker, the Deputy Speaker, and four members of the Chairman’s Panel will each receive 2.4 million shillings for every year served from 2006. And the 9 members of the Parliamentary Service Commission will also receive 1.2 million shillings for every year served since 2006. Other amendments will entitle the Speaker to Kshs. 20,000 for each time he presides over parliamentary business. The Deputy Speaker and four temporary speakers will be entitled to Kshs. 15, 000 and Kshs. 12,500 respectively for every time they fill-in for the House Speaker. Considering that parliament sits three times a week, for several weeks in the year, and the payments are to be backdated from either 2006 or 2003 the amount really adds up. It is estimated that the government will pay at least 200 million shillings in responsibility allowances to dozens of current and former MPs if the amendments are passed.

I’m not sure what the exact definition of responsibility allowance is, particularly since those entitled to it already receive a salary to carry out their responsibilities. What I am sure of is, a year and a bit since the promulgation of the new constitution it would seem that members of parliament have either forgotten, or wilfully refused to heed to Chapter 6 of the constitution which calls all state officers, MPs included, to provide selfless service based solely on the public interest; accountability to the public for decisions and actions, as well as discipline and commitment in service to the people.

May 14, 2012

14:59

President’s Gratuity: How much is Too Much?

» ‎ Mzalendo.com

Not do we have one of the highest paid legislatures in the world but I’m quite sure that our President is also one of the highest paid in the world. This week the Nairobi Star ran a story on the gratuity that the President would be receiving come the end of his term in office. According to the report:

“When President Kibaki walks out of state house after the next elections he will go home with a hefty gratuity of 50 million shillings…In addition to the one off payment the Finance Minister, Njeru Githae, has proposed to increase the annual allocation for retired Presidents from the current 17.7 million shillings to 30.2 million shillings. The increase is meant to cater for the monthly pension which is due to Kibaki plus what tax payers have been paying to ex-President Moi since 2003…the gratuity is considered a ‘token of appreciation’ from Kenyans to the President for the hard work that the President has been doing for the two terms he will have served by the time he leaves office. The amount is calculated as a sum equal to one year’s salary for each term Kibaki has served as President. Kibaki will also be entitled to get a monthly pension equal to eighty per cent of his current salary of Sh 2 million a month, approximately 24 million per year.”

The President’s gratuity is the highest to be paid in the history of the country and has already been factored into the 2012/2013 budget. The gratuity is also projected to rise by approximately 1 million shillings year on year in the 2013/2014 and 2014/2015 fiscal years. This comes on the heels of the increase of the gratuity to be paid to MPs at the end of their term.

Given the state of the country, high inflation, high unemployment, high cost of living, the huge budget deficit, the recent move by the Cabinet to cap the salaries of civil servants, you would think implementing austerity measures across the board would be chief among the governments priorities, particularly for a group the what are already amongst highest bracket of earners in the country.

In country that is run by not just a President, but a Prime Minister, a vice president, and two deputy prime ministers, this sort to development is worrying. What are your thoughts on the proposed gratuity for the President?

May 04, 2012

12:23

Is the Public Education Sector Broken?

» ‎ Mzalendo.com

A decade or two ago the premise existed that if you did well in primary school you went to high school, if you did well in high school, you went to university, if you did well there, you got a good a job, with a respectable salary and went about the rest of your life in a more or less progressive manner.

This of course no longer holds true. This year only 41, 879 of those that sat their KSCE exams last year, i.e. 2011, will be admitted to public universities. That means more than half of the 118, 256 students who qualified to join public universities will not be selected to join, due to lack of places. The number of students that will miss out on secondary school slots is even higher. This year the Ministry of Education estimated that approximately 205,000 pupils who sat for their KCPE exams in 2011 would miss a place at secondary school. Of course the option to go private exists but the cost of private education is prohibitive for most Kenyans.

Those that make it out the other end of the education system, and successfully graduate from university, do not always fair as well as expected in the “real world”. Not only is there a shortage of jobs for graduates to take up, the current system of education has been accused of producing graduates that are not fit for the work place. The heavy workload of the current system of public education has been said to reduce learning to cramming for a series of standardized tests while imparting very few skills necessary for the workplace. And these are not the only isssues, apart from the problems inherent to the system of education itself, the education sector seems to be in a state of crisis i.e. the misappropriation of funds for the provision of free primary education; frequent strikes by teachers over low wages and understaffing; accusations of unfair distribution of education bursaries…the lists seems endless.

However despite the problems with the education sector/system and that the fact that the benefits of education are no longer linear a good education remains a crucial element in breaking the cycle of poverty. A good education system is represents the largest investment that that government makes in human capital. Ideally education should work to develop a constituency that is knowledgeable in evaluating options based on available evidence and criteria i.e. the education should help us makes educated decisions, but does our current education system do that or is it broken? How would you the rate state of public education in Kenya, not just for quality or its transformative effect on the lives of individuals who receive it, but also for the effect of public education on the development of the country, and in the building, sustainable democracy – good, bad or average? And is the government playing an effective role in education reform?

April 27, 2012

16:42

500 Million For MPs Taxes?

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Members of parliament are seeking 18 billion shillings for their budget in the next financial year. Ostensibly the amount, that is more than double what the MPs requested for the current financial year, is to cover the cost of the cost of the new Parliament which will have almost double the number of MPs. However the fine print of the budget document tabled by the Parliamentary Service Committee Chair, Dujis MP Aden Duale, reveals something that is both alarming and disturbing.

According to a report in the Daily Nation, “the legislators want the Treasury to set aside a Kshs. 500 million [of the 18.1 billion] to cover taxes of the MPs of the tenth parliament (the current one) between July 1st when the financial year began and January 15, 2013 when the term of the Tenth Parliament expires. The Kshs. 500 million will bring the total tax bill that taxpayers foot for MPs to Kshs. 2.5 billion. The MPs tax bill has been accumulating since August 27, 2010, when the new constitution was promulgated.”

The request for the Kshs. 500million to cover the cost of MPs taxes comes on the heels of the legislators assent to amend the National Assembly Remuneration Act to allow MPs to accrue Kshs. 3.72 million each as gratuity at the end of the term of the current parliament.

From the dexterity with which the members of parliament have managed to collate their individual tax bills and pass this on to the taxpayer, it would appear that both the meaning of tax and how it works is either completely lost on or being purposely disregarded by MPs; who are not only amongst the highest paid MPs in the world but have enjoyed tax free salaries and benefits from 1975 until 2010 when the constitution made it law for all State Officers to pay taxes.

It is clear from the recent actions of the MPs of the tenth parliament that if policy or law is poorly executed through a failure of leadership it is as good useless. In our system of government MPs are meant to be our representatives and they are meant to represent our views and our interest. But from their recent actions it would be fair to ask whose interests the members of the parliament working in? It would be interesting to see the response of Salaries and Remuneration Commission, the body that was created to meet the overwhelming demand by Kenyans for an independent body to set the salaries of State officers?

April 26, 2012

12:08

On MPs’ Kshs. 3.72 million Gratuity

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If there were a fairness test applied to the bills passed by the National Assembly the most recent, almost unanimous, decision by the Members of Parliament to enact a law that awards the Members of the National Assembly a gratuity of 3.72 million shillings each would certainly fail.

MP Millie Odhiambo Mabona, one of the few MPs that opposed to the amendment stated of it, “I will not be party to unfairness to this country. Members of parliament have refused to reduce interest rates for members of the public, but when it comes to our own things, we are quick and sneaky.”

Our Members of Parliament are amongst the highest paid in the world and last week they amended a law to allow each of them to accrue 3.72 million shillings as gratuity at the end of the term of the current parliament. The amount represents 31% of the annual salary that an MP earns. So the total cost of the MPs gratuity to the taxpayer comes close to a total of 1 billion shillings, 825.84 million shillings to be exact (3.72 million shillings multiplied by 222 members of parliament).

Gratuity/severance for Members of Parliament is nothing new. Before parliamentarians amended the law they were to receive as their gratuity, 300,000 shillings per annum on a flat rate for each of the 5 years of their term i.e. a total of 1.5 million shillings. On Thursday last week the Finance Minister, Njeru Githae, proposed an amendment that would see this amount more than doubled. The Finance Minister moved a motion to amend the National Assembly Remuneration Act by deleting the words “A severance at the rate of Kshs. 300,000.00 for every year in service” and substituting those words with “A severance allowance at the rate of thirty one per centum of the salary.”

The move to double the gratuity of Members of Parliament comes at a time when: inflation is in double digits approximately 17%, the cost of living is at an all time high, the Parliamentary Budget Office has warned of the dilemma the government is facing financing the next budget due to the country’s current budget deficit. The government is also in the midst of pay disputes with crucial civil service sector workers and is faced with intermittent strikes from doctors, nurses and teachers over salaries. Most recently the Kenya National Union of Teachers warned the government that its members will cease work on July 1st unless the government hires more teachers and starts negotiations for a 300% salary raise agreed on earlier this year. In light of these factors the decision to amend the law to double the gratuity of the members of the 10th parliament seems to me to be a case of wrong choices, priorities, and values.

The irony of the move by parliament to double the gratuity of its members is the fact that in same week the government made a decision to cap the salaries of civil servants at both national and county levels requesting that, “public servants be sensitive to the plight of the taxpayers.”

April 23, 2012

10:20

Politics, Elections and Integrity

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The issue of integrity is crucial to political leadership. In the new dispensation the issue integrity has dramatically risen in importance. Taken at face value it seems to be the intent of the constitution that the issue of integrity in political leadership become one of the top voting considerations.

The whole of chapter 6 of the constitution lays down the principles upon which the State Officers (the President, the Deputy President, other members of the Cabinet, Members of Parliament, members of the new County Governments, judges magistrates and members of commissions) should conduct themselves. The chapter makes it clear that the power exercised by State Officers is a public trust that is to be exercised to serve the people. In exercising this power, state officers are required to demonstrate respect for the people of Kenya, make decisions objectively and impartially, refuse to be influenced by favouritism or corruption, serve selflessly and be accountable for their actions. These are the standards to which we should hold the leadership we intend to elect.

The Independent Electoral Boundaries Commission (IEBC) recently announced that politicians who failed the integrity test would be barred from running in the up coming elections. According to the IEBC regulations, “ A party shall not present to the Commission for purposes of nomination, a person who does not meet the qualifications set for a particular office under the Constitution, the Act or any other Act of Parliament.”

The yet to be passed Leadership and Integrity Bill fleshes out the requirements of the Chapter 6 of the constitution: And Article 35, of the yet to be passed bill, bars persons with integrity deficits from running in the next election stating “A person seeking to be appointed or elected as a state officer may not be eligible for appointment or to stand for election to such office if that person has, as a State Officer, contravened the leadership and integrity Code under this Act or while serving as a public officer, has contravened a code of ethics and integrity applicable under this Act.”

Over the years we have had a large number of scandals in which the leadership of the country have been implicated, the Maize Scandal, Kazi Kwa Vijana, Goldenberg, Anglo-leasing, post election violence, and the list goes on. The consequence of these scandals has been everything except but out right conviction: we have had ministerial resignations/stepping down, adverse mentions of persons in leadership in reports of commissions of enquiry, some leaders have been the subject of civil and criminal court proceedings that have either been dismissed, had a ‘nolle prosequi’ issued or are still pending.

While legislation goes some way in trying to ensure that Kenya has scrupulous leaders, by and large the greatest responsibility with regard to ensuring the country’s leaders exhibit to political and personal integrity lies with the voters. But how often do we as voters take into account the past record of our prospective leaders? How do we as voters evaluate a prospective candidate’s integrity? Or do considerations other than personal and political integrity of prospective candidate’s take primacy in our voting considerations?

April 20, 2012

9:54

On The Cost of Elections

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The next election will cost an estimated 15 billion shillings stated the Finance Minister, Njeru Githae, earlier this week. 15 billion shillings represents the largest budget for an election since the country’s independence. According to various newspaper reports the amount is a 300% rise from the cost of the 2007 elections, and 6 billion shillings more than was spent on the 2010 constitutional referendum.

Electioneering is expensive and the bigger the elections the higher the cost. In the first election under the new constitution, in one day at least 20 million Kenyans are expected to vote, in six electoral contests (President/Deputy, Member of the National Assembly, Special Women Ballot, Senator, Governor/Deputy, Members of the County Assemblies), taking place in 290 constituencies and 1,450 wards, plus other special seats elected on the basis of a party list. All this of course comes at a cost. The 15 billion shillings is mostly for the administrative and logistical part of running the elections, and does not factor in the billions of shillings that it will cost to the run the new government once it is in place. Clearly politics remains resilient even in a poor economy.

Since this is the first election under the new dispensation there is little way of telling if there is an equally efficient but less expensive way to run the upcoming election. However I am sure like myself a lot of Kenyan are questioning whether 15 billion shillings for the election is on the high side, given the size of the country. The question that immediately springs to mind regarding the cost of the upcoming election is, “where is the money going to come from?” Parliament’s Budget Office has already projected a shortfall of up to 27 billion shillings in the next budget. It stands to reason that part of the cost of the election process will be loaded on to the taxpayer’s bill.

And if there was any doubt that the tax payer will be footing at least part of the bill for the election, the Parliamentary Budget Office brief to MPs titled “Managing the Transition Budget options for 2012/2013, and the Medium Term” confirms it noting that, “the current mix of tax instruments cannot provide sufficient resources…the new Constitution has resulted in expenditure which has resulted in a bulging budget. There is an increasing pressure on the government to increase tax collection. This translates into an increased burden on the tax payer.”

Being a taxpayer there are of course questions about accountability, transparency and the watching/auditing the election budget. Equally important in such an expensive is ensuring making it count.

What are your thoughts on the expense of the upcoming election?

April 13, 2012

17:02

Political Party Financing

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Politics is heavily dependent on funding. All parties and candidates need money to finance campaigns. But how often do we, the electorate, query how or from where political parties/ political candidates mobilize campaign funding, and how the manner in which campaign financing influences the electoral process and the direction of future public policy. The way that political parties and political candidates are financed has a direct discernible effect on representation. Very few candidates are able to self-finance political campaigns without external contributions. Lack of clarity and transparency in the manner which the countries political parties and candidates are financed creates a persistent feeling that candidates and political parties can and are frequently bought, and that the ‘other’ interests are constantly are being placed above the interests of the electorate.

Both the constitution and national legislation i.e. the Political Parties Act 2011 and the Elections Act 2011, provide for the regulation of political party financing. In the constitution Article 92 (f), (g) and (h) requires Parliament to make laws for the establishment and management of state funding for political parties through a political parties fund; for the audit of accounts of political parties and laws to ensure restrictions on the use of public resources to promote the interests of political parties; Sections 23-31 of the Political Parties Act 2011 that deals with the issue of funding and accounts for political parties restricts sources for political party funding to:

State funding via the Political Parties Fund;
Membership fees;
Voluntary contributions from a lawful source;
Donations, bequests and grants from any other lawful source, not being from a non-citizen, foreign government, inter-governmental or non-governmental organization; and
The proceeds of any investment, project or undertaking in which the political party has an interest.
Foreign agency, or a foreign political party which shares an ideology with a political party registered in Kenya, may provide technical assistance to that political party.

Ideally the laws on political party/political candidate financing should even the playing field ensuring the one party/candidate does no so dramatically outspend another giving them a disproportionate influence over the voting public.

However despite the existence of a robust legal framework for regulating political party financing a Global Integrity report ranked Kenya amongst the lowest-scoring countries in terms of the political finance regulation. The report scores the countries based on effectiveness of laws regulating individual and corporate donations to political parties as well as the auditing of these donations and campaign expenditure.

While the country scored 67 out of 100 for its regulations on political financing regulations, it scored 0 out 100 for effectiveness of these regulations. The country also scored 0 out of 100 on implementation of laws governing political financing and disclosure of political party/political candidate financing information to the public, an aspect the report stated was non-existent in the country. In lay speak we have the laws, but no one is implementing or enforcing them.

The results, particular the zeros in enforcement, and implementation of political party financing regulations, may seem alarming; but when you really think about it how transparent are political parties/political candidates about how and from where they receive their funding; and how accessible information on political party/political candidate financing?

13:35

Public Retraction: Tigania West CDF Mismanagement

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April 06, 2012

17:52

Fewer Political Parties a Good Thing?

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Political parties are an important of any democracy. Political parties provide a connection between politics and society. Parties develop policy agendas, recruit and select candidates for public office, monitor the work of elected representatives and eventually form governments. However the most important function of political parties is that they ensure different choices in the political marketplace not only in terms of candidates but also in terms of ideas.

However having too many political parties is bad for democracy, they are hard to vet, monitor and keep a tab on. Before 2007 Kenya had more than 300 political parties. 168 of these were registered with the Registrar of Societies, of these parties 117 nominated candidates to run for the National Assembly in the 2007 elections. Can you imagine every voter having to go through 168 party manifestos to determine which party and which candidates hold their ideals, its no wonder voters simply chose ethnicity, and personality as deciding factors in their voting choices.

Fortunately by 2010 the number of Registered Parties was reduced to 47 by virtue of the fact that a majority of the parties registered under the lenient regieme of the Societies Act failed to meet the registration requirements of the Political Parties Act 2007. The promulgation of the constitution in 2010 and the enactment of the Political Act 2011 will probably see the numbers of political parties reduced even further.

In order to gain full registration under Section 7 of the Political Parties Act 2011 a political party must demonstrate:

It has recruited as members, not fewer than one thousand registered voters from more than half of the countries counties;
That its members reflect regional and ethnic diversity, gender balance and representation of minorities and marginalized groups;
That the composition of its governing body reflects regional and ethnic diversity, gender balance and representation of minorities and marginalized groups;
That not more than two-thirds of the members of its governing body are of the same gender; and
That members of its governing body meet the requirements of Chapter Six of the Constitution and the laws relating to ethics;

(Full political parties compliance checklist here)

The importance of registration of political parties lies in the fact that although Article 85 of the constitution allows independent candidates to run in the next election – “Any person is eligible to stand as an independent candidate for election if the person is not a member of a registered political party and has not been a member for at least three months immediately before the date of the election.” – political parties remain the main vehicle through which candidates are elected/nominated to political office. Apart from independent candidates only members of registered political parties can stand for the general election, this underscores the importance of registration of political parties, which closes at the end of this month (April 30^th 2012).

So far out of the 47 parties registered under the 2007 Political Parties Act only 15 have submitted documents to the Registrar of parties to show compliance, and only 5 have fully complied with the requirements of the Political Parties Act 2011 and been granted full registration.

However fewer political parties may actually prove to be a good thing. Fewer political parties will be easier to vet and monitor. It will be easier for voters to determine what political parties stand for and be able to hold the political parties for proper performance of their function as political parties. Hopefully with the new legislative requirements for political parties we will begin to see a shift from political parties as an outgrowth of ethnic movements to political parties with a more national outlook leading towards better representation.

March 30, 2012

15:12

Oil in Turkana

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“This morning, I have been informed by the Minister of Energy that our country has made a major breakthrough in oil exploration. This is the first time Kenya has made such a discovery and it is good news for our country,” stated President Kibaki as he announced the discovery of oil deposits in Turkana. Though the Energy Minister, Kiratu Murungi, has warned that the find is only the results of the preliminary prospecting, and that the oil production is unlikely to commence for at least three years. The oil deposits are relatively large, worth approximately USD $250 billion, almost ten times more than country’s annual GDP, significant enough to change the country’s political and economic trajectory.

However whether the discovery of oil in Turkana, one of the poorest places in the country, is a going to be a good thing for the country and the region remains to be seen. Intuitively one would theorize that the discovery of such large oil deposits, in one of the country’s poorest areas, is a good thing. The discovery of such large amounts of oil represents huge potential for the region’s and the country’s economic and political development and could give a “big push” to the economy through more investment in economic infrastructure and more rapid human capital development.

Having said that, its important to point out that economic growth is not an automatic effect of the discovery of mineral resource wealth. Look at the example of other resource rich countries on the continent. Governance i.e. the quality of regulation and the predictability of changes of regulations, anti-corruption policies, such as transparency and accountability in the public sector, will be important for effective natural resource management and will be critical determinants of the extent to which the growth effects of the discovery of oil will materialize. And quite frankly we’re not doing too well in any of those departments.

It has only been two days since the President announced the discovery of oil and there has already been a scandal surrounding the sale of land in Turkana. Yesterday the Daily Nation reported that in 2010 a Cabinet Minister’s firm sold a Turkana oil block for more than 800 million shillings. The Daily Nation reported the story as an example of how small firms might be using influence in the government to make hundreds of millions of shillings by trading in oil prospecting licences.

“The way the game is played is all too familiar: as a well connected speculator the first thing you will do is make sure that the obligations in the license are as minimal as possible and that the terms will not require you to spend too much money. With the license in your hands, you make sure that you are in a position to influence government officials to vary the terms as many times as possible as you wait for the opportunity to “flip”/sell the license at a handsome profit,” said the Daily Nation (full story here).

Such dealings will inevitably create scenarios in which oil licences can be allocated to inefficient/corrupt cronies of government regardless of performance criteria. Add this to the country’s fragile institutions and factionalized politics, and the resource gains from the discovery of oil may be lost. Of course the potential problems are not inherent in the discovery of oil, which in itself is a good thing. The issue is whether or not the resource is successfully managed and whether political structures and institutions will support sustained economic growth from the oil.

What are your thoughts on the discovery of oil in Turkana, blessing or curse?

March 29, 2012

15:40

MPs March 4 2013 vs. Dec 17 2012

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March 23, 2012

14:01

Elections: March 4 vs. December 17

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Setting the date of the next election was never going to be an easy fix. Yes the constitution calls for the election of President, Parliament, Senate, county assemblies and county governors to be held, “on the second Tuesday in August in every fifth year.” However Article 9 (1) of the Sixth schedule of the constitution also provides for the first elections for the President, the National Assembly, the Senate, county assemblies and county governors to be held within 60 days after the dissolution of the National Assembly at the “end of its term.” Also Article 10 of the same schedule provides for the National Assembly existing immediately before the effective date of the constitution to continue for its “unexpired term.”

Determining the time frame for what constitutes the unexpired term and end of the term of the National Assembly has become central to the determination of the election date. Despite the fact that the debate on the date of the next election has been going on for over a year there seems to be neither clarity nor precision on exactly when the next election will be held. When exactly the does the term of the current National Assembly end? When do we begin to count the start of current National Assembly’s term in order to determine the date of its expiry? Do we start counting 5 years from December 2007 when the Parliamentarians were elected into office? Or do we begin to the count from 15 January 2008, the time at which Parliament opened?

Interpretation of the constitution with regards to the determining the exact time frame of the National Assembly’s unexpired term and consequently the next election date seems to be an exercise in buck passing. MPs first brought up the issue of the impossibility of an August election in late 2010 citing their unexpired term. The cabinet then proposed a constitutional amendment to ensure that the current National Assembly would sit for its full term. The Commission on the Implementation of the Constitution (CIC), opposed to the Cabinet’s proposed amendment, sought the Supreme Court’s intervention on the issue of the election date. The Supreme Court declined to give its advisory opinion on the date of the next election and ordered the High Court to making a ruling on the election date, citing the High Court’s primary role of hearing constitutional matters. The High Court in turn ruled that date of next election was a matter for the President and Prime Minister to decide.

Stemming from the failure of the President and the Prime Minister to reach an agreement on the date of the next election; and in order to, “remove uncertainty, anxiety and suspense” surrounding the election date, the Independent Electoral and Boundaries Commission (IEBC) recently announced that the next general election would be held on 4^th March 2013. The IEBC showed the clarity and decisiveness in announcing a definite date for the next election. However this has been eroded by the IEBC’s ensuing announcement that if push came to shove, elections could be held on 17^th December 2012. The March date is not cast in stone yet, parliament, the courts, the two principals working in conjunction could still change the date.

In the meantime the IEBC’s announcement the 4^th March 2013 election date has elicited a range of the responses:

The CIC has thrown its weight behind the IEBC decision to have the next election held on 4^th March 2013 stating that date is in tandem with the constitution (read the CIC full statement on the election date here). The President has supported the March 2013 election date, while the Prime Minister has been vocally opposed to it. Presidential aspirants William Ruto (MP Eldoret North) and Martha Karua (MP Gichugu) have also opposed the March 2013 date. MP Martha Karua has called the March 2013 date unconstitutional and has stated she will stop accepting her salary as an MP in December of this year. Despite vocal opposition from some quarters several MPs support the March 2013 date. According to nominated MP Mohammed Affey, “ Most MPs favour a March date.” North Horr MP, Chachu Ganya speaking in support of the Mach date has stated that the March date should not be seen as an issue of MPs trying to earn from more extra months, but instead as MPs looking at the bigger picture of setting the right laws in place. According to Kabando wa Kabando (MP Mukuwe-ini) “MPs are not likely to shorten their terms because 72 per cent of them [will] lose elections,” he has also said, “three months is a small price to pay in clearing parliamentary business and laying a constitutional foundation for Kenya.”

What are your thoughts on the election date?

March 19, 2012

12:41

Parliament: MPs Cash for Votes

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After parliament’s about turn on the issue of the Central Bank Governor’s role in the decline of the shilling written about here, accusations emerged that MPs were bribed in order to change their stance on the sacking of the CBK governor. Shakeel Shabbir, MP for Kisumu Town East, member of the Finance Committee, and member of the Parliamentary Select Committee on the Depreciation of the Shilling stated money was paid to MPs to have the name of the Central Bank Governor and all the recommendations touching on his office expunged from the Committee’s Report.

“A journalist called me two days ago and asked me if I thought MPs were corrupt, or if I thought money had changed hands in the debate on the (decline of the) shilling report. I said no. I tried to defend the MPs but after what happened yesterday, I can say that MPs are corrupt! People were paid. They took money” Shakeel Shabbir stated when questioned about whether MPs accepted cash to change their position on whether the Central Bank Governor should be relieved of office.

The Star newspaper reportedly, “spoke to four MPs who confirmed receiving payments to support the removal of Ndung’u’s name.”

According to another newspaper report, “To most MPs, such deals are part of the lobbying. The payments range from Kshs. 5,000 to Kshs. 200,000, but some get more, depending on how they are viewed in the House. Those known to be guns for hire cost more. The MPs congregate at an office in Parliament or in the lavatory to get paid.”

This is not the first time MPs have been accused of accepting money in exchange for voting a certain way. Similar accusations of cash for votes were made when the report on the maize scandal was thrown out and during the debate on the parliamentary report on the fraudulent purchase of the Kshs 1.1 billion in Japan.

Considering how quick the government is to form special ad hoc committees, tribunals, or commissions to investigate anything and everything; and considering the gravity of the allegations of corruption within parliament one would think a special body would be set up to investigate corruption in parliament. As a side note who checks parliament? Have we the Kenyan public, gotten to a stage where we accept corruption, and money for votes amongst our members of parliament as a given? With parliament on recess the issue of votes for cash is likely to be swept under the proverbial carpet yet again.

March 16, 2012

18:28

On the Health Workers & Nurses Strike

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According to news reports the nurses and health workers strike has been called off following talks between the government, the Union of Kenya Civil Servants and the Health Professional Society. The talks mark an end to the two-week strike by nurses and health workers over poor working conditions and poor pay in the country’s national hospitals.

The strike saw health workers and nurses persist in their strike action despite the government’s announcement/ultimatum that it would sack the 25,000 striking nurses and health works if they failed to return to work as directed by the Minister of Medical Services, Professor Anyang’ Nyongo (I wonder if anyone really through the implications for the country’s health care if 25,000 qualified health workers and nurses were all sacked in one fell swoop). The strike also persisted despite the issuance of suspension notices to about 5,000 nurses, the suspensions that have since been withdrawn. The persistence of the health workers through government threats sends a pretty strong message about the deplorable state of public health care system.

While many Kenyans are probably breathing a sigh of relief that the country’s public health care workers and nurses have began to return to their work stations, my questions and question is, for how long? And is the government, particularly the Ministries of Public Health, Medical Services, Labour and Treasury, committed to finding long-term durable solutions to the issues within health sector both in terms of pay and working conditions? Or are the promises that the government has made to look into the concerns of health care workers a band-aid solution to get health care workers to return to work in the short-term?

After all the latest strike by healthcare workers and nurses is over the government’s failure to honour promises it made to health workers and nurses to improve remuneration and work conditions less than six months ago after their strike over exact the same issues in December last year. Furthermore this is not the first time that the government has made promises to striking civil servants only to fail in following through. A failure that often results in the repeat of the striking civil servants. Look at the case of teachers.

What are your thoughts? Is this the government committed to changing the state of the health sector and improving working conditions and pay for public sector health workers and nurses or should we expect to see more strikes in the future?

March 12, 2012

9:55

Two-Third Gender Rule Where Are We Now?

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The recent celebration of international women’s day seems to be as good a time as any to review how the country is doing on the issue of women’s representation in governance. Also 90 days have lapsed since the first reading of the Constitutional Amendment Bill so the bill and its provisions, including provisions on making the 2/3-gender principle a reality, are soon to return before Parliament.

The constitution promotes the participation of women and men at all levels of governance and makes provisions for proportional representation. It provides for women occupying at least a 1/3 of the seats in County Assemblies as well at least a 1/3 of the seats in the Senate. The constitution also provides for the enactment of legislation to compel Political Parties to be democratic and have women in their decision-making organs. Article 81 (b) of the constitution provides that “not more than two-thirds of the members of elective public bodies shall be of the same gender.” What the constitution does not provide for is the methodology to be used to ensure implementation of Article 81 (b).

Whether these provisions are enough to make people vote for women is the issue. A look at the voting history of Kenyans would suggest that left to chance it is unlikely that the gender representation threshold set in the constitution will be met.

In it’s review on the implementation of the 2/3-gender rule the Cabinet stated the requirement was technically impossible to achieve under the current stipulation. The Commission on Implementation of the Constitution’s (CIC) Advisory on the matter observed, “Unfortunately none of the state organs charged with the responsibility of implementing the constitution has a practical solution to this difficulty. At this point neither the Elections Act nor the Political Parties Act provides an effective mechanism for the implementation of Article 81 (b) of the constitution.”

Initially the cabinet had considered the possibility that all 80 additional seats created by the constitution could be allocated to women according to party lists with the largest party getting the most seats. According to the proposal, Kenyans would still elect men and women of their choice in the 210 existing constituencies. However political parties would submit lists of names to the Registrar of Political Parties before the election. After the election Parliament would look at which House, Parliament or Senate, had not met the two-third rule and the House would then use the nomination list to ensure the gender rule was met.

The constitutionality of the proposal was of course questionable considering that Article 97 (1) (a) of the constitution stipulates, “two hundred and ninety members, each elected by the registered voters of single member constituencies.” Consequently it has been proposed that a viable option would be to import the provision of Article 177 (1) (b) of the constitution i.e. the addition of the “number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender” to Article 97 with the necessary modifications. The effect of this would be that if the required gender ratio were not met through elections, political parties would be required to nominate additional MPs to meet the gender ratio requirement of the constitution.

Article 27 empowers 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.” So the amendment is feasible if two-thirds majority of Parliament agrees to it as per Article 256 of the constitution. The alternative of course would be to adopt a wait and see approach as to whether the 2/3-gender rule will be met through just the election process, but that may land us in a constitutional crisis. The flip side of the amendment is that the amendment on the gender requirements is lumped in with all sorts of other amendments to the constitution. So the choice is between accepting the Constitutional Amendment Bill wholesale to ensure the 2/3 gender rule is met, or rejecting the bill and risk throwing the baby out with the bathwater.

March 09, 2012

14:29

On Parliament’s CBK Governor Flip-Flop

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Over the last few days the report of the Parliamentary Select Committee on the Depreciation of the Shilling has dominated parliamentary debate. In short, the report of the Committee posits a regulatory failure and lax monetary policy on the part of the Central Bank of the Kenya created an environment that allowed those in financial services industry to act in a way that led to last years decline of the shilling to a historic low of Kshs. 107 to the dollar.

As the current Governor of the Central Bank of Kenya and sitting head of the Central Bank at the time of the shilling’s decline, Njuguna Ndungu’s competence and ability to craft effective regulatory policy was called in to question. So bad was the Central Bank of Kenya’s regulatory failure and the ensuing fallout – the 25% decline in the shillings value, the sharp rise in interest rates and inflation, that a Reuters survey of regional analysts labelled Kenya’s Central Bank Governor Africa’s least effective policy maker and the continent’s worst Central Bank Governor.

The Parliamentary Select Committee formed to look into the shilling’s rapid depreciation found “Prof. Ndungu’s conduct and behaviour incompatible with what is expected of the holder of the office of Governor of Central Bank of Kenya.” In the lead up to the tabling of the report of the Parliamentary Select Committee on the Depreciation of the Shilling, and in the period since the tabling of the report, the majority sentiment in parliament seemed to lean towards holding the Governor of the Central Bank of Kenya to account for the regulatory failure after all Governor of the Central Bank is central to crafting regulatory policy.

Speaking on the action, or inaction, of the Governor of the Central Bank during the depreciation of the shilling, MP for Wajir, Aden Keynan, declared that the governor’s behaviour constituted, “an economic crime against the people of Kenya.”

Ntoithia M’Mithiaru, MP Igembe North, who seconded the motion to adopt the report of the committee, stated, “At the centre of activity somebody was watching, somebody was regulating.”

“At the very least, the governor was ineffective,” said Shakeel Shabir, MP Kisumu Town East.

“We’re paying Prof. Ndungu not to engage in politics, we do not pay him to enjoy himself and tell us he cannot do anything, if he cannot this thing, the only thing this House can tell Prof. Njuguna Dung’s is to go home so that we can hire somebody who is competent.” John Mbadi MP Gwasi.

(For a full account of who said what see Searchable Hansards)

It is of course impossible to say what kind of lobbying goes on behind the closed doors parliament however in what seems like the ultimate the flip-flop, in under five days, Parliament has voted to have the name of the governor of the Central Bank of Kenya expunged from the report of the Parliamentary Select Committee on the Depreciation of the Shilling. In a secret ballot 46 out of 83 Members of Parliament voted to the have the Central Bank Governor’s name removed from the report. The implication of course is that the Governor of the Central Bank is effectively absolved of wrongdoing. It also means that recommendations that involve Central Bank Governor e.g. the recommendation made by the committee that a tribunal be set up to probe the not only the governors’ conduct at the time of the decline of the shilling but he’s competence as well, are now redundant.

What are your thoughts on Parliament’s decision to have the Governor of Central Bank of Kenya’s name expunged from the report of the Parliamentary Select Committee on the Depreciation?

March 03, 2012

15:44

One to Watch: CRA’s Revenue Allocation Formula

» ‎ Mzalendo.com

Equitable distribution of national resources has always been a point of contention among Kenya’s regions. Comparison of the country’s different regions shows clear and apparent disparities in the manner in which national resources have been apportioned, particularly during the old dispensation.

The constitution seeks to rectify the unequal distribution of national resources by requiring that counties receive at least 15% of the national budget every financial year i.e. Article 203 (2) “For every financial year, the equitable share of the revenue raised nationally that is allocated to county governments shall be not less than fifteen per cent of all revenue collected by the national government.”

This portion of the national budget (which may be more than 15%) is to be divided equitably amongst the 47 counties taking into account such factors as: the developmental needs of counties, the economic disparities within and among counties and the need to remedy them, and the need for economic optimization of each county etc.

The body charged with ensuring the equitable distribution of the national kitty between the country’s 47 counties is the Commission on Revenue Allocation. The Commission earlier this week released its proposed formula for the allocation of 150 billion shillings (estimated 15% of the national budget) between Kenya’s 47 counties.

According to the Commission’s Chairperson, Micah Cheserem, between 10 and 20 per cent will be allocated to each of the counties according to poverty levels; between 3 and 8 per cent will be allocated according to the region’s size. Between 15 and 20 per cent will be shared equally by the 47 counties while between 50 per cent and 70 per cent will be shared on the basis of the size of the counties population.

So size matters and so does population, the latter especially given that the population determinant may eventually account for between half to two thirds of the total amount to be shared. Since both size and population are major determining factors in the allocation of national resources, its no wonder that the delimitation of new constituencies and wards is so fraught with tension and gerrymandering seems to be the order of the day…however that’s another post.

The Commission’s formula for allocating national revenue, which is ultimately intended to achieve an efficient public sector through fiscal decentralization, has come under fire for being unfair and lacking measures to curb potential excesses, fiscal mismanagement and corruption at county level. After all how can fiscal decentralization achieve public sector efficiency if the process is riddled with corruption? A criticism to which the chair of the Commission has responded, “If you do not vet your leaders and bring in honest governors, then they will steal your money because it is not our work to come in and check it. If you vote in leaders because they slaughter bulls for you and throw parties, where do you think they’ll recover that from?” A succinct narrative of Kenyan electoral politics, and a warning to vote wisely.

What are your thoughts on the Commission’s formula for revenue allocation?

Find the Commission’s criterion for allocation of national revenue between national and county governments here. If you have any submission to make on the formula the Commission will be accepting submissions from the public until the end of the March.

March 02, 2012

9:17

Where is the Policy in our Politics?

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Politics seems to be our national obsession. Elections are both keenly contested, and keenly discussed. And why not? Our country’s politics is both interesting and complex, also the next election is likely to be one the most fiercely fought and most unpredictable political battles yet, so why not? From every walk of life, there are probably several people that could give exhaustive descriptions of candidates character, and personality and give lengthy analysis/prediction of the potential candidates for different positions, their odds at winning, the intricacies of various political alliances, shifting loyalties and interesting titbits of political gossip.

In politics personality matters, so the focus on the type of politics described above is almost intuitive and plays an important part in exposing inconsistencies and hypocrisies in politicians’ character. Ultimately only a few elected representatives are involved in the process of decision making so it is right that the press, and public devote some of their attention to the personalities and character of politicians as revealed by such politics, as the character of politicians undoubtedly affects the country’s governance.

However I wonder whether our concentration on this side of politics i.e. the personality ‘gossipy’ side, is to the detriment of our focus on policy. While many would find it easy to postulate on the intrigues of politics i.e. whose who, whose in, whose out it and generally muck rake, it is much harder to find a person who could articulate any political candidates stance on the policy issues that affects their day to day lives.

For example take inflation the country’s double-digit inflation has significantly raised the cost of the living for all Kenyans. Though there have been reports that inflation is on the decline, there has been little reflection of this in consumer goods. The cost of living is still as high as ever. Yet are we, the public, able to articulate any of the political candidate’s policy stances on reducing inflationary pressure? Are we concerned about whether or not candidates for electoral office have articulated a coherent policy on reduction of the cost of living as part of their campaign process?

In other priority areas i.e. tackling corruption, taxation, education, healthcare, rising income inequality, equitable distribution of resources, ethnic polarization – how many of us can articulate with clarity the policy positions of any of the candidates running for office. When I talk about articulating a candidate’s position on any of these policy priorities, I do not mean vague promises and empty rhetoric that the electorate has heard repeated over and over i.e. ‘I will create jobs’, or “I will bring development” or “I am committed to ending corruption.” What I mean is a road map to deal with these problems or are we comfortable with a state where our politicians are much better known then their policies? Hopefully a shift in focus from ‘politics’ to policy make us vote wiser.

February 27, 2012

11:11

How in touch are MPs with their constituents?

» ‎ Mzalendo.com

Over the past few days I have spent a significant amount of time moderating the comments made by the public on the different Members of Parliament profiles on www.mzalendo.com. The comments made on the profiles of our Members of Parliament continually raise two questions First what is the level of engagement between members of parliament with their constituents, outside of political rallies. Second and how in touch are members of parliament with the needs and priorities of their constituents?

In my opinion both questions go to the heart of the quality of representation that the electorate receive from their elected representatives. Without engagement between members of the parliament and the electorate there can be little knowledge of constituents concerns, and without proper knowledge of the concerns of the constituents there can be no adequate representation.

The comments made by the public on MPs profiles indicate a demonstrable disconnect between members of parliament and the public that they represent. While there are a significant number of positive comments, most of the comments seem symptomatic of a public that has lost trust in their members of parliament.

The most common sources of disgruntlement appear to be misuse, mismanagement, or misappropriation of funds from Constituency Development Fund, lack of basic infrastructural development, lack of adequate state provision of basic services i.e. water, electricity, education etc, lack creation of economic opportunities and in some instance the seeming simultaneous self enrichment of MPs while in office and impoverishment of constituents and constituencies. Several comments highlighted the disconnect between the debates and issues raised by legislators on the floor of parliament and the realities and priorities of their constituents.

Members of Parliament have, seem for the most part, to have lost the respect of the people. Our members of parliament are increasingly seen as having lost touch with the people, this could be a result of spending too much time in Parliament and not enough time talking to constituents. Consequently there seem appears to be an evidence of a distinct disassociation between what out elected representatives say and how their constituents feel. As the election year looms MP appear to rallying around parties, and personalities rather then speaking for the people who have elected them. It seems that for sometime people feel that our members of parliament have not looked, sounded, talked acted like us, and that much of the electorate has been reduced to election tool to be used every five years. If people are to regain confidence in the political system then candidates need to reflect society, the people they seek to represent, unless MPs states to take the temperature of the public, listen and react

Read comments and contribute on your MPs profile here.

Follow issues raised by your MP on the searchable hansards here.

February 23, 2012

15:58

Members of Parliament and Constitutional Implementation

» ‎ Mzalendo.com

One of Kenya’s and the coalition government’s greatest achievements has been the promulgation of the constitution. However recent events surrounding the constitution’s implementation call into question not only whether the political will to implement the constitution actually exists; but also whether we can depend on the members of the National Assembly to implement the provisions of the constitution within the time lines provided therein.

The new constitution curtailed to a certain extent the powers of the executive while simultaneously increasing the powers of the legislature. In the process of the welcome transfer of power from the executive to legislature the constitution created obligations on Parliament to pass legislation to actualise provisions in the constitution within specified periods of time. In effect the constitution tells Parliament what do, and when to do it, but is parliament meeting its constitutional obligations?

Yes there are several bodies charged with different roles in the implementation of the constitution however, constitutional implementation is very highly reliant on action by Members of Parliament. There are more than 50 instances in which the constitution requires Parliament to enact legislation to actualise the constitutions’ provisions. Statements such us “Parliament shall, by legislation” or an “Act of Parliament shall” abound. The implication being that without the requisite action on the part of the National Assembly the constitution remains little more than legislative rhetoric.
This is why Parliament’s recent action/inaction, seemly continuous infighting and the ensuing effect on the National Assembly’s ability to follow through on their constitutional obligations is worrying:

o The formation of the Ethics and Anti Corruption Commission (EACC) now is long overdue. The commission was supposed to be formed one year after promulgation of the constitution. However the establishment of the corruption watchdog is still incomplete. Furthermore parliamentarians seem no closer to reaching an agreement on the nominees with a section of the MPs threatening to block parliamentary approval of the EACC nominees.
o A section MPs has vowed to block the recommendations of the Independent Electoral and Boundaries Commission (IEBC) Report on the delimitation of boundaries and substitute these with their own recommendations, no doubt protracted wrangling will ensue.
o The passage of legislation on devolution and land reform is still pending. The constitutional deadline for enactment of the legislation comes up on the 27th February 2012, less than 5 days.

However it seems parliament will be unable to meet the constitutional deadline for the passing the required laws. This week the Constitutional Implementation Oversight Committee (CIOC), the parliamentary body charged with overseeing the implementation of the constitution, filed a motion to have the deadline for passage of the bills extended by three months.

This is not the first time in which parliament has missed constitutional deadlines. Nor is it the first time in which there is a chance that legislation maybe hastily passed without requisite scrutiny in order to meet constitutional deadlines. It is also not the first time in which wrangles between parliamentarians have delayed or threatened to delay creation of necessary institutions or enactment of crucial legislation to actualise the provisions of the constitution.

Is Parliament responding adequately to its obligations under the constitution? Or given the way in which our parliament works and the tight timelines for enactment of legislation under the constitution, is it too much to expect the National Assembly to fulfil its mandate and pass all the required laws within the given time frames?

February 20, 2012

9:04

Vetting for Elective Positions, a Viable Option?

» ‎ Mzalendo.com

For most high responsibility jobs prospective candidates go through a series of intensive vetting, and production of reference processes to ensure their suitability for the responsibility that comes with the position. Why don’t candidates for elective positions under go similarly exhaustive vetting processes? After all elective positions in government are some of the highest responsibility jobs in the country. Yet apart from the voting process do we really have systems of vetting the people who ran for elective offices i.e. Member of Parliament, senator, governor, county assembly?

An article in the Business Daily last week proposed that in addition to meeting Chapter 6 leadership and integrity requirements, potential candidates for elective office be required to produce paper work to show their suitability to run for elective office. The list of documents that the article proposed that elective aspirants produce include:

• Tax Compliance Certificate from the Kenya Revenue

• Authority to ensure prospective aspirants are fully tax compliant

• Certificate from the Ethics and Anti-Corruption Commission as proof that the candidate is corruption free and has not been involved in any corruption or fraud scandals.

• Certificate of Good Conduct as evidence of no criminal past or ongoing criminal investigations

• A clearance letter from the Chief Registrar of the Judiciary indicating whether the candidate has any ongoing civil or criminal proceedings levelled against them

• A clearance letter from the Credit Reference Bureau Africa Bureau

• Clearance certificate from the Higher Education Loans Board

• Clearance from the Kenya Counselling Association as evidence of sound mental health

• A Joint Certificate from the Commission of the Administrative Justice, Kenya National Commission on Human Rights and the National Commission of Gender Equality indicating the aspirants’ public and human rights record.

Is it too much to ask that aspirants produce this sort of paper work to prove their suitability to ran for elective positions, in my opinion no. Requiring candidates to produce the paper work proposed by the article does not necessarily ensure that the public would always elect the right person for the job. However asking aspirants for elective positions to produce such paper work would mean that elected candidates would at least meet a minimum standard of propriety i.e. that the elected individual was in good standing in the community general and with the public regulatory authorities. And this sense of propriety would hopefully filter into the way in which the elected candidate fulfils the responsibility of their position. Plus there would certainly be less skeletons jumping out of the closets of our elected officials detracting and distracting from issues of state.

Would you support such vetting of potential MPs?

February 16, 2012

14:21

Delimitation of Boundaries, Participate

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After 21 days of country wide public forums which ended on 30th January the Independent Electoral and Boundaries Commission last week submitted it’s preliminary report on the proposed boundaries for constituencies and wards the to the Parliamentary Committee on Justice and Legal Affairs. The Parliamentary Committee Select Committee on Legal and Constitutional Affairs will now analyse the report, and within 14 days of its submission present it for debate before parliament. In the meantime the parliamentary committee will be receiving written submissions from members of the public on the report.

Different MPs have already criticised the report for the either: being too close in content to the Interim Independent Boundaries Review Commission Report, or for favouring certain regions by concentrating new constituencies in those regions, or for not properly following the constitutional provisions on population quotas. Malava MP and Housing Minister, Soita Shitanda, has already declared his intention to mobilize MPs to amend the report so that the role of the commission would be only to gazette it.

Public participation is important because the delimitation of boundaries ultimately determines representation. The way in which boundaries between constituencies and wards are drawn contributes to determining the outcome of electoral processes, and decisions to redraw boundaries can substantially change the outcome of these processes.

The awareness of the importance of the drawing and redrawing boundaries in determining the outcome of the electoral process is what makes the delimitation process so susceptible to manipulation by politicians attempting to influence the way in which the boundaries are drawn in order to favour their electoral prospects. So it’s no wonder that the content of the Independent Election Boundaries Commission preliminary report is already breeding contention among members of the national assembly.

If we are not vigilant about the delimitation of the boundaries the process stands to be manipulated both spatially (through the inclusion or exclusion of certain groups within the certain constituency boundaries) and quantitatively (where boundaries are fixed in such a way that a relatively small select pocket of voters is grouped into one constituency and therefore gets it’s own representative).

Unfortunately the current parliamentarians are the ones most likely to engage in such manipulation, since it is they that have the authority and power to amend the report. If the boundaries are manipulated we may end up with a situation where the politicians are the ones choosing their voters instead the voters choosing their politicians. Read the IEBC preliminary report on the delimitation of constituency and wards here – www.iiec.or.ke/index.php/preliminary-report/397-9th-febraury-2012.html and track what parliamentarians are saying about the report in with the searchable hansards.

February 10, 2012

20:24

Notes from a Launch: On Polarizing Ethnic Language

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A topic less tweeted about but candidly spoken on at the launch of Mzalendo 3.0 is the rise in the use of polarizing ethnic language by politicians in their electioneering, and by citizens in their day-to-day conversations. The use polarising language has so escalated in the period following the International Criminal Court indictments that this month’s Nairobi Law Monthly posits that, “tribal talk is back and hate speech is becoming the political lingua franca again.” A statement in which there is a lot of truth if remarks made by Mutito MP, Kiema Kilonzo, on the ownership of Kenya are anything to go by.

Lately, or maybe it has always been the case and has just become more obvious, there seems to be a flagrant disregard for the provisions of the National Cohesion and Integration Act, and an abuse of the limitations to freedom of expression set out in the constitution. Freedom of expression does not extend to “hate speech; advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or that is based on any ground of discrimination.”

Equally worrying is that the lack of political will to tackle the increasing use of ethnically charged language is rendering laws and organs that are supposed to deal with the use of incendiary ethnic rhetoric completely ineffective. So far, no politician has come out and directly condemned polarizing utterances made by their peers. And though National Cohesion and Integration Commission recently recognised the increase in incidences of hate speech and affirmed its commitment to fighting it, the Commission also added the caveat/disclaimer that proving hate speech is becoming increasingly difficult. Making one wonder whether the Commission has the ability to effectively deal with the issue.

Considering we are headed into what could be an election year the increasing use of the incendiary language by both politicians and the public makes me wonder if we as a nation learned anything from 2007 election and the ensuing violence the fallout of which many still experience today.
Polarizing language alone did not cause the 2007/2008 post election violence but the continual stoking of ethnic tensions, and the use of incendiary ethnic rhetoric definitely played a role. So why are we allowing it to happen again?

Polarising ethnic language reduces us to a singular overarching identity, tribe. Polarising ethnic language undermines national unity; it can very rapidly turn into a vicious cycle of discrimination and violence. As Kenyans we have a collective interest in ensuring the country is united we must send a clear STOP message to politicians encouraging ethnic polarization through the use of the incendiary rhetoric: it’s wrong, it’s illegal.

February 09, 2012

21:02

Notes from the Mzalendo Launch: On Apathy

» ‎ Mzalendo.com

In the course of the speeches at the launch of Mzalendo 3.0 yesterday apathy emerged as a major challenge to the country’s democracy and progress. In fact the topic of political apathy came up in every speakers talk almost as frequently as its sister topic, public participation. One of the most poignant quotes of the morning, for me at least, was that “the cost of apathy is to be ruled by evil men.” Translation, apathy is expensive, down right unaffordable, unless we find the premise of being ruled by evil men an acceptable one.

Are we as Kenyans politically apathetic, business as usual, seemingly content and happy even in the face of flagrant violations of our democratic and human rights? When we see something that is blatantly wrong do we do something about it? Or do we turn in the opposite direction or worse bury our head in the sand muttering “kazi iendelee” or “that’s the way things are” or “this is Kenya get used to it,” and get on with it. Is the widespread apathy a result of feeling alienated and excluded from the country’s political and economic structures or is it a result of lack of adequate information to participate effectively in governance issues?

In way it doesn’t really matter which road to apathy we take through inaction we contribute, or acquiesce through our silence to the institutions, leaders, rules, and processes that define our country today. John Githongo during his talk pointed out that through our collective apathy crucial opportunities to substantially change Kenya’s political reality have been missed – first in the referendum of 2005, and then in the period following the 2007/2008 post-election violence.

He did point out however that where as the old dispensation furthered the alienation and exclusion of the citizenry from political and economic power structures, the new constitution provides for extensive participation by citizens in all aspects of governance and places a positive duty on the people to participate in the country’s reform processes. But how many of us can honestly say we are taking advantage of the constitutional right to actively participate in the country’s governance? How many can say they have participated in the budget processes, or contributed to the Independent Electoral Boundaries Commission public hearings on the delimitation of the constituencies, or in the Truth Justice and Reconciliation Commission hearings?

When a similar question was asked at the launch less the 20% of the participants raised their hands. When asked how many watched the processes on the television that number went up substantially. While watching the public hearings on television may be a start to public participation it is hardly enough? While we complain about the state of the country our leaders and their antics it is incumbent on us to do something about it. After all reform is an active process rather a passive one.

What are your thoughts on political apathy in Kenya?

February 06, 2012

9:42

On the Court Order and Freedom of Expression & the Media

» ‎ Mzalendo.com

On Thursday the courts issued an order barring public discussion on the suitability of the Deputy Prime Minister, Uhuru Kenyatta and MP William Ruto as presidential candidates. All persons and authorities are barred from discussing the matter in public until the case, brought by Kenya Youth League and Kenya Youth Parliament seeking orders to stop Uhuru Kenyatta and William Ruto from vying for presidency after their indictment by ICC, is heard and determined.

“In view of the fact that this court is now seized of the question whether Uhuru and Ruto are qualified or not to run for presidency, the court is now in sub judice and all persons and authorities are enjoined and should not discuss the matter in public, failure to which appropriate sanction will be taken,” stated Justice Lenaola in his ruling.

Orders barring speaking about the cases before the court, lest the court be prejudiced, are not an unusual. However in this instance the order barring public discussion on the candidature of Uhuru Kenyatta and William Ruto is unusual, because both are public figures holding either public or elected office, both have expressed their intention to run for president in the period following the ICC indictment, and both are in the process of holding country wide prayer-cum-campaign rallies, these elements make their candidature both a matter of public interest, and certainly public discussion.

One wonders how the prohibition of public discussion on whether Uhuru Kenyatta and William Ruto are qualified to run for presidency post-ICC indictment fits in with the freedom of expression and freedom media provisions in the Bill of Rights of the constitution. Article 34 (2) particularly provides that the State, of which the judiciary is a part, “shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or penalize any person for any opinion or view or the content of any broadcast, publication or dissemination.”

There are also issues of enforceability how exactly is the court planning to enforce the bar? Or does the order only serve to prevent the press from covering on the ongoing public debate on the two’s candidature or is it targeted towards particularly outspoken persons and authorities, that have been particularly outspoken about the suitability of Uhuru Kenyatta and William Ruto as presidential candidates following their indictment.

The only way in which the order makes sense would be if the two, Uhuru Kenyatta and William Ruto, did not posit themselves to the public as presidential candidates, then the public would have no cause to debate or discuss the suitability of their candidature. However with the two having countrywide rallies to popularize their candidature, how can the public help but discuss their suitability of their presidential candidature?

February 03, 2012

16:14

My Media Roundtable: Media and Political Violence

» ‎ Mzalendo.com

Kenya, we are not only a political country where everyone from the mama mboga on the street to the CEO is actively engaged in discussions on politics. We are also voracious consumers of news media, its not unusual to see a group of people huddled round a radio, or over a newspaper listening to or reading the news while simultaneously debating eruditely salient points of politics.

To different extents we all rely on some form of media for information on what is going on in our country, with our parliamentarians and other leaders. Through its actions i.e. what and how it airs a story or what goes to press, the media paints a picture of the Kenya in which we live and many times has the capacity to influence our perceptions of political events, and impact our political decisions.

However despite the effect of the media on our collective political conscientiousness there are limited avenues for the public to engage with the media fraternity. And this is what makes the media roundtable such an interesting space. The media roundtable is a public forum, hosted by Media Focus on Africa, every last Tuesday of the month where the public engage with members of media to discuss the role of the media on various issues. The topic of the roundtable held this Tuesday was Media and Political Violence. The question central to the discussion was the extent to which the media contributed to the 2007/2008 post election violence and what be done to the improve reporting in the coming election? Several issues came up:

Does the media’s focus on politics, and the way it reports on politics serve to heighten the tensions that surround political issues and political leadership?
Has the media’s reporting on political events changed since the 2007/2008?
Is the media overly focussed on politics to the detriment of stories on development?
Is the media is overly focussed on issues of ethnicity in its reporting?
The effect media ownership and vested interests and resultant bias in political reporting, and its role in heightening tension
Should the media focus less on the voices of politicians and more on the voice of the everyday wananchi?

In making the point that there is need for the media to focus more on the voices of ordinary Kenyans as opposed to politicians one participant remarked that media reporting had served to make an election about the collective lives of 40 million+ Kenyans a narrative of 4 political personalities.

While the country’s media is far from perfect; and there is no doubt that media, particularly vernacular stations, played part in stoking tensions that lead to the 2007/2008-post election violence. The extent to which the media contributed to political polarization and the ensuing post election violence in 2007/2008 is difficult to determine. Media reporting aside, Kenyan politics has been and polarised for a very long time, various political players have encouraged and used this polarization to their political advantage.

The media has played a crucial part in the reforms since 2008 and continues to play an important role in uncovering the reality to political events and developments that would otherwise be obscured. Making a decision on what news to report and how to report it is remains a matter of balancing the tension between reporting the reality of political events as they unfold and the possible unintended consequences that such political reporting may have in sensitive times i.e. in encouraging polarization, exacerbating tension or escalating violence. For all its faults the Kenyan media remains a critical reflection of our society and its politics and the usefulness of the media in providing crucial insight in the political dynamics cannot be discounted.

How would you rate the media’s political coverage?

January 28, 2012

9:48

On the Partial Stepping Aside

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Following their indictment by the International Criminal Court for crimes against humanity both the Head of the Public Service, Francis Muthaura, and the Deputy Prime Minister/Finance Minister Uhuru Kenyatta resigned from office, or is it stepped aside? A statement from the Presidential Press Office reads:

“His Excellency the President has accepted the decision by Hon. Uhuru Kenyatta, EGH, M.P, to step aside as the Minister for Finance. However, Hon. Kenyatta will retain the position of Deputy Prime Minister in accordance with the Constitution.”

While the resignation of Uhuru Kenyatta from the position of Finance Minister is welcome, the logic of resigning from the post of Finance Minister but not from the post of Deputy Prime Minister eludes me.

Read together neither the Constitution and nor the National Accord and Reconciliation Act precludes the Deputy Prime Minister from resigning, I mean stepping aside, from this position following his indictment by the ICC, in fact some would say the law requires that it.

Yes, Section 12 of the Sixth Schedule of the constitution on Transitional and Consequential Provisions states that “The persons occupying the offices of…Deputy Prime Minister …immediately before the effective date shall continue to serve in accordance with the former Constitution until the first general elections held under this Constitution unless they vacate or are removed from office in accordance with the former Constitution and the National Accord and Reconciliation Act, 2008.”

However according to the National Accord and Reconciliation Act Article 4 (a) the office of the Deputy Prime Minister can become vacant “if the holder of office…resigns…” Further the President and Prime Minister are obligated to “ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post election violence shall be suspended from duty until the matter is fully adjudicated upon.” There is nothing to indicate that the holder of the position of Deputy Prime Minister is exempted from this provision.

Is it logical/legal that Uhuru Kenyatta stepped aside from the position of Finance Minister but still retains the position of Deputy Prime Minster, your thoughts?

8:44

When Leaders Take Positions that Support Impunity

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Before their resignation from office the Deputy Prime Minister/Minister of Finance, Uhuru Kenyatta, and the Head of Public Service, Francis Muthaura received support from MPs and quarters of the public service for the position that despite the fact that both had been indicted for crimes against humanity (murder, deportation and forcible transfer, persecution, rape and other forms of sexual) both could still stay in office.

The Attorney General, Githu Muigai, effectively stated that the two would not be required to vacate office until the appeals process was exhausted declaring, “Our understanding is that the confirmations have been made against the four and the four are going to appeal. We cannot make a precipitate decision. We cannot determine any issue until the four citizens have exhausted their right of appeal”.

The Law Society of Kenya Chairman, Ken Akide, was quoted as having stated that calls for resignation of the Deputy Prime Minister and the Head of Public Service were not founded on the letter of the law saying that, “On a strict application, they can’t leave office as they are not accused under the Anti-Corruption and Economic Crimes Act which would require them to vacate office.” This of course begs the question what about under the strict application of the National Accord Reconciliation Act?

Several MPs (Amina Abdalla (nominated), Sam Ongeri (Nyaribari Masaba), Cecily Mbarire (Runyenjes), Naomi Shaban (Taveta), Esther Murugi (Nyeri Town, Mwangi Kiunjuri (Laikipia East), Lina Jebi Kilimo (Marakwet East), Ferdinand Waititu (Embakasi), David Were (Matungu), Elizabeth Ongoro (Masha), have held press conferences or spoken publicly against the ICC indictments and those calling for the Deputy Prime Minister and the Head of Public Service to resign from office. MP Nemesyus Warungongo (Kieni) even threatened to go on hunger strike.

It is one thing to offer support to someone; it is everyone’s right pick a side, to choose. However it is quite another thing for leaders to offer the kind of support that encourages impunity, subverts justice and thwarts change.

Its hard to determine why the Attorney General (the chief advisor to the government), some members of the legislative assembly and the legal profession would ignore one of the provisions on which peace post the 2007/2008 violence was founded i.e. National Accord and Reconciliation Act. Specifically Article 4 which calls for the President and Prime Minister to “ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post election violence shall be suspended from duty until the matter is fully adjudicated upon.”

That some of our leaders chose to ignore this provision shows that the propensity for impunity still exists. However in the new dispensation the rule of law and accountability, integrity, equal application of the law (principles, and national values outlined in the constitution) must prevail regardless of status or personal leanings that one may have.

Your thoughts?

December 22, 2011

14:57

Harambees and Elections

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Talking about the “harambee ban” on political aspirants Isaack Hassan, the Chairperson of the Independent Electoral Boundaries Commission (IEBC), recently stated, “politicians and aspirants for political posts have always used fund-drives and harambees to entice voters and to influence their manner of voting.”

Have you ever wondered how much of a political aspirants campaign budget is allocated to fund raisers and harambees? And how this affects the county’s elections and their outcomes? Harambees to raise funds for personal and public projects such as school fees, rehabilitating hospitals or building schools are a common occurrence. And while harambees started out from a well-intentioned place for well-intentioned causes, over the years harambees and fund-raisers have morphed into a powerful political tool.

The influence that harambee contributions by political aspirants have on the outcome of elections cannot be underestimated. Though it doesn’t always work there is almost a tacit agreement that the more money a political aspirant gives to both personal and public harambee projects the more political influence they gain, and the more chance they have of influencing the vote. So though the act of contributing to harambees by political aspirants may not qualify as outright vote buying it definitely falls somewhere along vote buying continuum. The practice undermines the electoral process, and leads to the prioritisation the aspirants the wealth over their vision and leadership.

Citing Article 26 (1) of the Elections Act the Chairperson of the IEBC, Isaack Hassan, put those running for elected positions in the upcoming 2012 election on notice about their responsibility to stop the practice of using harambees and fund-raisers to amass political influence.

Article 26 of the Act prohibits political candidates from directly or indirectly participating in any manner in any public fund raising or harambee within the 8 months preceding a general election or during an election period. The section also states that any political aspirant doing so shall be disqualified from contesting in the election or during that election year or election period. Given the election date still stands at 14th August 2012 and barring any changes the 8-month “harambee ban” began on 14th December.

No doubt there will be enforcement issues however the Chairperson of the IEBC has indicated that video recording can be used as evidence to disqualify a candidate if they act in contravention on the law. The IEBC is also in the process of setting up an Electoral Code on Conduct and a committee to ensure it is enforced.

The “harambee ban” is definitely a welcome move in the electoral reform process but is it enough to stop the practice, your thoughts?

December 21, 2011

9:37

On the Electoral Opinion Bill

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Is the Electoral Opinion Bill overkill or much needed? Though no one can argue about the need for polls to be conducted in a scientific and transparent manner, I’d be inclined to argue that bill is overkill. The bill sponsored by Ikolomani MP, Bonny Khalwale, creates a myriad of obligations for both pollsters and media groups that publish or broadcast the results of the electoral opinion polls.

o It prohibits the publication of the results of electoral opinion polls 48 hours before the date of the election.

o It obligates those who broadcast electoral opinion polls to provide information on who sponsored the poll, the name of the person/organisation that conducted the poll, the polling period, the methodology of the survey, the size of the population polled, the pool from which was the polled population was drawn, the education of level of those polled, and the margin of error in respect of the data.

o The Bill creates additional obligations for those that publish electoral opinion polls requiring them to provide the above information, plus – the wording of the poll questions, sampling methods, dates and times of interviews, weighting factors, methods used to recalculate data to take in to account participants who were undecided or expressed no opinion etc.

o The bill imposes a fine of up to 500,000 shillings or a prison sentence not exceeding one year for any contraventions of its provisions.

The bill applies to all electoral opinions polls conducted in an election period i.e. “any period of 12 immediately preceding an election.” This definition is less problematic than that definition given of an “electoral opinion poll” i.e. “a survey of the public opinion or a sample of the public opinion to assess the views of the electorate on various matters relating to an election, political candidates or political issues.” This definition is so broad that it is difficult to figure out what falls or what doesn’t fall under it. Do mini-surveys conducted at issue at the end of TV newscasts count, what about those mini-surveys conducted by newspapers on a political issues, or surveys on political blogs?

According to its memorandum of objects and reasons the Electoral Opinion Bill was “born out of a reality that the publication of results of electoral opinion polls influences Kenyans to vote one way or another,” and as a consequences “there is need for a law to ensure that such electoral opinion polls are conducted in a scientific and transparent manner and all the relevant information is disclosed to the public.”

What is your opinion on the Electoral Opinion Bill? Does the country need it? Do electoral opinion polls affect the way that you vote? Of all the factors that influence Kenyans electoral choices where do electoral opinion polls fall on scale?

December 14, 2011

15:11

Mzalendo Vox Pop: A doctor’s perspective on the strike / linda afya

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Below is a guest post by Dr. Peter Mburu. What are your thoughts? Let us know via the comments or email your response to info-at-mzalendo.com blog

I just got home from a long day at a privately owned and run hospital in Nairobi where I am a doctor. I am sitting watching the news of the doctors’ strike for the umpteenth time, images of young people in white coats walking peacefully, displaying placards and chanting – they are my colleagues in the public sector. In the background, the voice of the reporter repeating how the doctors want a 300% pay rise over and over. That mesmerizing figure – 300%.

I try to imagine being an ordinary Kenyan, listening to this and wonder what I would think of the action by doctors to abandon their posts leaving desperately ill patients in hospital wards across the country just because they want to make more money. I am a little crestfallen but I remember that that is not all the striking doctors are asking for.

I think of the 13-point petition submitted to the Ministries of Medical Services and Finance, the offices of the President and Prime Minister and even Parliament. Only 2 points mention remuneration of healthcare workers (not just doctors but Pharmacists, Dentists and Clinical Officers are also included). No mention of the other 11 items on the petition submitted to the government as reason for this strike action seems to reach the ears and eyes of the watching public. I think of all the things I have been reading on social media. People, mostly young middle-class professionals, asking why doctors think they deserve all that money. The money thing again! How we are creating a culture of wage-beggars and unnecessary industrial actions. Don’t other professionals work just as hard, if not harder serving the public? And aren’t government employees generally poorly paid? What makes them so special?

What makes us special? Well, over generations, yes generations, healthcare workers have worked and continue to work in atrocious conditions without complaint and largely, without regard to our own safety. We have worked unacceptably long hours for years due to understaffing! We do not have a decent medical plan being exposed to all manner of risks. We have suffered through everything from poorly stocked drug stores, constantly broken down operating room and laboratory equipment, lack of basic amenities like gloves to poorly maintained hospitals and everything in between. It is demoralizing when you cannot offer the best available care to those who deserve it. It is worse when you cannot offer medical care to your own loved ones when they need it!

It’s outrageous when the public, majority of who cannot afford insurance or to go to private doctors or institutions like the one I work in, suffer needlessly due to cuts in healthcare funding each passing year. They don’t get the benefit of having complete work-ups and/or appropriate treatments. It’s unacceptable to send a patient’s relative outside the hospital to buy basic medications that should be available in hospital. They don’t have the benefit of basic and prompt surgical care. They do not have the benefits of care from well-trained specialists, most of who flock the major cities or go abroad seeking better opportunities. They don’t have the benefit of health education because there aren’t enough healthcare workers to go around. The tax-paying population deserves all that.

In the past, the government had a program to train post-graduates in the two public teaching hospitals but over the years there has been a steady decline in the funding for this program. In the last few years, there has even been a hushed rumour of memos circulating with talk of shutting down the program completely – for post-graduate doctors to continue to fund their own education by working in these hospitals without pay and somehow also fend for families. Never mind that the old program had numerous flaws like mandatory bonding to public service for years for poor pay, pre-requisites of X number of years served in public hospitals before enrolment and hindrances in registration as specialists once one has completed training.

Through all this, the system has still managed to churn out reasonably well-qualified, professional individuals –mostly because they have to adapt to those horrid conditions and improvise as best as they can. The varied improvisational skills have made for good ‘war stories’ whenever two or three doctors have gathered, we all beam at our triumphs despite the challenges. We reminisce good outcomes. We speak sadly of the ones who didn’t make it despite our best efforts. Many have gone beyond the call of duty and continued to uphold the Hippocratic Oath; the same oath now thrown in our faces as some sort of guilt-trip by the media, politicians and even some of the public we have long suffered for. Many have questioned the morality and ethicality of this strike. We have been scorned and told off for “taking too quickly to the streets”. No one mentions the past year when every effort to engage the government has borne nothing. No one mentions the apathy that the middle-class and the rich, who can afford insurance, hold towards their fellow Kenyans who can’t and who are the most affected by the ailing system. No one mentions that while this strike action is on-going, doctors have also been raising funds for one of us who is admitted at the National Hospital but cannot afford in-patient care.

No one thinks it was enough that we had years of quarrelling and discussions amongst ourselves about what should be different. But we have generations, yes generations, of firsthand experience and knowledge of what is wrong with the system and what needs to be done to fix it. And the time has come for that change.

8:34

Scrap the Senate?

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In the time since the constitution was promulgated, just over a year ago, there have been three suggested constitutional amendments: the most well known the Cabinet proposed amendment to change the date of the election from the second week in August to a date in December. There has also been the proposition to amend the constitution to ensure that the 2/3-gender principle is achieved with regard to elected positions in the 2012 election. Most recently Ndaragwa MP, Jeremiah Kioni, has made a proposition to amend the constitution to remove the senate.

The reasons put forward for scraping the senate are: the expense, basically the Senate would cost too much further burdening the tax payer who will be footing the bill for the national assembly, the senate, the county assemblies, and the numerous additional seats created by the constitution. The MP also has also questioned the value that the Senate will add governance-wise stating that having Senate will only serve to duplicate roles that are already to be performed by either the national or county governments.

At face value the arguments for scrapping the Senate seem almost palatable, particularly the argument on the additional tax burden to be placed on the citizenry. However when the functions that Senate will perform in a devolved government and the checks and balances that the Senate provides with regard to relations between the national and county assemblies are scrutinised the proposition to scrap the organ seems untenable.

The Senate was created to protect the interests of counties and to participate in the law-making function of Parliament as it concerns the counties. The Senate is also charged with determining the allocation of national revenue among counties as well as exercising oversight over national revenue allocated to the county governments. Finally the senate is expected to participate in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President.

There is nothing to say to that these roles cannot be transferred to either the national or the county governments making the need for a Senate obsolete. However can we always rely on Parliament to act in the best interest of the counties even if its own interests are threatened? Would the county assemblies to provide oversight over budgetary allocation made to them? Who would determine the budgetary allocation to the counties – the county governments or the national government?

Based on the Senate’s role as described in the constitution removing the organ would only result in more questions about how the national and county governments would relate. Yes, the Senate could be scrapped but a whole lot of conflicts and situations of conflict of interest would arise, so before we go about amending the constitution, why not make more of an effort implementing it?

Your thoughts?

December 09, 2011

13:43

On the Doctors’ Strike

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If health care workers per capita, the quality of public hospitals, government spending on health care, the availability and affordability of health care, and doctors salaries are indicators of a nations health then we should be very worried about Kenya’s health.

Seriously worried, we live in country where we have the highest paid members of parliament, in the world, yet some of the lowest paid medical personnel. According to the an article in the Washington Post, yes the ongoing doctors’ strike is making international news, the starting wage for doctors in Kenya is approximately 36,000 shillings per month while a member of parliament’s salary is about 440,000 shillings per month excluding allowances. The contrast in the salaries of MPs and doctors is particularly startling when you think about it terms of output, or value for taxpayers’ money. Who gives more value for tax shillings doctors or MPs?

All you have to do is walk into a public hospital or talk to a doctor working in a public health care institution to realise that the doctor’s strike is probably way overdue. The Kenya Medical Practioners Pharmacists and Dentists Union has been in talking to the government for a year about overhauling the public health care system to no avail. The next logical step, industrial action, the doctors are demanding a 300% pay rise (reasonable when you take in account how little they are paid) and higher budgetary allocation for the health care sector (reasonable when you take into account the state of the public health care system).

In response to the strike the government has offered to increase the doctors’ extraneous allowances, not salaries but allowances, by Kshs 30,000 per month. The government proposed that the increment be implemented 3 phases starting in the January next year and ending in 2013/2014. The offer is ludicrous considering that tax will probably takes up around 30% of their salary, and inflation another 20%, add to that other taxes e.g VAT, rising interest rates on loans, the depreciating value of the shilling, the rising cost of living and its no surprise that the doctors rejected the government.

Taking a hard line stance, citing section 230 (4) of the constitution, the Assistant Minister for Medical Services Kambi Kazungu has told parliament that government is unable to raise the doctors’ salaries. The reason, raising the doctors salaries is outside the mandate of parliament, he argued that the constitution requires that salaries of state officers be set by the yet to be established Salaries Remuneration Commission.

However according to the wording of the Article 230 (4) (b) the role of the Salaries and Remuneration Commission with regard to the salaries of the public officers is an advisory one. The Article states that the role of the Commission is to “advise the national and county governments on the remuneration and benefits of all other public officers.” So contrary to the statement made by the Assistant Minister for Medical Services to parliament the constitution does not stop the government from raising the doctor’s salaries. It’s surprising how members of the government are willing to the rely on the constitution as a tool to abrogate their duties i.e. negotiate doctors salaries and are unwilling to following the provisions when it imposes obligations i.e. the requirement for all state officers to pay taxes…

The argument that there is no money in the public coffers to pay doctors is disingenuous, there’s been money for Operation Linda Nchi, there’s been money for the almost 1 billion shilling refurbishment of parliament. It’s a matter of priorities and right now the governments priorities seem to lean away from the improving the lot of the public health care systems those who work in it, but that could be because a bulk of them can afford private health care.

December 07, 2011

15:34

Mzalendo Vox Pop: Anon from Kitutu Chache

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December 06, 2011

10:54

Grassroots and By-Elections a Sign of Things to Come

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December 03, 2011

13:33

Whatever happened to Separation of Powers and Judicial Independence

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The principle of separation of powers differentiates between the powers held and exercised by the legislature, the judiciary and the executive. The principle of separation of powers contains an element of independence of the three separate arms of government i.e. none can assume the competence or functions the other or interfere with another’s powers to the extent that power is rightly exercised.

This separation means that the judiciary should be able to work without interference from the executive or the legislature, and that judges should be able to judge cases independently, impartially and in accordance with the law. A judge should not be an instrument of politics, and a judge should not be political worker who executes decisions of the executive. A judge is subject only to the law, and the law should not be used to influence verdicts as the law is intended to be general and neutral. The Executive’s interference in the judicial ruling ordering the issuance of a warrant of arrest against Sudan’s President Omar al Bashir threatens to undermine both the principal of separation of powers and independence of the judiciary.

Earlier in the week High Court Justice Nicholas Ombija issued a warrant of arrest against the President of the Sudan Omar al Bashir stating “The order should be effected by the Attorney General and the Minister for Internal Security should he [the President of Sudan] ever set foot in Kenya.” The warrant was issued in response to an application filed by the International Commission for Jurists Kenya Chapter following President Omar al Bashir’s controversial visit to Kenya during the promulgation of the constitution on the August 27 last year. According to the Rome Statute and other international laws to which Kenya is signatory, Kenya was obligated to enforce or at least attempt to enforce the warrant of arrest issued by the International Criminal Court (ICC) against President Omar al Bashir.

The ruling was a bold one given Kenya’s cases at the ICC and the potential political, and diplomatic backlash. The ruling however showed an adherence to the law, independence of the judiciary and an end to the days when political and diplomatic expediency overrode the operation of the law.

The response to the ruling from both the Government of Kenya and the Sudanese Government has been swift. The Government of Sudan gave Kenya’s envoy to Sudan 72 hours to leave the country and recalled its ambassador to Kenya for consultations. Meanwhile in Kenya the Ministry of Foreign Affairs has gone into damage control mode. Dismissing the court order the Minister of the Foreign Affairs recently declared “We don’t support the ruling because you cannot arrest a sitting President of a neighbouring country regardless of the circumstances, it is an insensitive ruling.” The Minister has also said that the Ministry will appeal will appeal the court’s ruling.

However one wonders why the Ministry of Foreign Affairs would be the institution to appeal High Court’s ruling, couldn’t the Government of Sudan lodge an appeal through its Embassy here? And further what message is the Ministry of Foreign Affairs sending to the Judiciary with regard to making rulings that are neither politically or diplomatic expedient? The argument has also been made by the Ministry that the African Union (AU) and IGAD’s positions and resolutions on the ICC should be taken into account and cannot be ignored, however the counter argument is that a binding treaty whether international, regional, or continental takes precedence over a non-binding resolution or position.

Your thoughts?

November 29, 2011

10:32

Constitution Implementation Turf Wars

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In a perfect Kenya all government organs involved in the implementation of the constitution would work together in congress to make the provisions of the constitution a reality. However this is not a perfect Kenya and relations between the Office of the Attorney General and the Commission for the Implementation of the Constitution (CIC), two offices crucial to the timely implementation of the constitution, seem far from cordial.

During a special meeting chaired by House Speaker Kenneth Marende on the implementation of the Constitution the Attorney General, Professor Githu Muigai, called out the CIC for overstepping its mandate. Speaking on the request by the CIC seeking that the Commission scrutinize and approve all private members bills touching on the constitution before they are tabled in parliament. The Attorney General stated,

“I refuse to believe that your work is to supervise organs of government…you have neither the resources nor the technical expertise. The Commission will serve Kenyans well if it stayed within its mandate. We will achieve what we are doing if we respect our territorial authority.”

The Minister of the Justice and Constitutional Affairs Mutula Kilonzo backed the Attorney General declaring that, “any attempt to seek to audit the functions of Parliament and the Executive is not in the [Commission’s] mandate.”

However according to the constitution the CIC is charged with monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement the Constitution.

To achieve its mandate the Commission is supposed to “co-ordinate with the Attorney General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement the Constitution.” In Article 261 (4) the constitution provides that “The Attorney General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.”

Given its constitutional mandate, it would seem to me that the CIC was well within its mandate to request that it scrutinize private members that touch on implementation of the constitution before their introduction to parliament, your thoughts?

November 25, 2011

19:14

Salaries and Remuneration Commission

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Parliament has received the names of 13 nominees for the Salaries and Remuneration Commission – Sarah Serem (Chair), Peter Oloo Aringo (to represent the Parliamentary Service Commission), Daniel Ogutu (Public Service), Celestine Kiuluku (Judicial Service), Sarah Kinyua (Teachers Service Commission), Samuel Kirubi (Defence Council), Jason Namasake (Senate), Isaiah Kubai (COTU), Jacqueline Mugo (FKE), Anne Owuor (APSEA), Joseph Kinyua, Titus Ndambuki, Wanjuki Muchemi. If the vetting of the nominees goes smoothly the country may have a Salaries and Remuneration Commission by next week or the week after.

Not a moment too soon in light of the number of strikes among public sector employees over the last few months i.e.

The nation-wide teachers’ strike over salary and understaffing. The strike paralysed learning institutions across the country. Though the strike was eventually called of the issues off recruitment of new teachers and teachers’ salaries are yet to be fully resolved.
The strike of over 7,000 university lecturers over low salaries and the fact that their salaries have not been increased for the last three years.
The doctors strike, in which doctors in public hospitals demanded a 400% salary increase.

Under the previous dispensation the determination of the salaries of state officers was highly fragmented. The Parliamentary Service Commission reviewed and made recommendations on salaries and allowances of the members of the National Assembly. Parliamentarians effectively determined their own salaries, and that of senior constitutional officials. The Public Service Commission had oversight over the salaries of most other state officers. Under this arrangement the disparate salaries between members of parliament, senior constitutional officers and other public officers i.e. doctors, teachers and lecturers is hardly surprising. Nor is it surprising that some of the most important public sector employees i.e. doctors and teachers received the short end of the stick when it came to salaries and salary reviews.

The Salaries and Remuneration Commission, established by Article 230 of the constitution, is mandated to set and review the remuneration of all state officers. It is also empowered to advise the national and county governments on remuneration and benefits of all other public officers. The power that the National Assembly currently wields with regard to the determination of the remuneration and salaries of the President, MPs and other senior constitutional officers is now vested in the Salaries and Remuneration Commission. Also important is the fact that the Salaries and Remuneration Commission’s make up is representative of the cross section of public employees not just the national assembly. These factors will hopefully contribute to more representative, egalitarian, and transparent salary determination process for all state officers.

November 19, 2011

8:59

Supreme Court and (No) Election Date

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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.

November 18, 2011

11:35

On Syokimau

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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.

November 14, 2011

13:56

290 constituencies in 4 months

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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:

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
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”.

November 12, 2011

12:59

Should the Parliamentary Service Commission be disbanded?

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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?

November 07, 2011

11:44

Should Taxpayers Expect to Pay Out More Refunds for Corruption?

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“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?

October 28, 2011

1:51

[nt]

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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.

October 21, 2011

21:33

On the Incursion into Somalia

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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?

October 17, 2011

0:40

The Public’s View of Progress of Constitutional Implementation?

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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.

October 13, 2011

23:45

“Errors” of Government Printer

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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?

October 11, 2011

0:55

National Intelligence Service Bill

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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.

October 08, 2011

12:13

Are Policy Makers Doing Enough?

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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?

October 04, 2011

2:38

On The Minimum Education Requirement for Elective Posts

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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?

September 29, 2011

23:51

IDPs To Vote or Not to Vote 2012

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September 27, 2011

8:55

On Sidelining of Commissions and Independent Bodies

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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.

September 23, 2011

17:58

Amendments To The Constitution, Your Thoughts?

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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?

September 14, 2011

18:19

Tigania West CDF funds embezzlement

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September 09, 2011

13:36

On the Teachers’ Strike

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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?

August 28, 2011

1:44

Is Gender Balance Really Technically Impossible to Achieve?

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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?

August 26, 2011

1:16

Just in time legislation?

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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.

August 21, 2011

21:51

On leadership

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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.

August 18, 2011

22:57

Attention Kenyan taxpayers, your MPs keep fooling you.

» ‎ Mzalendo.com

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?

August 14, 2011

1:48

12 Constitutional Bills to pass in 2 weeks, how did we get here?

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

How did we get to this point? The point where Parliament has just shy of two weeks to pass 12 constitutional bills! When the constitution was promulgated in August last year it was evident that its implementation would require the enactment of a multiplicity of complex legislation.

It seems, to me at least, that all provisions were made to ensure that transition from the old dispensation to the new dispensation was a smooth as possible. The new constitution staggered the deadlines for the enactment of all the required legislation according to urgency. The constitution also set out clear time lines for enactment of said laws. It also broadly outlined the manner in which the transition was to be managed and new laws passed in the transitional and consequential clauses in the 5^th and 6^th Schedule. Two new bodies, a parliamentary select committee, the Constitutional Implementation Oversight Committee, and an independent commission, the Commission for the Implementation of the Constitution, were formed to oversee the transition.

Yet here we are, so far only the Vetting of Judges and Magistrates Bill, the Judicial Service Bill, Independent Electoral Boundaries Commission Bill, The Salaries and Remuneration Commission Bill, and The Supreme Court Bill have been passed. However still pending is the enactment of legislation of on:

Citizenship (Article 18)
Kenya National Human Rights and Equality Commission (Article 59)
Ethics and Anti-corruption commission
Elections (Article 82)
Electoral disputes (Article 87)
Political Parties (Article 92)
Urban areas and cities (Article 183)
Contingencies Fund (Article 208)
Loan guarantees by national government (Article 213)
Revenue Allocation Commission
Commission on Administration of Justice
Ratification of Treaties

The passing of a bill of does not happen overnight. Before a bill becomes law has to presented before parliament, go through a first reading, followed by a second reading, a committee stage and third reading. Each stage has a purpose the rigor of each stage has implications for quality of the bill. A glance at the bill tracker on parliament’s webpage, updated as recently 8^th August, shows that some of this legislation has not been even been presented, and the few bills that have been presented are somewhere between the first reading and the second reading (as a side note is it really necessary for all the bills to be separate pieces of legislation?)

Seriously, what are the chances of parliament meeting the constitutional deadlines for the enactment of the requisite laws? And even if parliament does meet the constitutional deadlines what are the implications of the trying to pass this amount of legislation in two weeks on the quality of the laws? And what are the implications on the constitutional requirement for public participation in the making of laws (Article 118)?

August 12, 2011

11:10

IEBC Selection panel

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

On Monday this week the country’s new independent electoral and boundaries commission selection 7 member panel was sworn in. In case you missed it the panel is made up of Ekuru Aukot (Chairman), Prof. Marion Mutugi (Vice Chair) Justice Isaac Lenaola, Mwanyengela Ngali, Ms. Rosa Buyu, Ms. Irene Keino and Ms Sophie Moturi.

So what next? According to the Independent Electoral Boundaries Commission Act 2011 advert inviting qualified Kenyans to apply for the positions, and publishing of the names of the all the applicants within the next seven days. The selection panel will then consider the applications, shortlist and interview the selected applicants. The Selection Panel will select three persons for the position of chairperson, and thirteen for positions as commissioners. The panel will then forward the names to the President and Prime Minister, who will then consult, and nominate one of the persons as the chairperson, and eight as a members of the commission. The President will then forward his list of nominees to the National Assembly for vetting and approval.

A parliamentary committee will within 14 days of receiving the names consider the nominees and make recommendations to Parliament with regard to the nominees. The National Assembly will within 14 days of its next seating consider the nominations and make a decision on whether to reject or approve the nominees. If the nominees are approved within seven days of the approval the Speaker will forward the names to the President for appointment. If the any of the nominees is rejected the Speaker will inform the President, who will within 14 days of the rejection, submit a new nominee from the panels list to the national assembly. If any of the subsequent nominees are rejected by parliament, the selection panel can put forward a name from among the shortlisted candidates.

In theory the process is pretty clear and straightforward, and should be carried out expeditiously. However in reality it’s likely the establishment of the Independent Electoral and Boundaries Commission (IEBC) will be filled with the usual political skulduggery. Constituting the Selection Panel so late in the day, represents the first hurdle in the panels work, and means constitutional deadline for the establishment of the IEBC (one year after the constitution’s promulgation (see sixth schedule, section 29 (1) of the new constitution) is unlikely to be met but who knows…in any event we’ll be watching.

August 07, 2011

22:32

Drought And Famine, Could The Government Respond as Quickly if the Same Questions were Asked of Them?

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

I was reviewing the Hansard hoping to find some debate on the 12 bills that still need to be passed before the one-year anniversary of the promulgation of the constitution 27^th August 2011. When I stumbled upon these questions raised by MP for Wajir West, Mohammed Sirat, regarding the intervention by the Kenya Red Cross in the ongoing drought and crisis:

a. To what extent is the Kenya Red Cross Society supplementing the Government efforts in drought mitigation and the distribution of relief food to persons affected by drought and famine in the country and who is the society accountable to?
b. What percentage of the national and international emergency relief appeal has been realized so far and how much has been utilized in the country and could the Minister table a detailed proof of collection and expenditure?
c. Could the Minister confirm that the organization is putting up Five Star hotels in Nairobi, Nyeri and Eldoret and has acquired more than 3,000 acres of land in Mlango in Tana River while Kenyans are dying of hunger and, if so, clarify whether this is part of the organization’s core mandate?

The questions struck me as absurd on several levels, because most of the information asked for by the MP is readily available on the Kenya Red Cross website, or from the offices of the Kenya Red Cross including information on the hotels, the proceeds of which sustain the activities of the Kenya Red Cross. The questions also made me wonder if the MP really understood what the Kenya Red Cross is, what it does, and its relationship (or lack there of) to the government?

It is worth noting the Assistant Minister of Special Programmes was able to answer immediately, with facts and figures, all the questions asked. Further several MPs in the house commended the work of the Kenya Red Cross in the ongoing crisis and work that the organization had done in their constituencies.

To me it seemed that MP’s vitriol was directed towards the wrong institution. The intervention of Kenya Red Cross and other humanitarian organizations in the drought speaks more to the gaps in the government’s ability to plan and respond effectively to the drought and famine.

In a similar way that the Kenya Red Cross is accountable to its donors both local and international and has made available information on their relief efforts. The government is/should be accountable to its citizens and this made me think could the government readily provide answers to same questions if asked of them?

What is the Government doing in effort to mitigate the drought and famine situation in the country?
What percentage of the national budget has been allocated to drought and famine relief? How much has been utilized and could the government table a detailed proof of allocation and expenditure?
Could the Minister confirm that the organization what is happening with the billions shillings that is unaccounted for while Kenyans are dying of hunger?

August 03, 2011

20:11

Bio Safety Act /GMOs, Have The Promises Been Kept?

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By Moreen Majiwa (@mmajiwa)

The issue of whether or not to import GMO’s into the country has been ongoing for over a decade. Despite the initial resistance to the Bio Saftey Bill it was passed almost unanimously during its third reading. The passage of the Bio-Safety Act was the official enactment of a law to that would both allow and govern the importation of GMOs. Several MPs supported the bill with the promise that GMOs would be properly policed. Below are excerpts from the debate on the Bio-Safety Act and the names of the MPs who supported the Bill and those that did not.

Have the promises on regulation of GMOs made during debate on the Bio Safety bill been kept? You decide.

MPs who supported the Bill

Dr. Kilemi Mwiria (The Assistant Minister for Higher Education, Science and Technology)

‘This is a Bill on safety to safeguard Kenyans against the unintended use of genetically modified organisms (GMOs). In other words, it is to guard against the very same fears that a lot of us are expressing with regard to issues of biotechnology. It is also to guard us against a situation which is already occurring in that we already have GMOs with us.’

Robert Monda: “we are putting in place safety and regulatory mechanism so that we can through an Act regulate any GMOs. We want to allay the fears that have been expressed by hon. Members – I think it is the name that has fuelled the fears. These are genetically modified organisms! That is simple and straightforward English: It is not science. We want to be very clear that we do not create unnecessary fear in the public; that GMOs are coming in with complications, health problems or lack of food. We are not introducing GMOs now. They are already there!”

William Ruto: “There are very clear guidelines on the safe use of GMOs that are provide in the Bill. The framework established under the Bill are full-proof mechanism that no GMO will be introduced into this country unless it has been subjected to a thorough research and scientific analysis to ensure that it is safe in not only in terms of health for humans beings but also safe for the environment.”

Jakoyo Midiwo: “It is very surprising that there is lot of opposition to this bill.”

Dr. Wilber Otichilo: “GMOs are part of science and technology. This Bill is going to guard this country against anybody bringing in GMOs or any other crops that we deem unfit for this country.”

Sally Kosgey: “Sir, the new law does not seek to introduce any GMOs or products of GMOs without strict supervision and quarantine. The new law is, indeed, for the protection of Kenyans from careless escapes or presentation of GMOs or products of GMOs, in strict accordance with the Cartagena Protocol”

Per the Hansard MPs who spoke in support of the bill – David Koech, Elizabeth Ongoro, Danson Mungatana, Rachel Shebesh, Noah Wekesa

MPs Opposed to the Bill

Silas Ruteere: “I am not convinced because I know contrary to what has been advocated for the countries that use GMOs like maize or sorghum…grow then for animals. WE want to introduce GMOS but the mechanisms for the issues to do with warehouses, proper control and lack of control for contamination of our seeds have not been provided for in the bill.”

John Mututho: “I am prepared to table a document which gives a summary of the world research on food productivity based on GMOs, showing clearly that there has never been any significant change except for the maize variety MO810, which increased up to a level of 10% and not beyond that .”

Aden Duale: “the fundamental question I want to ask and which I want everybody to hear is; if today you are the policy-maker in this country, could you allow a large scale-farmer to plant GMOs? If you are a policy-maker in this country, you need to ask yourself; if you were a consumer, will you eat such food?”

Franklin Bett: “We must not mix these seeds with other seeds. I want to say that we must allow risk assessment to be properly done before we introduce GMO products. In this country we seem to be in a hurry to introduce them.”

July 30, 2011

1:06

Drought – what happened to government structures?

» ‎ Mzalendo.com

July 25, 2011

18:09

The Auditor General’s Report 2009/2010, Will Anyone be Held to Account?

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Having an independent Auditor General is clearly yielding results. The Auditor General’s report for the financial year 2009/2010 was recently tabled before parliament and the irregularities just keep mounting. In the last two months the office of the Auditor General has revealed a myriad of faulty accounting practices, and missing or unaccounted for billions from various government ministries:

4.2 billion from the Ministry of Education (Minister-Samuel Ongeri)
3.6 billion from Ministry of Public Health (Minister-Beth Mugo),
889 million from the Roads Ministry (Minister-Franklin Bett)
743 million from the Ministry of Foreign Affairs (Formerly run by Moses Wetangula, currently Internal Security Minister Prof. George Saitoti is holding the Ministries brief)
662 million from the Ministry of Internal Security Ministry (Minister – Prof. George Saitoti)
408 million from Special Programmes (Former Minister Naomi Shaban Current Minster Esther Murugi)
196 million from the Ministry of Lands (Minister James Orengo)

*And this is not even a comprehensive list?!

**Ministers Franklin Bett (Roads) and Beth Mugo (Public Health) have dismissed the Auditor General findings.

The Auditor General reports also reveals that several ministries have an outstanding bill to suppliers of Kshs 16 billion. Named again are the Ministry of Roads, Education, Special Programmes, Provincial Administration and Internal Security other bill defaulters include Local Government Ministry, Public Works, Agriculture, Home Affairs. Irregularities have also been noted in the Ministry of Information and Communication.

No doubt we will be treated to the usual buck passing – from Minister to PS to subordinate staff and back again – that accompanies such revelations, promptly followed by denial of responsibility and refusals to resign. However lets hope that the report and the naming of the Ministries involved is the first step in establishing mechanisms that will prevent such pilferage from happening in the future, and holding those responsible to account.

July 21, 2011

14:47

What Foreign Travel by Parliamentary Committees Costs Taxpayers

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Did you know that each parliamentary committee receives approximately 60 million ksh for foreign travel?

If each committee receives foreign travel budgetary allocation of 60 million shillings and there are approximately 27 parliamentary committees (excluding ad hoc committees) that make a total of that makes approximately 1.6 billion ksh for foreign travel alone in plane tickets, accommodation, per diems etc.

How does this break down in terms of allocation per individual MP? Well, each committee has approximately 11 members (except the house business committee which has 27 members) and each committee receives a total of 60 million kshs, this breaks down to an annual foreign travel allocation of almost 5.5 million kshs per MP and of course that allocation per MP doubles if the MP sits on more than one committee (list of parliamentary committees and who sits on them).

Another problematic issue is that all the committees receive the same monetary allocation for foreign travel regardless of whether the mandate of committee requires extensive travel or not. No distinction is made between mandates and need to travel, this means that committees that deals with let say catering or the library, which you would expect would travel less, would receive the exact travel same allocation as the Defence and Foreign Relations Committee, which by virtue of its mandate would be expected to travel more.

According press reports this fiscal year 2011/2012 alone, the allocation for foreign travel by committees has trebled to 491 million kshs from 162 million kshs in 2010/2011. The clerks office received an allocation of 35 million kshs, for foreign travel, the speaker’s office 9 million kshs, and the parliamentary service commission has been allocated 30 million kshs. In addition, the Parliamentary Service Commission recently increased MPs foreign travel allowance by 20 per cent, after MPs complained about the high cost of travel.

Unfortunately, there is no way to confirm what all this money is spent on, whether it is effectively spent etc. As long as there is government expenditure on foreign travel it is important for there to be proper accountability mechanisms that tracking all aspects of expenditure on foreign (and domestic travel) i.e. travel to from work, travel on parliamentary business, foreign travel, committee travel. These should be made public so that taxpayers can assess if foreign travel is value for taxpayer shillings or a mode of self- enrichment for MPs.

July 18, 2011

11:48

CIC Commissioners Salaries

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By Mzalendo Contributor – Moreen Majiwa

‘The government is not in support of the exorbitant figure of Sh1.3 million per month for the Chair of the Commission for the Implementation of the Constitution (CIC), Sh1.17 million for the Vice Chair and 1.14 million for the Commissioners. This translates to Sh10.4 million per month, for the commissioners alone, these rates are not only above normal for other state officials but unsustainable.” Dr Alfred Mutua, the government spokesperson, said in an official statement following the government’s rejection of the salary structure for CIC commissioners proposed by the Public Service Commission (PSC).

The salary of CIC commissioners was the result of a negotiation between the Treasury, the PSC and the CIC in early May in accordance with Article 17 of the Commission for the Implementation of the Constitution Act 2010 which states: ‘Salaries and allowances payable to…. the chairperson and the members [of the CIC] shall, pending the establishment of the Salaries and Remuneration Commission, be determined by the Public Service Commission in consultation with the Treasury.’ Though the government has rejected the proposed salary structure the Commissioners of the CIC have argued that the amount proposed by the PSC falls within the Band A1 of the Constitutional Offices Remuneration Act of 2009 in which Band A1 means: ‘A salary scale commencing at Kshs. 399, 440 per month, increasing by 39, 940 per annum to Kshs. 439,380 per month; thereafter increasing by Ksh.43, 140 per annum to Kshs. 482,520 per month; thereafter increasing by Ksh.49,140 per annum to Ksh.531, 660 per month; thereafter increasing by Ksh.55, 140 per annum to Kshs. 586,800 per month; thereafter increasing by Kshs. 61,140 per annum to Ksh.647, 940 per month thereafter increasing by Ksh.67, 140 to Kshs. 916, 500 per month.’

The major implication of the government’s stance on the CIC commissioners’ salaries – which have not been paid for the last 7 months of service – means they are unlikely to be remunerated until the matter is resolved. The fallout from the failure of the government and the CIC to reach an agreement on the issue of commissioners’ salaries has resulted in long-standing delay in the hiring of CIC staff the CIC currently operates without a secretariat. More recently the CIC commissioners have stated that due to the ongoing salary dispute bills on Devolution, Police Reform, Lands, Leadership and Integrity will be shelved. With the next election less then 13 months away is there could not be a worse to shelve these particular bills. The commissioners have also stated their intention to work on a part-time basis an act that will significantly slow down the implementation process.

While Dr. Alfred Mutua, communicating for the government, is right in stating that the commissioners salaries are above normal (Band A1 according to the Constitutional Offices (Remuneration) (Act 2009) is reserved for the Attorney General and Chief Justice, Commissioners e.g. those in PSC and IIEC, fall within Band A2 or A3). If the PSC was consulting the Treasury in the CIC salary negotiations, surely the Treasury should have raised the fact that government can neither afford nor sustain such salaries and allowances during the negotiation stage and a more realistic and acceptable salary agreement reached. If the CIC commissioners’ salaries were negotiated and agreed upon by the PSC, the Treasury and CIC, the commissioners have a right to expect to be paid the agreed amount. A possible solution of course would be to pay the Commissioners’ the legally negotiated amount and tax both their salary and allowances, just like the salaries of every other Kenyan. But with the majority of the 212 MPs refusing to remit their taxes they have lost the moral authority to insist that other state officials be taxed? In all this confusion one thing is clear there clearly needs to be established an acceptable, affordable and sustainable salary scale for constitutional officers that is acceptable to both taxpayers and the state officers performing the service.

July 11, 2011

17:46

On Harassment of Protestors

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July 08, 2011

0:29

Ministry of Education – Where does the buck stop?

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

In a statement issued by the Minister of Education responding to calls for his resignation he stated unequivocally that he could not compromise corruption with his political responsibility by resigning as minister, that he would be committing political suicide if resigned, he also took the opportunity to point out to his critics that he dealt only with paperwork and not cash.

The utterances made by the Minister are problematic on too many levels to enumerate. Even if the Minister dealt onlt with paperwork and not cash as he stated, the ‘disappearance’ of more than 4billion Kshs over several years without detection could hardly have been a hard cash transaction and is one that is likely to have involved a significant amount of paper work and cover up. Surely the sheer amounts of funds missing and the number of corruption scandals that have taken place in the Ministry under his watch call into account his ability to lead/oversee the running of the Ministry, and as the leader of the Ministry doesn’t the buck stop with him?

Since Chapter 6 of the constitution on leadership and integrity is the benchmark by to which we hold our leaders to account for their actions it could be successfully argued that the theft of 4.2 billion Kshs for free primary education under the Minister’s watch, means that he falls foul of both Article 73 (1)(a)(iv) of the constitution which states that authority assigned to a State officer is a public trust and requires that trust to be exercised in a manner that ‘promotes public confidence in the integrity of the office.’; and Article 73 (2) which states that the guiding principles of leadership and integrity include (c) selfless service based solely on the public interest (d) accountability to the public for decisions and actions.

From the continuing protests outside the minister’s Jogoo House offices and the increasing calls for his resignation by the public, the Minister in the exercise of his duties has failed to promote the public confidence in the integrity of the office and in fact has done the opposite. In his refusal to resign citing political suicide it could be called in to question whether he is indeed acting in selfless service based solely on the public interest? Further questions about accountability are raised when the minister passes the buck by stating that he deals with paperwork and not cash and that he is not responsible, if the Minister, who is in charge of the Ministry is not accountable for missing funds under his watch then who is?

June 28, 2011

18:03

List of Kenyan MPs who are refusing to pay taxes

» ‎ Mzalendo.com

June 27, 2011

0:16

MP taxation

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The Kenya Revenue Authority (KRA) announced that in accordance with the constitution MPs will now be required to pay taxes on their income i.e. just like every other income earning Kenyan. Moreover KRA wants the MPs taxes back-dated to August 2010, the month in which the constitution promulgated, and has threatened to penalise any member of parliament who fails to pay taxes.

The move is a win for the Kenyan public who have campaigned numerous times for the members of parliament, that they have elected to pay taxes. However, the implementation of the constitutional requirement that MPs pay taxes has sparked opposition from the members of parliament, in effect dismissing the wishes of the electorate. What happened to sovereignty of the people?

MP Olago Alouch, Kisumu Town West, has said if the negotiations with the KRA fail MPs could affect proposals in the Akiwumi report, which would allow MPs to increase their basic salary to Kshs1.2 million if adopted.

However there are a few constitutional hurdles that would invalidate this option:

First, the new constitution removes from MPs the power to set or review their salary or benefits and puts that decision on the hands of the Salaries and Remuneration Commission [Article 230 (4) (a)]. This means MPs can no longer raise their salaries unilaterally as in the old dispensation. The commission is independent so parliament’s ability to influence it is limited. Increasing their salary through the adoption of a report would probably be unconstitutional given that this is no longer under the mandate of parliament.

Second, the Article 210 (3) states no law may exclude or authorize the exclusion of a State officer from payment of tax. This is pretty clear any law that allows state officers not to pay tax is in contravention with the constitution, and would be invalidated by virtue of this contravention.

It would seem in bad faith for the MPs to act increase their salaries so that increase would offset the cost of the taxes. Let them join the rest of hardworking Kenyans and lets make sure our katiba mpya is adhered to.

June 24, 2011

16:58

On Ministers holding Positions in Political Parties

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The head of the Constitution Implementation Commission, Charles Nyachae cited the reluctance of ministers to surrender office in political parties as one of the issues holding up the implementation of the constitution. So what’s the constitutional position?

Article 77 (2) of the constitution states: “an appointed State officer shall not hold office in a political party.” The clause is pretty straightforward and needs little explanation.

If this Article came into play immediately it would affect several high level politicians Deputy Prime Minister/Finance Minster Uhuru Kenyatta, Water Minister Charity Ngilu, Internal Security Minister/Acting Foreign Minister George Saitoti, Energy Minister Kiraitu Murungi, Medical Services Minster Anyang’ Nyong’o, Justice Minister Mutula Kilonzo.

The Prime Minister and the several ministers have disagreed with the Constitution Implementation Commissions position. The Minister for Justice, and Constitutional Affairs Mutula Kilonzo has argued that the provision barring state appointed officers from holding positions in political parties only kicks in after the 2012 elections a position supported by the other ministers involved. However he has agreed to resign his party position if the other ministers mentioned resign as well. This opposition is likely based on Article 3 (2) of the transitional and consequential clauses of the constitution.

This article deals with portions of old constitution that remain operational until the next general election:

“Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the former Constitution concerning the executive, and the National Accord and Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general elections held under this Constitution, but the provisions of this Constitution concerning the system of elections, eligibility for election and the electoral process shall apply to that election.”

The point of contention is the part that reads ‘provisions of the former Constitution concerning the executive’. The provisions of the former constitution that govern the executive do not explicitly mention the conflict that may arise from Cabinet Ministers holding executive positions in political parties, nor does it prohibit members of the executive from holding positions in political parties. On a whole the old constitution is silent on the matter of whether ministers can or cannot hold party positions and cabinet simultaneously. The ambiguity means the field is open for virtually any interpretation. There’s the argument that instances of silence the spirit of the constitution should be followed. Fortunately we now have a Supreme Court to untangle the conundrum.

June 20, 2011

0:21

Should use of indigenous languages be banned in public offices?

» ‎ Mzalendo.com

By Moreen Majiwa (@mmajiwa)

A few weeks ago the media covered an audit report conducted by the National Cohesion and Integration Commission on ethnicity in the civil service. The NCIC report showed despite the existence of the 48 communities in Kenya 80% of public services is occupied by only 6 communities – ethnicity continues to be an ongoing conversation not just on the street but in parliament as well.

However , unless you watch parliamentary sessions on TV or were actually at parliament on the 8^th June 2011 you probably missed this..on 8^th June 2011 Maragwa MP Elias Mbau stated that he was: “Concerned that the use of indigenous languages in public offices and national institutions is a major contributor to disharmony, suspicion and discomfort in public offices in the country>”

He then urged the Government to: “Ban the use of indigenous languages in all public offices, except by Government Field Officers at the level of locations and sub-locations in public barazas, where it is expected that nearly all of the audience understand the local language used.”

He stated the motion aimed: “to ban the use of vernacular languages in public offices as it causes disharmony and discomfort to those who may not understand a particular vernacular language and might stir ethnic hatred.”

He used as his main point of reference Article 7(2) of the Constitution that recognizes Kiswahili and English as the official languages of the Republic of Kenya. While the MP recognized that the article 7 (3) provides for the protection and promotion of diversity of the language of the people of Kenya, and the importance that language as tool of communication, as tool of culture and identity. He argued ethnicity had a negative aspect declaring “we have a good proportion of ethnic chauvinists both in this House and outside this House – who are inclined to see only the members of their tribe as people and also denigrate all others as something less.” He went on state that in the workplace and particular in the aftermath of the 2007/2008 post election violence language has been used a way that is exclusionary, discriminatory that fosters conflict.

Work place diversity is a complex issue when you consider issues of the gender, age, education, background, ethnic group, language adds another layer to the complexity. What has your experience of use of indigenous languages in the workplace been, positive or negative? Do you agree with the motion put forward by MP Elias Mbau to ban the use of indigenous language in the workplace? And would it have the intended effect of reducing discrimination and promoting social cohesion?

June 17, 2011

10:48

Continued graft in the Ministry of Education

» ‎ Mzalendo.com

By Moreen Majiwa (@mmajiwa)

What is going on at the Ministry of Education? The amounts as well as the number of discrepancies in the Ministry’s accounts are startling not just because of the sheer enormity the missing/unaccounted for funds, and how long the graft has been going on. But more so because of the long-term implications of such impunity for

The children who depend on the public system for education, (which lets face it is most of the Kenyan population)
The teachers who are employed in the pubic school system and how they teach.
The taxpayers and the donors who pay for the public education system

According to the newspapers an audit conducted by the Ministry of Finance of the Ministry of Education shows:

‘Discrepancies totalling 2.27 billion shillings, which do not tally with the Ministry of Education records and bank account balances’

‘1.9 billion shillings failed to reached 512 primary schools for construction projects’

‘A further 3.1 million shillings was deposited in bank accounts for schools, which did not have teacher service commission codes implying that the schools were not officially recognised.’ The Minister of Finance has also indicated that identifiable individuals later withdrew amounts.

This is not the first time that the Ministry of Education has been implicated in grand corruption:

In 2009 there were reports that Kshs 1.3 million meant for Free Primary Education was misappropriated. Kshs 75 million meant for the School Equipment Production Unit (SEPU) and Kshs. 83 million meant for Kenya Education Sector Support Programme (KESSP) programmes could not be accounted for.

In 2010 the Education Minister, Samuel Ongeri was suspended for 3 months over corruption allegations.

In 2010 United States government suspended a planned five-year, $7-million capacity building program for the Ministry of Education. In December of the same year the UK government announced that it was withholding a final installment of $16 million of a five-year education-funding program that began in 2005. In both cases the funding was pulled over allegations of corruption in the Education Ministry.

While calling for the resignation of the Minister for Education Samuel Ongeri and his Permanent Secretary Professor James Ole Kiyapi (who has expressed interest in running for president in 2012) to resign KACC Head, PLO Lumumba, notes that the Education Ministry currently has 18 corruption cases pending in the Kenya courts.

The Minister for Finance has stated that the forensic trail revealed an attempt to cover up the discrepancy through manipulation of the cash books and that evidence also reveals identifiable individual accounts into which the some of the funds have been funnelled.

Chapter 10 of the Constitution on leadership and integrity is more than just nice words. This audit represents that an opportunity for the government to put in place the appropriate checks, to hold the identified culprits to account, to ensure the return of funds especially where they can be traced and to implement punitive measures that deter and curtail such widespread impunity.

In the meantime it would be interesting to see the full audit report.

June 13, 2011

0:24

Supreme Court 101

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By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

It’s been a busy week for judicial reform – the parliamentary vetting committee vetted the Public Service and Judicial Service Commission nominees for the positions of Chief Justice, Deputy Chief Justice and Director of Public Prosecutions. The COIC approved the candidates (the candidates will now wait for the approval of parliament before they are confirmed). Parliament approved the Supreme Court Bill without amendments (the bill now awaits presidential assent). The Judicial Service Commission is now in the process of whittling down to 5 the 26 candidates (10 of whom are women), shortlisted for the positions of the Supreme Court Justice.

Though the constitutional deadline for the Supreme Court is not until the 26^th of August this year, given the controversy over interpretation constitutional issues e.g.

The initial presidential nominations of candidates for Chief Justice, Attorney General and Director of Public Prosecutions
When the next elections should be held, August 2012, December 2012, February 2013
Whether or not the Finance Minister should have read the budget etc, etc.

Some would say the say the formation of the Supreme Court not only much needed but is overdue as well.

So what exactly is the Supreme Court? The Supreme Court will be Kenya’s new top court. All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court 163 (7). It will be headed by the Chief Justice and will have six other judges but will require only five judges to sit at any one time.

The Supreme Court will hear appeals from the Appeal Court and any other court or tribunal as prescribed by national legislation. Though it will be able to determine its jurisdiction i.e. what cases to hear. Kenyans do have the right to appeal to the Supreme Court particularly with regard to constitutional matters or rights. So, if your rights are violated and you dissatisfied with the Appeal Court’s decision, your case must be heard by the Supreme Court. The potential for strategic litigation, and formation of new jurisprudence through the Supreme Court is immense.

The Supreme Court will also have two other specific roles: It will have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President. In layman’s terms disputes regarding the election of the of President go directly to the Supreme Court, which will then be required to resolve the dispute within 14 days.

The Supreme court will also give advisory opinions on matters concerning county governments i.e. if there is uncertainty about which arm of devolved government is responsible for a particular function or about funding continue the Supreme Court could be asked for an opinion).

Article 14 of the recently approved Supreme Court Bill also gives the court a ‘Special Jurisdiction’ to within 12 months of the commencement of the Act review the judgments of any judge, removed by a presidentially appointed tribunal, or by the vetting process or who resigns or opts to retire as a result of a complaint of misconduct, or misbehaviour.

June 10, 2011

18:04

Parliamentary Vetting of the DPP

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Of all the vetting performed by parliament on Tuesday, the most interesting was the vetting of the Public Service Commission nominee for Director of Public Prosecutions Keriako Tobiko. Why? The Judicial Service Commission’s process of choosing, vetting and nominating of candidates for Chief Justice and Deputy Chief Justice was a pretty open process and all the interviews were publicly televised. The process through which Public Service Commission chose and nominated Mr. Keriako Tobiko was not, for the public who were shut out of this seemed like the an initial first vetting of candidate. The almost three hour interview was intense, while most of the parliamentary vetting panel seemed to acknowledge Mr. Tobiko as being highly qualified for the post both academically and in terms of intellect, they raised serious questions about the record of failed prosecutions carried out by the department of public prosecutions under his watch as well as questions that went to the heart of the nominees character and integrity.

MP Ababu Namwamba raised issue with the process through which Mr. Tobiko was nominated as well as sections public’s perception of the nominee as a ‘systems man’ and ‘master of inertia’ particularly when it came to prosecuting large scale corruption against cases against Kenya’s political elite. Several members of the panel brought up the recent acquittal of Eldoret North MP William Ruto in which the prosecution failed to call a pertinent witness as an example. MP John Mbadi asked targeted questions about the number of prominent persons that the Mr. Tobiko had successfully prosecuted over corruption allegations. He also queried the nominee’s appropriateness for the job considering that the National Assembly had adopted a report that had mentioned the nominee adversely in connection with the Anglo-leasing case. Other issues that came up were the nominees conduct during his tenure at Constitution of Kenya Review Commission (CKRC), the allegation by suspended Local Government MP Sammy Kirui that Mr. Tobiko attempted to solicit from him a bribe of Kshs. 5million. MP Millie Odhiambo raised issues of conflict of interest and abuse of office.

While the DPP nominee admitted the sub-par success rate with regards to prosecutions, he valiantly defended him against allegations that went to his character. However given the extremely powerful position of the DDP as envisioned by Article 157 of the new constitution do you think issues that came up during the parliamentary vetting of Mr. Tobiko raised serious questions about his suitability for the job?

June 07, 2011

1:56

On the Kenya govt ICC case

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

On Monday the pre-trial chamber ruled unanimously that the government had not embarked on any investigations and dismissed the Kenyan Government’s case. Earlier in the year after the expensive failure of shuttle diplomacy, the government made application challenging admissibility of the two Kenya cases at the International Criminal Court. The grounds of challenge were that Kenya is on the path of constitutional and judicial reform and can therefore investigate and prosecute those most culpable for the post election violence.

In evidence of this the government’s application had as annexures:

A letter from the Attorney General to the Police Commissioner asking him to investigate and determine the identities of those who masterminded the violence.
A list of concluded cases which related to crimes during the post election violence,
The promulgation of the new Constitution,
The number of Bills that had been enacted by Parliament to reform the judiciary, the police and the Department of Prosecutions.

In my opinion these 4 elements were probably the strongest part of the governments case but also most the problematic. As well as revealing of weakness not only in the claim of ongoing reforms but also to the claim that Kenya is as a result of the reforms ready willing and able to investigate the six ICC suspects.

The letter from the Attorney General to the Police Commissioner ordering him to investigate the crimes was written the day after and the government filed its case. Which makes me wonder about the political will to investigate the masterminds of the election violence considering the crimes took place more than three years. Regarding the list of concluded cases relating to post election violence it would be interesting to see where these have been reported? The Pre-trial Chamber stated that the government ‘failed to provide the Chamber with any information as to the conduct, crimes or incidents for which the suspects are being investigated or questioned’

We did promulgate a new constitution however the implementation has been slow at best and fraught with inter-party wrangles, missed deadlines, and confusion over interpretation. So though the constitution was promulgated given the pace of implementation and the seeming roadblocks and confusion at every stage it will be a while before reforms realised. As far as the number of the Bills of enacted, its amazing that this was a submission to support the fact that Kenya can try the ICC cases considering when only two constitutional bill had been passed at the time of the application.

Of course the AG has already stated Kenya’s intention to appeal the decision, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence, though on the points on which the appeal will hinge are unclear. Either way, the government has five days to launch the appeal.

June 03, 2011

13:08

On the Okemo / Gichuru UK case

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa

One can only imagine what a roller coaster month its been for Nambale MP Chrysanthus ‘Chris’ Okemo and former KPLC head Samuel Gichuru. On April 20, 2011 the Chief Justice of the Island of Jersey issued warrants of arrest against the two on charges of fraud and money laundering. The two were required to appear before the court in Jersey on May 5^th 2011. From the events that have transpired since, it safe to assume that neither appeared.

On Monday 23^rd May 2011 Henry Bellingham the UK Minister for Africa met with Attorney General Amos Wako and requested the AG execute the warrants. On the same day the AG handed the warrants of the arrest to recently reinstated Director of Public Prosecutions, Keriako Tobiko, to determine whether there is a case for extradition. The MP Chris Okemo and Samuel Gichuru have been listed on Interpol’s online databases for having a red notices requesting the location and arrest of the two. (Red notices allow warrants to be circulated worldwide with the request wanted persons be arrested with a view to extradition.)

The DPP has stated , concerning the extradition, that ‘the request to extradite the two Kenyans will be processed in accordance with our (Kenya’s) extradition laws and procedure and strictly in accordance with the due process of the law’ and the AG has said that he will only extradite the two if the DPP finds that the two have a case to answer in law.

Legally the two main requirements for extradition are an extradition treaty and that dual criminality exist. Dual criminality requires that in order for an extradition to be successful the crime in question must be a crime not only in the requesting country but also in the country where the person being extradited is residing at the time of the extradition request. The DPP will now look at the documents turned over to him and assess in law whether there is a case to answer.

The ball is firmly in the DPPs court as far as making the determination is concerned. It is worth noting that his reinstatement sparked controversy regarding his record of prosecuting cases against leaders. It will be interesting to see what determination he will make given the fact extradition law and policy is vague and ill defined. Whatever decision the DPP makes the political implications will be powerful. What signals would Kenya be sending about its fight against corruption if it refused to extradite the two? Similarly would Kenya be giving mixed signals about the application of justice to the rich and powerful, and to poor? Remember the rendition of Kenyan suspects to Uganda.

Also, what are the implications for leadership? MP Chris Okemos is currently the chair of the Parliamentary Select Committee, and sits on the Parliamentary Service Commission considering the issue of warrants and the constitutional requirements concerning leadership and integrity will he resign these positions?

Depending on how the matter develops there may be implications for asset recovery, repatriation of misappropriated funds that are in accounts abroad and how wealth declaration by leaders is conducted.

Needless to say we are watching.

May 27, 2011

22:17

On the Budget – What should happen under the new constitution

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The Ministry of Finance and Treasury have been getting a lot of press recently a majority of it
negative. The latest debacle is the uncertainty over when the budget will be presented before
parliament and the process that it should go through before this happens.

In the same week that Finance Minister Uhuru Kenyatta stated with precision the time and date
of the reading of budget speech for the fiscal year 2011/2012 i.e. 3.00 p.m. 8th of June 2011. The
Parliamentary Budget Committee announced that in making the statement the Minister is not only
acting under the old constitution but is attempting to subvert the new one.

While the old constitution gave the Executive near sole discretion over budget preparation and
expenditure management the new constitution changes the system and structures through which
the budget presented. Under the old constitution the budget was prepared by the Treasury in an opaque
process and then read to public on a designated day. The new constitution requires that the
Cabinet Secretary submit estimates of the revenue and expenditure of the national government
for the coming financial year to parliament at least two months before the end of each
financial year 221 (1). The National Assembly then considers the estimates of revenue and
expenditure, a committee of the Assembly then discusses and reviews the estimates and makes
recommendations to parliament, with input from the public 221(4). The Committee then tables its
report before parliament, which then debates the report and recommendations and decides either
to adopt or reject it.

In effect Article 221 reduces the power of the Treasury and increases the power of parliament
to decide how to spend government funds. However, the constitution also leaves a lot of the
detail to be worked out through implementing legislation and requires the establishment of new
structures for discussion and approval of the budget. So while the new constitution is clear on the form and process of the presentation of the budget in the new dispensation, it is silent on how and when this new system is to be made operational and
hence the confusion that now exists.

At this point an argument can be made that much of the implementing legislation and structures
required to transition to the new budgetary process are yet to be made. Further the constitution
refers a ‘Cabinet Secretary’ as opposed to a minister this would imply the Article 221 of constitution
would be effected after the first election under the new constitution when Cabinet Secretaries will
be in place. Over the next 2 weeks it will be interesting how this tension is resolved and what form the
budgetary process will take. Since the Supreme Court that is supposed to resolve constitutional
issues is yet to be set up, may be the Constitution Implementation Commission should step in.

May 25, 2011

10:37

Ikolomani By-Election: The experience of an Election Observer

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

There are probably a lot of good things that can be said about the Ikolomani by-election.
Electronic registration made for quick identification voters and it also made it possible
for the officers to identify voters who were registered at more than one polling station
and in so doing reduce rigging. Professionalism of the Interim Independent Election
Commission (IIEC) officials seemed to make the by-election a faster and more pleasant
particularly with the high voter turnout which is unusual in by-elections.

However the by-elections were not without controversy, particularly over campaign
financing and allegations of voter bribery, and this raises the issue of the role money
plays in elections, especially in the lead in up 2012.

The Institute for Education and Democracy (IED) had a team of election monitors on the
ground a month before the by-election and election observers on the ground a day before
the actual poll began. In a briefing between the two teams, the poll observers asked the election monitoring
team the major issue on which they thought the election would hinge. The election
monitors unambiguous response was money.

The link between election campaigns and the dolling out of money by political candidates seems to have become the norm. One that is so ingrained in the
public consciousness that even very young children mimic what they see. On the
day of the election while the convoy of observers drove from one polling station
to the next, children who couldn’t have been more than ten, ran beside the convoy
shouting ‘Campaign Leta Pesa’ (campaign bring money).

In any election two things are true candidates need votes, certainly to win an election or
in this case a by-election, and because of high levels of poverty a majority of the voting
public require money for their immediate needs. This has created a dynamic in which the
way campaign funds are used distorts the proper democratic process leading to a situation
where voters sell their votes and electoral fidelity for short-term financial compensation.
Effectively selling long-term developmental outcomes for immediate short-term financial
compensation.

During any election period candidates need votes, voters demand is high therefore the
stakes are higher and voters get more money for their votes, of course the money never
lasts for the five years between elections. After the elections demand for votes is low,
voters already having sold their vote have little to bargaining power and lose the moral
authority to hold their members of parliament to account. Issue based elections and
campaigns are eschewed in favour of candidates with money. Additionally candidates for
election have had to offer more and more and more money to entice voters to their camp,
and no question is asked as to where the money is coming from.

Even where money distorts democratic process voters are still making a choice between
candidates, but the choice is no longer based on rational, fair and equal examination of
competing policy issues. This may be something we want to think about in this period
when the electoral laws are being drafted.

May 20, 2011

19:31

Missing Billions…

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

By now anyone watching new or reading the newspaper knows of
the billions of shillings missing from/unaccounted for from the Treasury’s 2008/2009
budget. The Mars Group highlights deficiencies in the governments accounting systems
in its report ‘Revenue Accounting by the Government of Kenya: Unsatisfactory State
of Affairs.’ It highlights the fact that only 1 out 14 revenue accounts has been fully
certified, and uncertified revenue totals 714 billion shillings.

The never-ending corruption scandal government continues. It is no wonder that
Transparency International’s 2010 Corruption Perceptions Index ranks Kenya as one of
the most corrupt countries in the world.

In December last year, the Ministry of Finance stated that the country is losing a third
of its national budget to corruption annually i.e. 4 billion shillings. From the reports on
corruption the amounts lost are probably much higher.

In the most recent scandal 105 billion shillings that is unaccounted for in the 2008/2009
budget. Both the Minister of Finance and the Assistant Minister had been censured
for failure to attend parliamentary sessions in which they were to issue a statement
in explanation. When the Assistant Minister did attended he stated that the matter
was under investigation by a parliamentary and therefore could not be discussed. A
response that is unsatisfactory but at the same time in keeping with status quo, in which
corruption scandals seems to met an unsatisfactory resolution, and in which there is
very little accountability…

Past scandals which still remain unresolved and in which billions or millions were lost;
Anglo Leasing Scandal in which 56.3 billion shillings lost, the 4 billion shilling Grand
Regency scandal; The Triton scandal that saw the unauthorised release of oil by Kenya
Pipeline Company and in which Triton was allowed by KPC to withdraw oil amounting
to Kshs. 7.6 billion, Goldenberg which cost more the 10% of the country’s annual GDP,
the irregular transfer of 10% of Telkom shares worth tens of million, the irregular
transaction in which government of Kenya sold its 50% stake in Safaricom in an IPO,
the theft of Kshs 300 billion by Moi and his cronies highlighted in the 110-page Kroll
Report, the missing funds for Free Primary Education, the scandal over the funds for
resettlement of internally displaced persons, the maize scandal in which no less than
four government ministries were implicated, and the list seems endless…

In all these scandal government ministries and by extension the people who run them
have been implicated very few prosecutions have taken place the few that have taken
place have been unsuccessful. Its no wonder KACC wants corruption declared a national
disaster.

May 17, 2011

18:49

Resistance to the JSC nominees

» ‎ Mzalendo.com

Given the low public confidence in the judiciary, a situation that has been on going for a while now, one would imagine a break with the past is not only necessary for reform but also welcome. The Judicial Service Commission’s nominees for the positions of Chief Justice, Dr. Willy Mutunga, and Deputy Chief Justice, Nancy Baraza, provide just that. Neither has sat on the bench, and their qualifications and record as reformers is exemplary.

Though initially celebrated in the few days since the announcement of the nominations, resistance to the nominees seems to have built and gained momentum at an alarming rate among the some sections of the clergy and political establishment.

The clergy stated its reservations as to the suitability of the nominees on the basis of their values and beliefs. Lawyer Harrison Kinyanjui has moved to court to seeking an order to stop deliberation, debate, confirmation, appointment or recognition of the JSC nominees arguing that the nominations contravene the constitution in process and number of names submitted.

However nowhere in the constitution or the Judicial Service Act 2011 is there the requirement that a specific number of names be forwarded to the principles for consideration. Nor does either preclude the submission of just one nominee for each of the positions.

The constitution simply states that the President shall appoint the Chief Justice in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly, Article 166 (1) (a), no mention of numbers.

Section 166 (3) of the constitution does state that the Chief Justice shall be appointed from among persons who that have the requisite qualifications. Article 172 (1) (a) of the constitution states that one of the functions of the JSC is to recommend to the President persons for appointment. Though both provisions speak in the plural when they refer persons recommended by the JSC for appointment neither of sections rule out the recommendation of just one nominee for each of the positions, or require that the JSC forward a certain number of names.

With regards to the process and the allegation of lack transparency on the process of the selection of nominees Section 14 of the First Schedule of the Judicial Service Act 2011 outlines the procedure and criteria used by the JSC in choosing the nominees.

The process is that the commission deliberates and nominates that most qualified applicants taking into account gender, regional, ethnic diversity, 14 (1). Each member votes according to his/her personal assessment of each of the applicants’ qualifications 14 (2). Voting is complete after all the applicants have been considered and all members of the selection panel have voted, 14 (3). In order to be nominated an applicant shall be required to receive three or more affirmative votes 14 (5). It is plausible that this process could have yielded just one nominee for each of the positions.

The opposition and reservation towards the nominees seems to be based on peripheral tenuous arguments and not on the requirements of the law or merit, competence, qualifications or the ability of the nominees to reform the judiciary.

It is worth also noting, as the names have already been submitted to the principals that Section 16 of the First Schedule of the Judicial Service Act 2011, which deals with requests for additional names or reconsideration of nominees, is very specific in stating that the commission shall not reconsider its nominees after the names are submitted to the President except in cases of death incapacity or withdrawal of nominee (s).

May 14, 2011

0:15

What’s Happening at Kenya’s Borders?

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

There’s a saying that goes ‘good fences make good neighbours’. If the saying is true what do goings on at Kenya’s borders and borderlands say about the quality of our fences and neighbours they make?

On Tuesday this week protestors marched to parliament after more than 40 people from the Turkana community were killed and another 100 injured in attacks by Ethiopian militia. The massacre as, people have referred to the attack, took place in the town of Todonyang in Northern Kenya border with Ethiopia on the 2^nd of this month.

The protestors demanded urgent and expeditious deployment of the army to Turkana, to safeguard the security of local residents from recurring attacks by Ethiopian, Ugandan and South Sudanese militia. The incursion in Turkana is the latest what seems to be an increasing number of the incursions into Kenya by foreign troops, bandits or armed militia. In the last 20 months there have been no less then 10 incursions into Kenyan borders by foreign forces.

Currently:

The Ugandan Armed forces still occupy Migingo Island and last week they extended their occupation to Ugingo Island also on the Kenyan side of lake Victoria, the government is yet to respond to the latest incursion either diplomatically or otherwise.
In the last two years there have also been repeated reports about attacks by Uganda Peoples Defence Forces (UPDF) in parts of Pokot, particularly in Kacheliba and raids by Ugandan security forces in Sigulu in Budalang’i.In 2010 Somali militia linked to the terrorist group Al Shaabab made six incursions into Kenyan territory.
This year there have been incursions by Somali militia in the North Eastern Towns of Liboi, Moyale and Mandera. Earlier in the year MPs from North Eastern Province Aden Adualle (Dijui’s), MP Mohamed Hussein Ali (Mandera East) and Mohamed Affey (nominated) demanded the government act on the growing incursions in the North Eastern Region.

This week the Ministries of Internal Security, Foreign Affairs and the Ministry of State of Defence came under fire for failure to protect the borders. Saboti Member of Parliament Eugene Wamalmwa moved a motion for the House to set aside regular business to discuss the attacks as an issue of national importance. Several parliamentarians made strong remarks in support of the motion.

In putting the motion Saboti member of parliament declared parliamentarians were reminding the Government of its cardinal duty to protect the citizens of the country stating ‘Kenyans are beginning to ask: Really, are we in Kenya? Are we citizens of this country? Are we entitled to the protection of the Constitution of Kenya or should we be subjects of Uganda or Ethiopia?’

MP Nicholas Gumbo also criticized the government over its indifference over state of security at the borders stating that the ‘political leadership in this country that does not seem to care about our territorial integrity. We have 40 million Kenyans to protect. We must decide whether we are going to continue to allow our country to be a play-ground for all forms of militias, ragtag armies and formal armies in the neighbourhood.’ MP Martha Karua raised the issue of the 5 billion shillings in the recently passed supplementary budget for enhanced security and whether or not the additional funds are being used effectively to prevent incursions.

No doubt the issue of security particularly for a country like Kenya, which is surrounded by unstable neighbours, is an issue more complex than just making better fences or guarding the fences that we have better. Would there be fewer incursions if the borders were better policed? No doubt the people at the borders would like to see.

*It is worth noting that Professor George Saitoti jointly heads the Ministries of Foreign Affairs and Internal Security, after MP Moses Wetangula was suspended from his position as minister of Foreign Affairs. Questions should be asked whether it is possible for one minister to effectively run these two immensely huge and important dockets simultaneously, and what the implications of this are on both security and diplomacy?

May 11, 2011

3:37

Thoughts on the Chief Justice Interviews

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

8 out of the 10 applicants for Chief Justice, most of whom are sitting judges of the Court
of Appeal have been interviewed; Alnashir Visram, Lee Mutonga, Samuel Bosire, Riaga
Omollo, John Nyamu, Kiplana Rawal, Paul Kihara and Dr. Willy Mutunga,

The ongoing public interviewing of candidates for the position of Chief Justice represents
several firsts for the country in terms of competitive applications for the position as well as
the public scrutiny in the selection of a Chief Justice.

Under the old constitution the president selected and appointed the Chief Justice
in a closed door process with the public having little or no information on the selection
procedure. In this new dispensation the interviews for the next Chief Justice are being televised
live, giving any Kenyan with a television a metaphorical front row seat at each of the
candidates’ interviews.

Its been interesting to see candidates responses to questions on temperament, former
judgements, contact with litigants particularly powerful ones, past actions, wealth,
academic and professional records.

So far the interviews elicit two varying views. Some have described the interviews as
intimidating, humiliating and unfair to the candidates, while others have hailed the public
interview process as one that was way overdue.

The process has been rigorous and rightfully so. The Chief Justice, the highest ranking
member of judiciary and its head, will be in charge of reforming an institution in which
many Kenyans lost faith. No mean feat in country where most feel justice is not expedient
or is only for the powerful or rich. A judiciary with little popular legitimacy is spells trouble not only in terms of delivery
of justice day to day, but also in times of national crises; After the disputed presidential
elections in 2007 neither side had enough faith in the judiciary to seek judicial
intervention to decide the issue and currently less than half of the population trust the
judiciary to try the post election violence suspects.

Changing the public perception of the judiciary’s ability to deliver justice will require
a person who not only has the necessary technical expertise, but one who has expert
leadership and administrative skills as well as the highest levels of integrity. In a system
where there has been very little scrutiny of judges and where their conduct or decisions
are rarely questioned for fear of reprisal. Finding such a person can only be achieved
through a thorough and painstaking process in which there are bound to be difficult and
sometimes embarrassing questions about past actions, and judgements etc.

In my opinion the public interview process is good for accountability, transparency and
encouraging public participation in the search for the next Chief Justice and will certainly
go some way in restoring the publics confidence in the judiciary. In fact more holders of
high-ranking public offices should go through a similar process.

Are you following the interviews? What do you think?

May 07, 2011

12:41

Cabinet Reshuffle?

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The issue of the size of the country’s cabinet is a not a new one, and has drawn
protest from taxpayers since Grand coalition government established the 42
member cabinet in 2008. Kenya’s cabinet of the 40 ministers (less 3, the minister
for higher education, minister for industrialisation and minister for foreign affairs
are currently under suspension) is rivalled only by the cabinets of Pakistan that
has 55 ministers and Sri Lanka, which has 53.

Rumours about an impending cabinet shuffle have been rife many have hinted
that this could be a chance for the President and the Prime Ministers to cut down
Kenya’s bloated cabinet. However the Prime Minister’s public reluctance to cut
down the size of cabinet was evident in his speech in parliament in which he
stated that a smaller cabinet would not necessarily reduce the costs, tax paying
citizens may argue differently.

At its current size (salaries of 40 ministers, 80 assistant ministers + benefits,
allowances not to forgetting salaries and benefits of the President, the Vice
President and the Attorney General) the Cabinet costs the taxpayers upwards of
2 billion shilling per year.

Political analysts have linked the impending shuffle to 2012 politics and the
creation of new alliances and the maintenance of old ones, rather than a desire
to reduce the size of cabinet or the burden of cost of such a large cabinet to
Kenyans. If there a change in cabinet in the offing it would be worth while for the two
principals to keep the spirit of constitution which limits the Cabinet to a minimum
of 14 and a maximum of 22.

Technically the new style cabinet as envisioned by the constitution (i.e. a lean
cabinet, in which positions are no longer used to attract political support or
reward cronyism, as cabinet secretaries (ministers) are no longer drawn from
members of parliament and members will be required to relinquish their seats if
appointed to cabinet positions and in which appointment is no longer exclusively
done by the president) does not actually start till after the next election in 2012 its
never too early to start implementation especially with regard to numbers.

April 30, 2011

23:40

Report from the Media Roundtable

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By Mzalendo Reporter – Moreen Majiwa (@mmajiwa)

This was my second visit to the media roundtable on media reporting on the ICC at the Alliance Française. The panellists this round were John Mwendwa of K24, Alex Chamwada, Evelyn Kwamboka and Harun Ndubi the only non-journalist on the panel.

The media round tables are intended to generate debate around media coverage of various issues and enhance media accountability. In an environment in which accountability and transparency are like gold i.e. scarce, it is admirable that members of the media establishment would hold public forums that open them up to scrutiny of the sharp-eyed public.

While it is generally agreed that the media’s coverage of political issues has improved since the coverage of the 2006-2007 election campaigns, election chaos and ensuing post election violence it was evident at the roundtable that the media establishment still faces a storm of criticism over its informative yet sometimes mishandled coverage of the trial of the 6 ICC suspects.

From the roundtable the consensus seems to be that despite the improved quality of coverage of the ICC, the media has once again succumbed to the politics of the day, negative ethnicity, and is currently being manipulated as tool for 2012 campaigns.

The result – while media is doing well the performance of its duty to convey information to Kenyan’s on the ICC process, it is doing less well in its duty to propagate truth. The impact – media coverage of the International Criminal Court (ICC) trial is skewed heavily towards what the ICC means for different politicians, what it means for political careers, what it means for the future of political parties as opposed to what the ICC process means for justice, and its implications for a just prosperous Kenya.

It was however acknowledged it would be difficult to divorce the coverage of the ICC trial from politics given the context. 5 of the suspects are prominent political figures, 2 of the suspects are also members of the Cabinet, 3 are also members of parliament, and 2 of the six have declared their intention to run for president in 2012.

Another issue that was raised was the issue of ownership of the media – who owns the media outlets? What personal, professional and financial ties do media owners have the various persons in the political establishment? How does this impact direction of stories carried by the media, and affected the media’s ability to hold politicians to account.

It may be simple to point an accusatory finger at the media over its coverage of the ICC suspects, however, in this instance it would also be fair to acknowledge that the media does not have the easy option of covering just the ICC 6 san politics…instead it faces hard choices on whether and how to do this.

Several suggestions were proffered - contextualise coverage; to hold political actions, and actors to the values that Kenyans aspire to see in their leaders i.e. those enshrined in Chapter 10 of the constitution; constantly provide the historical background to how the 6 came to be before the ICC; and juxtapose politicised rhetoric about the ICC process with real facts. It still remains to be seen if status quo in media content will remain or if it will change.

April 24, 2011

15:05

ICC Process – Issues of Framing and Voice

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By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

As the din grows louder, and the lines between the issues of the ICC case, impending elections, halting implementation of the constitution increasingly become subjects used for political fodder we need to ask:

Who is framing the issue? How are they framing it? Whose voice is the loudest? And which voice are we listening to? And what is the reality?

With a well-orchestrated political campaign masking itself as a prayer rally two of the ICC suspects Deputy Prime Minister/Finance Minister Uhuru Kenyatta and North Eldoret MP William Ruto have managed to capture the issue of the ICC case and frame it to their advantage.

The almost full day, non-stop press coverage of the political rally by most of the TV stations and newspapers has helped this process of capture along.

Yes the coverage of the Uhuru Park rally has been juxtaposed with the stories of still to be resettled IDPs, but if voice is measured in amount of air coverage, or in column inches whose voice is louder, the IDPs or the MPs who attended the Uhuru Park rally? While the suspects remain innocent till proven guilty, the record does need to be set straight about how those at the rally framed the issues.

Issue 1: The return of the suspects was framed as a return of conquering heroes. I leave the definition of hero up to you but the truth is there was nothing to conquer. There was no danger of the suspects being arrested, this around at least. The suspects’ visit to the ICC was in response to a summons to have the charges formally read to them and for the suspects to formally identify themselves to the court.

Issue 2: The ICC and the court process are being likened to the colonial process with constant reference to the judges as ‘wale wazungu’. However the ICC process is nothing like colonization. Kenya is a voluntary signatory to the ICC statute, a statute that was domesticated in 2008 when parliament enacted the International Crimes Act Cap 16 of 2008. The freely enacted statute both binds Kenya to the Rome Statute and criminalises wilful attempts to obstruct justice of the ICC (Section 5 and 10). Ironically several of the parliamentarians on the podium at the Uhuru Park were also part of the Parliament at the time when the Rome Statute was made domestic law.

Issue 3: Reconciliation: Some of the MPs at the rally adopted a conciliatory tone. However as with everything that is said the true measure of reconciliation is the gap between the rhetoric and the action. Between 2007/2008 when the post election violence, how many IDPs have been resettled? How many are still in camps? How many refugees does Kenya have residing in Uganda? Have IDPs been able to return their homes?

I read somewhere that Rwanda confines its political campaigns to one month before the elections as politicking in Kenya seems to be taking an increasingly destructive tone maybe we should consider doing the same.

April 23, 2011

23:36

Media Roundtable “Ocampo 6 Coverage” – April 26th

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April 19, 2011

23:20

Hansard Highlights Week of February 13th, 2011

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Nominated MP Rachel Shebesh asked a crucial question given the disparity between the rhetoric how can
the women of Kenya take the government with regards to their commitment to the inclusion of
women?

PRIME MINISTERIAL STATEMENT: IMPLEMENTATION OF THE NEW
CONSTITUTION: REALIZING DEVOLUTION

The Prime Minister (Mr. Raila): Mr. Deputy Speaker, Sir, I would like to focus particularly on
devolution. I would like to make a brief statement on an area that I strongly feel that our country
needs to start giving some serious thought to as we prepare to implement priority areas of our
new Constitution.

One of the highlights of our new Constitution is the provision for the devolved system of
Government. The creation of the devolved Government is one of the far-reaching reforms in
our governance structure which if efficiently implemented, has the potential to enhance Kenya’s
stability and development.

Mr. Deputy Speaker, Sir, the reforms envisaged under devolution will have to be implemented in
a manner that is consistent and coordinated across the national Government. The transition needs
to be properly planned to avoid any disruption in the provision of essential Government services.
There are issues we need to start exercising our minds about if we are to make devolution a
success.

One of the requirements of the devolved Government is that one third of the seats in the County
Assembly and one third of the positions in the County Government will have to be occupied by
women. That is the law.

As I travel across the country, I get the feeling that this message has not sunk down enough and
very little sensitization is going on. Women have for long been relegated to the role of observers
in a political game dominated by men. Kenya’s politics has over the time become very masculine
and quite physical. It has also become a very expensive affair. Because of these two features, our
women have largely been locked out of politics.

Women supported this Constitution so wholeheartedly because it marked the beginning of their
long sought liberation. It guarantees that one third of all elected or appointed posts in Government
go to women. It binds political parties to pay special attention to gender parity, an obvious
departure from what has been the norm. Mr. Deputy Speaker, Sir, I want to make an appeal for
due attention to be paid to the provisions on women.

I feel the time has come for our institutions and our international supporters to embark on a
deliberate campaign of preparing women for the roles they have to take up, particularly in politics
in the coming elections. It is my belief that women’s entry into politics, with the desired numbers,
will see them make a mark in other areas of our economy and public life.

Mrs. Shebesh: Mr. Deputy Speaker, Sir, the Prime Minister has clearly stated that the provision
for one-third representation of either gender is now a Constitutional issue and that in the
process of implementation of the New Constitution; realizing devolution, this is an area that the
Government is taking very seriously.

Mr. Deputy Speaker, Sir, I am holding a petition that was given to the Speaker by 19 women
organizations over the recent appointments. How will Kenyan women take the Government
seriously when it is just giving lip service to the one-third affirmative action policy but not doing
it in practice? We are tired of lip service. Could the Prime Minister tell us concretely, in line
with the current appointments and continuous appointments that happen, where women must
always make noise— This is now a Constitutional matter. How can the women of Kenya take this
Government seriously on this issue?

2. The government has given is 1.5 billion shillings to constituencies and another 300 million
to financial institutions for the Youth Enterprise Development Fund (YEDF) in Tharaka
constituency it turns youth were being asked to give money before they could access the funds
read the Assistant Minister for Youth Affairs and Sports response to this. It would be interesting
to know the experience of youth trying to access the YEDF in other constituencies.

DISBURSEMENT OF YEDF MONEY IN THARAKA CONSTITUENCY

Mr. Mwiru: asked the Minister of Sports and Youth Affairs:-
(a) How much funds have been disbursed to Tharaka by the Youth Enterprise Development
Fund (YEDF) through the Constituency Youth Enterprise Scheme (C-YES) and financial
institutions (FIs); and,
(b) Whether he could table a list of financial institutions involved in the disbursement of
funds as well as the list of beneficiaries, whether individual or group(s), since inception
of the Fund.

The Assistant Minister for Youth Affairs and Sports (Ms. Ndeti): (a) The YEDF has disbursed
a total of Kshs9.8 million to Tharaka. Out of that amount, Kshs2 million has been disbursed
through the Constituency Youth Enterprise Scheme (C-YES) and Kshs7.8 million has been
disbursed through the financial institutions. The YEDF has partnered with three financial
intermediaries that are present in Tharaka. They are South Imenti Credit Company, Business
Initiatives and Management Assistance Service (BIMAS) and Kenya Women Finance Trust.

Mr. Mwiru: Mr. Speaker, Sir, in 2009, one of the financial institutions mentioned here, the
South Imenti Credit Company, started collecting money in form of savings from the youth of that
area. That exercise was supposed to encourage the youth to get loans from them. I would like to
know whether it is a Government policy for the youth to pay Government institutions before they
secure a loan.

Ms. Ndeti: Mr. Speaker, Sir, money from YEDF is supposed to be given to the youth to
enable them start their own businesses. We are trying to help the youth. So, I do not see how
an institution would ask the youth to save money so that they can use the money that the
Government has set aside for them. I assure the hon. Member, who mentioned the matter to me
last week, that we are looking into it as a Ministry. I want to give him comfort that this time
round, we have given out Kshs1.5 billion to constituencies and only Kshs300 million to banks
and other financial intermediaries.

Mr. Chepkitony: Thank you Mr. Speaker, Sir. I would like the Assistant Minister to tell this
House how much interest is charged when money is disbursed through the CYES and financial
intermediaries. How much do those two institutions charge as interest?

Ms. Ndeti: Mr. Speaker, Sir, the banks are supposed to charge a minimal interest of about 8
per cent. The Fund gives loans to these intermediaries at 1 per cent interest rate. They use the
7 per cent difference to cover administration costs and mitigate losses that may arise from the
clientele, which are perceived as a risk. The intermediary should shoulder 100 per cent risk of this
component and can lead up to Kshs1 million.

Mr. Langat: Mr. Speaker, Sir, this Fund is meant to help the youth in our constituencies.

Unfortunately, there is no sensitization of the youth in the constituencies on how these funds can
be obtained. Could the Assistant Minister tell us what they have been doing to sensitize the youth
on the existence of this Fund?

Ms. Ndeti: Mr. Speaker, Sir, we have already employed two youths from every constituency
to work with the youth on the Youth Enterprise Development Fund. From the end of last year,
we have been going around the country, county by county, with the Minister and the Assistant
Minister, to sensitize the youth on the importance of the Youth Enterprise Development Fund. I
can assure you we are on the ground and we are giving our employees motorbikes, so that they
can access all the areas in their constituencies.

Mr. Wambugu: Mr. Speaker, Sir, indeed, if the Youth Enterprise Development
Fund is used properly, it can help alleviate poverty in the rural areas. Who comprises the
committee that sit at the constituency and who nominates the members to those committees?
What part is the Member of Parliament supposed to play in the running of this Fund?

Ms. Ndeti: Mr. Speaker, Sir, the Member of Parliament should be the patron. The
Fund is under the District Youth Officers. If it is within a council, the Town Clerk runs the Fund.
I am prepared to provide a list of the names of the members of the committees.

Dr. Kones: Mr. Speaker, Sir, the Assistant Minister has said that the Ministry has employed
some youths. I know that these youths were taken as interns on contract basis. Does the Ministry
intend to employ them on permanent basis?

Ms. Ndeti: Mr. Speaker, Sir, we are trying to create employment for the youth. It is better for
us to start taking them as interns while looking at the long-term when we can employ them
on permanent basis. We have created more than 420 jobs for the youth of this country in our
Ministry.

Mr. Mwiru: Mr. Speaker, Sir, we have a scenario where the youth are paying money to these
institutions that I have mentioned. Will it be possible for the Ministry to ask these institutions to
refund this money to the youth? They have suffered so much and they are not getting the loans.

Ms. Ndeti: Mr. Speaker, Sir, we are going to look into the Member’s complaints against these
financial institutions. I want to assure him that we are there for the youth and we will not allow
anyone to take money from the youth.

April 18, 2011

9:30

Salaries and Remuneration Bill

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

There’s a joke that goes that goes the only time Parliament is ever full is when the
members are voting on their salaries. Whether or not the joke has any basis in truth it may
soon lose its relevance.

Section 230(1) of the constitution creates a Salaries and Remuneration Commission.
Section 25 of the transitional and consequential clauses in 6th Schedule of Constitution
requires that the Commission be constituted within nine months of the constitution’s
promulgation i.e. May 27th 2011.

So far the Salaries and Remuneration Bill, that establishes the Commission has been
drafted and is ready for debate by the National Assembly if the Bill sails through
parliament in the next one and half months, the Salaries and Remuneration Commission
may be the first constitutional commission established with the mandated deadline.

The Commission will be responsible for determining the salaries of the President,
Cabinet Ministers, members of parliament, members of county assemblies, county
governors, members of commissions and principal secretaries. The commission will
also establish the salaries of judges and magistrates, which will prevent executive
or Parliament from undermining judges by threatening to reduce their salaries. The
Commission will also give guidance on the remuneration of other public officials and
employees in all government departments.

Part of the Commission’s functions will be to inquire into and determine the salaries and
remuneration to be paid out of public funds to State officers and other public officers as
well as keep under review all matters relating to the salaries and remuneration of public
officers. The Commission will also be required to gives periodical reports of its activities
as well as statistical information relevant to its functions. Hopefully this will be the
beginning of increased transparency and accountability in with regards to salaries and
remuneration paid out of taxpayers’ money.

Though the Bill has not been yet enacted, nor the Commission constituted both represent
answers to the public’s demand for an independent institution that is responsible for
determining salaries of State officers; particularly for MPs who have
previously been in charge determining their own salaries and increments.

April 10, 2011

22:30

Hansard Highlights week 6th February 2011

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I. The Minister of State for Special Programmes Esther Murugi responds to allegations that she claimed people living with HIV should be incarcerated.

GOVERNMENT POLICY ON HIV/AIDS VICTIMS

Hon. Members will recall that HIV/AIDS was declared a national disaster in November 1989 by the former President of Kenya. The Government policy on HIV/AIDS is clear and it is governed by two key policy documents; that is, the Sessional Paper No.4 of 1997 on AIDS in Kenya; and HIV/AIDS Prevention and Control Act, 2006. Chapter 2, Section

2(7) of the Sessional Paper states:

“With respect to human rights, all forms of discrimination against people with HIV/AIDS is outlawed as enshrined in the Constitution.”

Similarly, Section 30(3) of the HIV/AIDS Prevention and Control Act states that

“No person shall be quarantined, placed in isolation, refused lawful entry, or deported from Kenya on the grounds of the person’s actual, perceived or suspected HIV status.”

Mr. Deputy Speaker, Sir, the workshop organized for hon. Members on 28^th January 2011, was called to update hon. Members on the progress made and challenges in the national response to HIV/AIDS, including the third Kenya National AIDS Strategic Plan amongst other objectives. It was during the participatory discussions and contributions on how to overcome the challenges that I sought to provide examples of other countries that have tried to control the epidemic. I gave the infamous example of how Cuba, in 1988, after a massive testing campaign, incarcerated people living with HIV. Cuba has always had a very low prevalence and very low new infections and, in that way, it is very different from Kenya. They withdrew the policy of incarceration in 1993.

Other countries that have recorded tremendous success include Rwanda, whose prevalence rates have reduced from a peak of 11per cent in 1990 to 2.8 percent in the recent times. In those countries, universal access and country ownership drive the HIV response, thus the low HIV incidences and low AIDS related deaths. I raised the issue of Cuba in order to foster discussion and debate and never intended to imply that Kenya should start a strategy of incarceration. That would be contrary to many human rights conventions that Kenya has signed and, ultimately, such an approach will not be successful in controlling the epidemic.

Controlling an epidemic of that magnitude, where 1.5 million people are living with HIV, requires a massive scale up of people accessing testing, counseling, disclosing to their sexual partners and accessing a range of prevention services. Currently, only 57 per cent of adults have been tested and that is a cause for concern. While I continue to support the view that we look at other countries’ approaches and learn from them in order to rid Kenya of HIV, protecting and promoting human rights will encourage people to come forward and access services and reduce the stigma that is associated with the epidemic. In conclusion, I will urge all Kenyans who are sexually active to be tested for HIV/AIDS in order to plan their lives, learn the dos and don’ts and what to do whether they are negative or positive.

II. Most of us are going to need some sort of asset finance if we intend to own a home, however the double digit bank lending rates are turning some us into renters for life, so its nice to know that the government is discussing some sort of caps on interest rates on loans.

MEASURES TO RECTIFY SKEWED LENDING RATES BY BANKS

Mr. Kombo asked the Deputy Prime Minister and Minister for Finance: -

(a) If he is aware that commercial banks are taking deposits at less than 2 percent and lending at over 12 per cent,

(b) If he is also aware that the practice is discouraging both depositors and borrowers and hence hampering economic development and, if so, what measures the Government will take to ensure that the above situation is rectified; and

(c) If the Minister could also explain why efforts by Central Bank of Kenya (CBK) to persuade commercial banks to reduce their lending rates has not been successful

The Assistant Minister, Office of the Deputy Prime Minister and Ministry of

Local Government (Mr. Nguyai): Mr. Speaker, Sir, on behalf of the Deputy Prime Minister and Minister for Finance, I beg to reply.

(a) I am aware that as at October 2010, commercial banks were lending an average weighted rate of interest of 13.85 which is over 12 per cent. The average weighted rate of interest for all saving products over the same period was 3.58 per cent and 1.58 per cent higher than the 2 per cent. I am aware that the lower interest rates on savings and the higher interest rates on lending are likely to discourage savings and borrowings respectively. However, I wish to point out that the country has realized tremendous growth. Deposits in the past two years and this growth have contributed to the putting down of pressure on deposit rates, particularly as the demand for loans were low due to the sluggish growth of the economy. With the economic recovery expected this year and in the mid-term, we anticipate that deposit rates will begin to rise as banks compete for resources to lend. Indeed, this development should reduce the spread between the lending and deposit rates.

(b) Regarding the lending rates, as our fiscal consolidation continues to gather pace, we anticipate that the interest on the Treasury Bills will remain subdued. This will encourage banks to compete more vigorously with each other for lending to the increasingly vibrant private sector. The increased competition should lead to lower lending rates, which combined with the envisaged higher deposit rates should further narrow the interest rate spread.

(c) Indeed, some banks lowered the rates in response to easing the monetary policy of the CBK although we would have preferred to see sharper reductions. However, it is important to emphasize that there are structural impediments that prevent banks from reducing rates significantly including, for example, the long time it takes for banks to realize collateral. We are taking steps to address the impediment and we believe this will result in lowering the banks’ operating costs and facilitate an extension to the savings to the consumers in the form of lower lending rates.

Mr. Kombo: wanted to find out from the Assistant Minister what he means when he says that persuasion by the CBK has yielded some results though not satisfactory. There was a time when CBK had set ceilings for the commercial banks to lend. Now, if they are not being persuaded, can the CBK or the Government consider re-introducing the ceilings above which the commercial banks cannot impose interest rates on borrowers? If they do not obey, there must be stiff penalties attached to that.

April 09, 2011

0:14

NCIC report on ethnicity in the Civil Service

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By Mzalendo Contributor Moreen Majiwa (@mmajiwa)

The statistics in the latest report by the National Cohesion and Integration Commission on ethnicity in the civil services are alarming. According to the newspaper reports on the survey:

‘The Kikuyu, Kalenjin, Luhya, Kamba and Luo account for 70% of all service jobs. Of all government workers 22.3% are Kikuyu, 16.7% are Kalenjin, 11.3% are Luyha, 9.7% are Kamba, 9.0% are Luo and 5.8% are Kisii, 20 tribes have less than 1% representation in the civil service.” The report further breaks down the ethnic composition across government ministries and departments.

I wonder what a survey of the private sector would like? Tribalism is so pervasive that it may warrant specific legislation and statutes dedicated to it. The National Cohesion and Integration Act is one such legislation but to be quite honest despite reports from the National Cohesion and Integration Commission, there has been little implementation or enforcement of its provisions.

Though the Commission’s report on ethnicity in the civil service is already drawing criticism, the report is useful as it findings raise questions about, equal opportunities, openness and transparency in recruitment practices, competency, affirmative action policies for marginalised communities, the need for merit based appointments and recruitments. After all the constitution does require fair competition and merit as the basis of appointments and promotions in the civil service (Article 232 (1) (g). It also requires representation of Kenya’s diverse communities (Article 232 (1) (h), and provision of equal opportunities for appointment, training and advancement, at all levels of the public service, of men and women, members of all ethnic groups and persons with disabilities.

Now that the issue has been flagged and made public it is crucial that the information be used in a constructive and not divisive manner.

And in other news…

Director of Public Prosecutions update: The government has received now 30 applications, for the previously unapplied for, position of Director of Public Prosecutions, 5 of the applicants are women it will interesting to watch and see if a woman get picked for any of the three judicial positions, Chief Justice, DPP, or AG. Surprisingly or not, presidential nominee for the position of DDP Kioko Kilokumi is not among the 30 applicants.

April 07, 2011

9:31

Scorecard on Constitutional Implementation

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa

It’s 6 months from the day that the nation voted for the new constitution i.e. August 4th 2010. It seems an apt time to review the overall progress made on the constitution’s implementation and see how we as a country are getting on with the
business of turning the constitutional provisions into a reality.

So far the National Assembly has managed to establish three constitutional commissions
required by the constitution:

The Constitutional Implementation Commission
The Judicial Service Commission and
The Revenue Allocation Commission

However there is a caveat, the Constitutional Implementation Commission and the Revenue Allocation were both established six months later then scheduled. The Judicial Service Commission is yet to be fully constituted seeing as the yet to be appointed Chief Justice is an integral part of the commission.

On Tuesday the cabinet approved the Independent Electoral and Boundaries Bill – the bill establishes the new electoral and boundaries body responsible for elections and for demarcating constituency and ward boundaries. Though it is worth noting that
the country has been without a boundaries commission since the interim independent boundaries commission was disbanded late last year. The Cabinet also approved the Salaries and Remuneration Commission Bill ,both bills will now be forwarded to
parliament for debate.

The deadline for filling in the position of the Chief Justice was the end of February, this year i.e. six months after the date the constitution came into force. The deadline has passed, however the process of recruiting for position is ongoing.

As far as passing bills required to operationalise the constitution, the National Assemblyhas passed 2 out of the out the 16 bills required the Judicial Service Bill and the Vetting of Magistrates Bill, which are now waiting Presidential assent.

Recently the Constitution Implementation Commission head, Charles Nyachae, expressed concern over the fact that parliament is yet to discuss a single Bill for the implementation since the President opened a special session on 22nd March 2011.

Of course implementation of the constitution is no easy task – 6 months on how would score parliament on implementation of the constitution, pass, average or fail?

April 06, 2011

2:02

Mzalendo Vox Pop: Benji asks “What More Can We Do?

» ‎ Mzalendo.com

Guest blog by Benji

Something I witnessed a few weeks ago made me think hard about the quality of the average Kenyan’s life even as politicians squabble and waste valuable resources.

Driving along Mombasa road on a Saturday evening, I encountered gridlock traffic and I thought to myself there must be a horrible accident up ahead. 15 minutes later, I approached a corpse in the middle of the road whose arm had been severed off. The arm lay on the tarmac 10 metres from the body. It was a gut wrenching sight. A lone traffic cop assisted by what I thought to be a medic, helped drag the corpse to the side of the road. Our officers are ill-equipped and ill-trained..one of the men that helped drag the body, immediately found a stainless steel lamp post whence he began to wipe his hands while bending over.
Folks, this in a country where Kshs 270 billion is squandered every year through wastage and corruption. The new constitution we just passed, is not supposed to be just a pretty document -it is the envy of many countries in the region. It provides us fundamental rights and ideals but most Kenyans are living a life of misery and neglect and scrounging like rats. Some examples:

A few months ago a traffic police officer manning Mombasa road and deployed to manage traffic while President Kibaki was travelling, was knocked down by a speeding vehicle and died on the spot. The officer lay on the side of the road in full uniform for several hours. Nothing much has been said about this incident but it is our hope that the administration quietly went back to condole a family whose breadwinner fell in the line of duty and offered support. That is our hope and we will be writing a letter to State House and relevant authorities seeking some answers.
Did you all see the story on Mathari Hospital by David McKenzie, where a patient was held in the same room as a corpse? Apparently, patients on receiving treatment are held while they scramble around to raise hospital fees from relatives and friends. The CNN crew investigating this story was locked up for 3 hours, illegally detained and it took phone calls to the Prime Minister’s office to secure their release.

This is the Kenya we’re living in ladies and gentlemen, where the government does not see it fit to even subsidize mental health services but is all too willing to spend tax payer money buying space in the dailies to defend ICC suspects, fuelling a jet for Kalonzo to criss cross the continent and spend the remainder of the time hurling insults and epithets at each other.

What more can we do?

April 01, 2011

19:59

When Inflammatory Statements are Made…

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa

After I saw this [youtu.be] clip of the statements made by the Deputy Prime Minister and Minister for Finance Uhuru Kenyatta at a rally in Murang’a.

I frantically looked for the translation, the tag line on the tweet asked “has Mzalendo Kibunja seen this?” so I knew that it may possibly fall within the ambit of hate speech. I found the translation as well as denouncement of the remarks here.

The denouncement, is full correct in calling the statements made by the Deputy Prime Minster/Minister of Finance irresponsible, inflammatory, inter-ethnically and intra-ethnically divisive, dangerous and detrimental to the cohesion that Kenyans have been working towards since 2007.

Yet, despite the inflammatory nature of the Deputy Prime Minister’s remarks the National Cohesion and Integration Commission is yet to react, and the politicians that were present at the rally are yet to say anything about his statements. All in all there has been has been very little action.

The lack of action reminds me of a column in the Sunday Nation where the writer argued, ‘The leaders of the bigger ethnic communities simply will not seriously fight tribalism because it is through the voting power of the ethnic mass – not through ideology – that an elite individuals hopes to enter Parliament and State House.”

A politician is he who always inflates his tribe’s ego while, at the same time, keeping that tribe profoundly ignorant of its real needs. It is thus the for the purpose of the vote – not of ethnic development – that he manages to rally the ‘tribe’ behind him.

So the leader and elite of one big community see the leader and elite of another big ‘tribe’ as the enemy. Hence the necessity for the ethnic leader to encourage his deification by the ethnic mass if he is to ensure the ethnic vote. Thus the Kenyan liberator must first liberate every ethnic mass from the bewitching demagoguery of its elite’

Thankfully the voting public has the power through their vote to show disapproval for statements made let us it.

But we still ask shouldn’t Mzalendo Kibunja be responding to this rather than chasing his tail on social media sites?

1:06

[nt]

» ‎ Mzalendo.com

By Moreen Majiwa – Mzalendo Contributor

21 days after the deadline for the appointment of the Chief Justice, the Judicial Service Commission is finally getting down to the task of short-listing candidates for the position.

Despite the delays, missed deadlines, and the controversy surrounding the nominations/appointments to the position of Chief Justice the moment remains historic as never in the country’s history has the position for Chief Justice or Deputy Chief Justice been filled through a competitive process.

According to the Interim Chairperson of the Judicial Service Commission Professor Christine Mango the commission has received 24 applications for the position of Chief Justice and Deputy Chief Justice. The commission will be meeting next week to review the applications and set a date for the interviews.

Apart from the constitutional and statutory qualifications of the candidates i.e. “a high moral character, integrity and impartiality,” the requisite legal qualification and 15 years experience. As well as demonstrated high degree of professional competence, communication skills, fairness, good temperament, making good judgements in both legal and life experience and commitment to public and community service.

There are few more interesting things to look out for in the candidates, the first being financial propriety. The advertisement for the positions of Chief Justice and their deputy required that the applicants make a declaration of income and liabilities at the time of making the application and that those who are in Government in employment i.e. applicants who are already part of the judiciary, attach copies of returns of declaration of income and liabilities and for those in private practice attach income tax returns for the last three years.’

The advertisement for the position further required that the bio data submitted by candidates as part of the application process reveal any involvement in political activity including any financial contribution to any political party.

These requirements are there to ensure that the persons who get these jobs are beyond reproach and seen to be so. The requirements will ensure judicial independence.

After the selection process those shortlisted will be required to appear for an oral interview, there’s no word on whether or not the oral part of the interview will be public, we hope so?

In the meantime the government has announced that no applications have been received for the position of the Director of Public Prosecutions…one wonders why that is?

March 28, 2011

23:51

Hansard Highlights Week of February 1 2011

» ‎ Mzalendo.com

This is a new regular feature where we will review past editions of the Hansard to highlight debates that are of particular national importance (and to show that we know that MPs do work from time to time).

I. We all know that KACC has forwarded several cases to the AG’s office for prosecution. But exactly how many files were delivered to the AG and when does he plan to prosecute them?

DETAILS OF CORRUPTION CASES FORWARDED TO ATTORNEY-GENERAL BY KACC

Mr. Kombo: Mr. Speaker, Sir, I beg to ask the Attorney-General the following Question by Private Notice.

(a) Could the Attorney-General provide details of corruption cases that the Kenya Anti-Corruption Commission (KACC) has investigated and forwarded to the Attorney- General for direction since the appointment of the current Director?

(b) How many of these cases has the Attorney-General approved for prosecution, rejected and/or returned to the Commission and why?

The Attorney-General (Mr. Wako): Mr. Speaker, Sir, I beg to reply. Since the appointment of the current Director of the KACC in July 2010, a total of 53 files were forwarded to the Attorney-General for direction.

Mr. Kombo: Mr. Speaker, Sir, I had a chance to peruse through the documents and to my pleasant surprise— In the past there has been a ping pong game between the KACC and the Attorney-General. They have been accusing each other of not doing this and that. However, it would appear that since Prof. Lumumba became the Director of KACC, he has been agreeing on many cases with the Attorney-General. So, with regard to the Report that we have, they have agreed almost 100 per cent.

Mr. Njuguna: Mr. Speaker, Sir, emanating from the report given by the Attorney- General, you will note that about 53 cases were referred to his office for prosecution. Could he inform this House what deliberate steps he is taking to make sure that all these cases will be prosecuted even before his retirement this year?

Mr. Wako: Mr. Speaker, Sir, I hope the Member is asking for a further extension before I retire, so that I can deal with all these cases. The fact of the matter is that one cannot prosecute all the cases by the time he retires. I am the last Attorney-General who is also the prosecutor. Since 27th August, 2010, I am wearing two huts, namely, for the Attorney-General and the Director of Public Prosecutions. That is why I recently called for the appointment of the Director of Public Prosecutions, so that there is a proper appointment under the Constitution of an Attorney-General who will only be the principal legal advisor to the Government. I am sure that the Director of Public Prosecutions, who will be appointed, will continue the good work that the Chief Public Prosecutor, Tobiko Keriako, has done. I can inform this House that I was with the Committee of Experts and as soon as I realized that the Director of Public Prosecutions will become a constitutional office, we immediately began re-organizing that office. It is now really organized just awaiting the appointment. I am sure we will continue with the prosecution of corruption cases with rigor and gusto.

Mr. Kombo: Mr. Speaker, Sir, to successfully prosecute corruption cases is not an easy job. Part of the problem that we have had is that the KACC investigates while the office of the Attorney-General prosecutes. The people who have all the facts are at the KACC. Now that the Attorney-General is actually retiring, could he consider giving more powers to the Commission, so that it can prosecute? Prosecutorial powers should be given to the Commission because it is the one that investigates cases and is the only one that can best prosecute.

Mr. Wako: Mr. Speaker, Sir, my opinion on this matter is that now that we are going to have a Director of Public Prosecutions, a constitutional office, devoted to nothing else but prosecutions, he should continue to prosecute corruption cases…it is too dangerous for one institution to be charged with investigative powers plus prosecutorial powers. This applies more to these type of cases. Unless you have checks and balances between the investigator and the prosecutor, some people will be taken to court with very little evidence just because the investigator has the power to prosecute. If the powers are separate, the investigator will be focused on obtaining sufficient evidence to allow that other person to come to the same conclusion and prosecute. So, in the interest of justice, I am still of the opinion that in corruption and serious criminal cases, the distinction between the investigator and the prosecutor should be there. What is important is that the two should work in tandem. While respecting their independent functions, they should work in unison.

II. Now that the ‘shuttle diplomacy’ is seems to be crumbling before our eyes it’s a good time to assess exactly how much money has been spent on it and maybe time for proponents of it to cut their losses, or rather the tax payers losses?

GOVERNMENT POSITION ON VICE-PRESIDENT’S “SHUTTLE DIPLOMACY”

Dr. Khalwale: Mr. Speaker, Sir, I beg to ask the Minister for Foreign Affairs the following Question by Private Notice.

(a) Could the Minister clarify whether the mission by the Vice-President to lobby African States to support Kenya’s bid to pull out of the International Criminal Court (ICC) reflects the official Government position on the issue?

(b) How much money has the Government spent on the Vice-President’s “shuttle diplomacy” so far?

The Assistant Minister for Foreign Affairs (Mr. Onyonka): Mr. Speaker, Sir, I beg to reply.I wish to inform this House that the mission that was undertaken by His Excellency the Vice-President and Minister for Home Affairs of “shuttle diplomacy” across the African Continent was not with an objective of lobbying the African countries to support the deferral of the International Criminal Court (ICC) intended prosecutions for one year. The “shuttle diplomacy” was with a view of bringing the process of justice for the election crimes back home, so that the suspects can be tried locally since we believe that even the ICC Tribunal appreciates the fact that a local tribunal is better than taking our people to be tried in Europe. The ICC Prosecutor, Mr. Luis Moreno Ocampo, on 17th December, 2010, named six suspects whom he was requesting the ICC to issue summons to secure their attendance at the court. However, the Kenyan Government is not a failed State.

With the passage of our new Constitution, the Government felt that there was a necessary need for us to negotiate and have a moral position whereby the African Union, the Inter- Governmental Authority on Development (IGAD) and the East African Community would have to support our country to solve the problem of the post-election violence peacefully by providing justice and at the same time making sure that we have reconciliation in our country. The grant of a deferral would, therefore, allow for sufficient time to revamp the key judicial institutions and other Government infrastructure.

Further, prosecution of post-election crimes at home would facilitate the trial of all post-election violence suspects, and not just those who are bearing the highest responsibility. Conducting those trials locally would send a very strong message both internally and externally, so that Kenya would no longer accept impunity. So, even when the Vice-President and Minister for Home Affairs was doing the “shuttle diplomacy” within African, his agenda was not to demand that Kenya pulls out of the ICC. The agenda was to ask that the ICC allows us to look for a local mechanism, which would then make it possible for all the victims and all the perpetrators of the crime to face each other.

The information I have from the Ministry of Foreign Affairs is that the amount of money that the Kenya Government spent for the “shuttle diplomacy” within the last two weeks is Kshs3,659,728. This amount does not include the small amount of money that the Vice-President and Minister for Home Affairs and the officers he carried along with him have spent from his Ministry. This is a budget which has been given to me by the Ministry of Foreign Affairs, which includes expenses incurred by officers from the Ministry of Foreign Affairs, who were with the Vice-President and Minister for Home Affairs.

Mr. Olago: On a point of order, Mr. Speaker, Sir. Arising from hon. Khalwale’s point of order and the answer given by the Assistant Minister, it is clear that the answer to part “b” of the Question is not complete in the sense that it does not encompass the amount of money that the Government has spent. He seems to be concentrating on what his Ministry has spent.

Mr. Onyonka: Mr. Speaker, Sir, unfortunately, the answer is “yes”, because we were unable to get the Accounting Officer in the Office of the Vice-President and Ministry of Home Affairs to give us the full amount. So, the figure I have given is what the Ministry of Foreign Affairs has spent.

Dr. Khalwale: Mr. Speaker, Sir, given that the Assistant Minister has admitted that his answer is incomplete, could I request the Chair that we give him until Tuesday, so that we can get a comprehensive answer to this very important issue touching on accountability? The reason for raising this point of order is that if we are going to accept only the expenditure that was incurred by the Ministry of Foreign Affairs, the taxpayer will not know how much was spent from the Office of the Vice-President and Ministry of Home Affairs, how much was spent from the Office of the President and how much was spent from Parliament.The Vice-President and Minister for Home Affairs was having, in some of those trips of his, accompaniments of up to ten people. Those people did not come from the Office of the Vice-President and Ministry of Home Affairs, and the Office of the President, alone. Some of them come from Parliament. Therefore, the taxpayer would like to know about the expenses incurred by those other persons who accompanied him.

III. The debate below highlights the need get the real statistics on how many extra judicial killings have taken place since the promulgation of the constitution?

STATISTICS ON POLICE SHOOTINGS SINCE AUGUST 2010

Ms. Karua asked the Minister of State for Provincial Administration and Internal Security:-

(a) Whether he could state how many people have been shot dead by police in the country since 4th August, 2010, giving the names and places they were shot and the circumstances;

(b) Whether he could also provide the identities of the officers involved and indicate the disciplinary action taken against them; and,

The Assistant Minister, Ministry of State for Provincial Administration and Internal Security (Mr. Ojode): Mr. Speaker, Sir, as you are aware, I answered this Question yesterday. But we agreed that the format should be changed to relate to what was asked by my friend, hon. Karua.

Mr. Speaker, Sir, I beg to reply. Since August 2010, 18 people have been shot dead by police officers. The following are the victims and circumstances under which they were shot dead.

Ms. Karua: On a point of order, Mr. Speaker, Sir. Have you noticed that the Assistant Minister has been answering his own question and not my Question? In part (a) of my Question, I have asked the Assistant Minister to tell us how many people have been shot dead by police officers in the country since 4th August, 2010, when we voted in the new Constitution…He has given me the names of the people who have been shot dead in circumstances that pointed to criminal intent on part of the police. So, he has modified my Question because he knows that police officers have shot dead more than 100 people since then. He has modified the Question, so that there can just be below 20 people.

Mr. Ojode: Mr. Speaker, Sir, I have given a very good answer to the Question. I cannot give answers on which I cannot make any substantiation. Apparently, from August last year to date, my police officers have not killed as many as 100 suspects as is being alleged by the Questioner.

Mr. Ojode: Mr. Speaker, Sir, indeed, the story is true. Those of us who have not experienced those kinds of carjacking and criminal activities are the people who are not supporting the services of the police. I would like to urge my colleagues: Let us not demoralize police officers. Let us all support the work of police officers. The reason why I am saying that is because police officers are being bashed every now and then. The day you will be carjacked is when you will realize that police officers are doing a good job. But I will not hesitate to tell the police to do their work. I would like to request my colleagues that, as the police officers are doing their job, let us support them. Let us not demoralize them!

The other thing is that we are undertaking reforms. Yes, we will get rid of trigger happy police officers to clean the Police Force. We want a Police Force to mind about the welfare of innocent Kenyans. Otherwise, my appeal is that let us support the police officers to do their work.

March 26, 2011

18:47

NCIC Monitoring Social Media for Hate Speech

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

On Thursday Dr. Mzalendo Kibunja, Head of the National Integration Cohesion
Commission (NCIC), announced that one of the new areas of focus for the commissions
work will be hate speech on the internet. The commission will begin monitoring social
networks and commentaries on news networks for hate speech early as April.

According to the National Integration Cohesion Commission Act of 2008 hate speech
includes using threatening, abusive and insulting words, behavior, displays or written
material, publishing or distributing such written material. Distributing, showing a play or
recording of visual images or producing or directing a programme which is threatening
abusive or insulting that intended to stir up ethnic hatred. The Act makes hate speech
a criminal offense for which offenders can receive up to 3 years in prison a fine of not
exceeding 1 million shillings or both.

Dr. Kibunja stated: “Facebook, twitter and such networks will be our main focus and I can
tell you most of the hate speech comes from Diaspora not internally.”

Its hard to imagine how NCIC will go about cataloguing ever conceivable kind of hate
speech, will the commission be cataloguing all kinds of hate speech or just hate speech
that is political or ethnic tone, how will the commission avoid the appearance of being
merely a political proceeding, and will the end result be internet regulation?

Monitoring social networks and commentary is a monumental task given the millions
of Kenyans at home and abroad that are on facebook, twitter, have blogs, and amount of
commentary on news websites.

No doubt a very good argument can be made for monitoring social media and news
websites for hate speech given the current political climate. However it is also a rights
mine-field when it comes to ensuring that freedom of expression, freedom of information,
and the right to free speech are not infringed. I wonder Commission plans to go about its
monitoring?

March 24, 2011

13:17

Deferral, referral, challenge to admissibility are we confused yet!?

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Yesterday the Attorney General Amos Wako plainly stated that the ‘shuttle diplomacy’
had been a failure after a several permanent members of the United Nations Security
Council (UNSC) said that the Kenya case did not meet the threshold for a UNSC
resolution for a one-year deferral of the its ICC case against the six suspects.

So what now? The government has appointed a Queen’s Council and Barrister-at-law to
challenge the admissibility of the Kenya case at the International Criminal Court (side
note: are there no qualified Kenyan lawyers that could challenge admissibility at the ICC,
first the hiring of the foreign firm manage social media and now lawyers to defend the
ICC case?).

According to the Rome Statute a challenge to admissibility can be made under Article
19 by either by an accused person for whom a warrant of arrest or a summons to appear
has been issued under article 58, or by ‘a State which has jurisdiction over a case, on the
grounds that it is investigating or prosecuting the case or has investigated or prosecuted’
or by ‘a State from which acceptance of jurisdiction is required under article 12’.

The third option is not open to Kenya since the country is a signatory to and has
domesticated the Rome Statute. So the only grounds left on which the state/government
can challenge admissibility of the case is on the grounds that it is investigating or
prosecuting the case or has investigated or prosecuted the case. But this raises a few
questions.

Considering a considerable amount of tax-payers money has already been wasted on
shuttle diplomacy and there has been no consultation with the people of Kenya as
to whether they want to use even more of their tax shillings to hire foreign counsel to
challenge admissibility – why can’t the six suspects for whom summons to appear has
been issued challenge admissibility in their individual capacity under Article 19 (2)? Why
should state resources be spent to challenge admissibility of case?

Another issue with the challenge of admissibility is requirement for the government to
show that it is investigating or prosecuting the case or has investigated or prosecuted.
Notice the tense requires that the investigations or prosecutions be underway or already
completed at the time when admissibility is being challenged. Now I may be wrong
but to my knowledge there is currently there no evidence to indicate that the state is
investigating or prosecuting any of the six suspects.

So is this challenge to admissibility another exercise in futility considering that there is a
slew of judicial reforms that needs to occur before the state/government can even begin to
mount a processes that will be seen as credible and legitimate?

March 18, 2011

11:23

Hansard Highlights – Who gets to “step aside”

» ‎ Mzalendo.com

The debate below on the irregular award of the concession highlights an important issue – who gets to “step aside” when allegations of corruption have been made.

Irregular Award of Concession to Rift Valley Railways (RVR) (week of January 16, 2011)

Mr. Mbadi: asked the Minister of State for Public Service what disciplinary measures the Government has taken against the public officers mentioned in the 16th Report of the Public Investments Committee adopted by the House, for their involvement in the irregular concessioning of the train operations to Rift Valley Railways by the Kenya Railways Corporation.

The Minister of State for Public Service (Mr. Otieno): Mr. Speaker, Sir, I beg to reply. The 16th Report of the Public Investments Committee recommended that the Director of the Kenya Anti Corruption Commission should carry out investigations to establish the roles played by the Chief Officers from the Treasury and the Ministry of Transport in awarding the concession to Sheltam Railways/Rift Valley Railways. The PIC Report did not recommend any disciplinary measures to be taken against the Chief Officers who participated in awarding the concession to the railway company. However, it did recommend further investigations on the process of concessioning. Consequently, no disciplinary action has been instituted against any of these officers.

Mr. Mbadi: Mr. Speaker, Sir, Chapter 6 of the Constitution of Kenya is very clear on the requirements on the part of public officers with regards to integrity. Not long ago, the Minister for Foreign Affairs and the Permanent Secretary had to step aside before the Report of the House was debated. Early last year, we had a case where five permanent secretaries were asked to leave office because of pending investigations by the Kenya Anti-Corruption Commission. My question is: Why is the Executive applying double standards in terms of asking for accountability from its public officers?

Mr. Otieno: Mr. Speaker, Sir, the Committee recommended investigations. There is no basis of taking any disciplinary action until we get the report of that investigation.

Mr. Mbadi: On a point of order, Mr. Speaker, Sir. Is it in order for the Minister to evade my question? I was very clear. I said that in February last year, the Government asked five permanent secretaries to step aside because they were facing investigations by KACC. Here is a case where two Ministers, one Permanent Secretary and the Investments Secretary of the same Government are confronted by investigations by KACC. Why is it that they have not been asked to step aside to pave way for investigations? In fact, one of the Ministers is in charge of the Ministry of Transport at the moment, where investigations are supposed to take place.

Mr. Otieno: Mr. Speaker, Sir, the Committee, in its wisdom, did not ask anybody to step aside when it asked KACC to proceed on this matter. In other cases, the Committee recommended stepping aside to facilitate investigations. It means that the Committee did not have adequate information. It was referring the matter to KACC to investigate. But it did not, in its wisdom, request any stepping aside to facilitate that investigation.

Mr. Mbadi: Mr. Speaker, Sir, I want to find out from the Minister how investigations will take place in that Ministry and that State Corporation when the Minister in charge is among the people to be investigated?

Mr. Otieno: Mr. Speaker, Sir, I think we all know that KACC is very competent and can investigate whether you are in office or not. At an appropriate timewhen there is need to step aside, they have procedures to follow.

Mr. Mbadi: On a point of order, Mr. Speaker, Sir. Is it in order for the Minister to continue misleading the House, while he knows very well that the reason why Ministers and public officers are asked to step aside is – and in their own words when they step aside – it has become a tradition to say that they are leaving to give room for fair investigations? The main reason for stepping aside is to give room for fair investigation. It is not that a body is incompetent or not. Could he explain why, this time round, you are leaving those officers in office and yet, other officers in a similar situation were asked to step aside to give room for fair investigations?

Mr. Otieno: Mr. Speaker, Sir, we make decisions on the basis of the content of the issues that arise. Where the content is of a type that stepping aside is the way forward, then that direction is taken. The other examples he is giving, there was content that warranted such steps forward. In this particular case, the Committee itself did not even see it fit to suggest that anybody should step aside. There was insufficient content in that Report and I have said that the Treasury has already addressed the Office of the Speaker on this particular matter; on the basis of the facts that were laid before the Committee, which need to be further reviewed and possibly the Committee will make a different decision after receiving all this feedback from the Treasury.

March 17, 2011

8:57

Policy vs. Politics

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

To be honest I cannot remember who started the war of words but the clip of the Prime saying this has been replayed on the TV for near two weeks, suspended Higher Education Minister William Ruto and Deputy Prime Minister/Finance Minister Uhuru Kenyatta responded in kind with a verbal volley own. This week, yesterday in fact, Makadara MP Gideon Mbuvi challenged the Prime Minister to a popularity contest in Nairobi. It sounds ludicrous but its true, a popularity contest.

Popularity contest aside, at one point the verbal exchange between the Deputy Prime Minister/Minister of Finance Uhuru Kenyatta, Suspended Higher Education Minister William Ruto and the Prime Minister Raila Odinga became so bad that the three drew censure from the National Cohesion and Integration Commission.

Not only is the political jockeying divisive it is also distracting the public from questioning the substantive policies that have been brought to the table. It is also detracting from implementation of the constitution, establishment of constitutionally mandated bodies i.e. the new boundaries and electoral commission, the Supreme Court and its holding up judicial and police reform.

In fact with regards to the setting up of the independent boundaries and electoral commission, and making election management laws to conduct the eight kinds of polls for central and county governments in 2012, Mutula Kilonzo the Minister for Justice and Constitutional Affairs stated:

‘At the current pace, it will be a very hard task to come up with all these institutions, set in motion the process of vetting and appointing and conduct nationwide civic education about how the new electoral institutions work before the next elections’

The impact of the emphasis political posturing to the detriment of policy is not only felt at the national level but also at constituency level. From the Mzalendo Vox Pops it’s apparent that political posturing and partisan politics is not only detracting from the development at a national level but also at constituency level.

Give us policy not politics, policies are what actually affect the lives of the average citizen. By focusing on policy we can ignore the hype, the negative spin and personality battles that are distracting us from the real issue which is what are our elected officials do to improve the lives of every day Kenyans.

March 15, 2011

0:37

Mzalendo Vox Pop: Cyprian from Mwala Constituency

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Mzalendo Vox Pop is a feature where we open up our blog to our readers to share their views on their constituency or on matters related to Parliament.

About me: I am Cyprian from Mwala constituency. I voted in 2007, one of the largest mistakes I made then by looking at the party the candidates belonged to instead of the individual.

Your constituency : Mwala constituency is marred by all the problems that can be found in a few constituencies in Kenya.

Majority of the roads are in pathetic state. Most of the roads are filed with gravel. There is nearly no tarmacked road. Most of the bridges broke down some years ago, and have not been replaced.
There is no tap water. In fact in my location there is no even a single bore-hole, and that applies to the majority of the locations in Mwala constituency. Most of the rivers, the source of water, are dry and people have to travel for long distances looking for unclean water!
Majority of the population in the constituency live below the poverty line. They can rarely afford a single meal a day. Majority rely on subsistence farming, which has been impaired by the long dry seasons. NGO’s and even the government are still distributing some food stuff in the constituency. This has not been effective because it’s not sustainable.
The health facilities are also in pathetic state in addition to being few and far between. For example, from my home area, we have to walk for five kilometers to get to the nearest government dispensary! The health facilities are also poor equipped. The few personnel available are not even well qualified to provide professional health services.
The same applies to the education sector in the constituency. Most primary and secondary schools are understaffed, some preferring to employ untrained teachers. Additionally, most lack necessary facilities.
The constituency has a bursary fund which is unfairly distributed to those who have “connections”. In fact it never reaches to those who really deserve it.
The CDF funds were/are being misappropriated and even an audit and investigation is required from KACC. An example is some project (e.g. Kwa-Nguta in Makiliva sub-location, Mbiuni location, where piped water was supposed to be developed. The project is market completed successfully, and yet it was never started. Where did the money allocated to that project go?

In a nutshell, there is no development projects which have had a positive impact to the constituents since Kenya got independence, or probably in the history of Kenya.

Your MP : Just like all the previous MPs in the constituency, Hon. Muoki has been a joke to the constituency. The problems mentioned above paints clearly his progress, which definitely has been negative. I would definitely not vote for him again in the next general election. At the moment I don’t have anyone in mind, but I would never elect a candidate based on his party, nor any of the older generation. We want a new “kid” from the block.
Message to your MP: I wouldn’t want to meet him, but if I did, I’d tell him to honorably step down and call for a by-election. I hope my constituents have learned something regarding voting for MPs in our constituency, just like I have. Next time we should vote wisely.

March 12, 2011

13:43

The Summons

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa
On Tuesday this week the Pre-trial Chamber of the International Criminal Court issued
summons ‘to appear’ for the six persons deemed most responsible for the post election
violence of 2007/2008.

The summons were issued in two separate cases the first against Francis Muthaura
(Cabinet Secretary), Uhuru Kenyatta (Deputy Prime Minister/Minister of Finance), and
General Hussien Ali (Post Master General). The Chamber found reasonable grounds to
believe that Francis Muthaura and Uhuru Kenyatta could be criminally responsible as
indirect co-perpetrators (committed crimes through other persons Article 25 (3) (a) of the
Rome Statute) for crimes against humanity specifically murder, forcible transfer, rape,
persecution and other inhumane acts. They found the no reasonable grounds to believe
that General Ali was an indirect co-perpetrator, but found that he could be responsible for
contributing to crimes under Article 25 (d) of the Rome Statute (i.e. that he contributed to
the commission or the attempted commission of crimes by a group of persons acting with
a common purpose).

In the case second case which is against Henry Kosegy (Industrialisation Minister),
William Ruto (Suspended Minister of Higher Education) and Joshua Arap Sang the
Chamber found reasonable grounds to believe that William Ruto and Henry Kosegy
could be criminally responsible as indirect co-perpetrators in accordance with Article 25
(3) of the Rome Statute for crimes against humanity i.e. murder, persecution and forcible
transfer. The chamber found that though Joshua Arap Sang contributed to the crimes in
accordance with Article 25(3) (d) but that there were no reasonable grounds to believe
that was a co-perpetrator.

The two decisions are both 24 to 25 pages long with plenty of ‘legalese’ but definitely
worth the read. There’s a shocking quality to seeing the reasoning process that led up to
the issuing of the summons against the six named suspects starkly outlined in black and
white.

All the six suspects are now required to appear before the Pre-trial Chamber on April 7
for an initial appearance. This step is likely to be followed by a confirmation of charges
hearing, after which the court will decide whether or not the suspects should stand trial.

At this stage it is essential to remember that issuance of summons is not declaration
of guilt but rather finding that on the evidence provided by the Prosecutor there is
reasonable grounds to believe that one or more crimes presented in the Prosecutor’s
cases were committed, and further that there are reasonable grounds to believe that those
named could criminally responsible for the crimes.

Amidst the issuance of summons the standoff between ‘the government’ (the government
in quotes because the government is not unified on this issue) and the ICC continues. The
shuttle diplomacy seems to be going ahead unabated by dissent by certain members
of government, Kenyan citizens and the United States’ reiteration that it will not be
supporting the government’s deferral bid to the United Nations Security Council.

Following the Vice President’s visit to the United States, the Deputy Secretary of State
this week declared that the USA ‘does not support a UN Security Council resolution
to defer Kenya’s ICC cases.’ However not to be out done the government will now
challenge the admissibility of the two cases in the ICC, but that’s a different blog.

March 10, 2011

3:02

Women and Top Political Office

» ‎ Mzalendo.com

By Mzalendo Contributor (@mmajiwa)

If the results of the Infotrak survey published in yesterday’s papers is anything to go by

the next election will be a good one for women candidates. According to the poll 60 percent of those surveyed would vote for a woman candidate. Women’s performance in public office gets a 62 percent approval rating at parliamentary
level, 29 percent at ministerial level and 24 percent in the civil service. Only 21 percent
would not vote for a woman president.

Of course there are those that will dispute the results of the survey and say that the data
is unreliable as the results of any survey are skewed depending on the demographics
of those interviewed. However, despite the arguments against the survey results the fact remains that the
attitude change reflected by the survey results is certainly welcome and long overdue.

With regards to gender distribution in our government looks something like this – out of
222 parliamentarians only 21 are women, out of 42 ministers only 7 are women, out of 52
Assistant Ministers only 6 are women. Women make up only 7 out of the 44 permanent
secretaries and none of the 8 provincial commissioners are women. The percentage of
women filling top posts in public office is still mostly in single digits, dismal. This needs
to change.

The good thing about the change in attitude regarding principles of gender equity and
equality in public office is that these principles are enshrined in and protected by the
constitution, hopefully constitutional protection will save us from the empty rhetoric on
gender equality.

With regards to political seats Article 27 (8) obligates the government to take legislative
and policy 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. While Article 81
requires that the electoral system comply with the same principle. Article 91 requires
political parties respect and promote gender equality and equity. Article 197 (1) requires
that not more than two-thirds of the members of any county assembly or county executive
committee shall be of the same gender. The principle is also reflected at county level
where Article 197 (1) requires that not more than two-thirds of the members of any
county assembly or county executive committee shall be of the same gender.

If the constitution is adhered to with regards to principles gender equity in elective and
appointed positions the face of government should never look the same at least as regards
gender distribution.

March 08, 2011

18:41

Mzalendo Vox Pop: Anon from Ndia Constituency

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Mzalendo Vox Pop is a feature where we open up our blog to our readers to share their views on their constituency or on matters related to Parliament.
Background: I am a resident of Ndia Constituency in the County of Kirinyaga, born and bred in this constituency, I have lived here for all my lifetime and privileged to work at home and therefore understand the dynamics in the constituency well. The real picture of the constituency isn’t the one always painted by the media and in particular Royal Media Services (RMS) in their quest to campaign for the current member of parliament and Minister for Nairobi Metropolitan, Njeru Githae. My friends usually tell me that I am lucky to come from Ndia constituency, they think of it as a Silicon valley of sort, however, this isn’t the reality, there are so many challenges facing this constituency. Challenges in the constituency: One of the biggest challenge is that of illiteracy, in-terms of lack of knowledge as far as voting for the right leaders is concerned. This has led to continual voting of people who do not care and mind about the people who put them to power in the first place and therefore engaging in pure political forgetting the masses year in, year out. For example, the current MP usually remembers the electorates a few months to elections, he comes with gifts in form of firewood, maize and wheat flour to woo the uneducated and illiterate to sing and dance to his tune. Another challenge is that of incompetent leaders who manage the CDF and constituency bursary kitties. The current MP has filled the management committees with his cronies who are doing nothing but milk the kitties. For example, during the financial year 2009-2010, apparently needy students in colleges and universities were awarded bursaries, however, the money never reached the schools in which the students studied in. This is due to the ineptness and potency posed by the managing committees. What would you like to change: While our constituency is endowed with rivers and we are lucky to have Sagana river pass in our constituency, we still over-rely on rain fed agriculture. In the last season the rains have not been that reliable, therefore this will lead to many of the constituents who rely on farming to meet their daily needs go hungry, ironic that there are rivers which when the waters are harnessed for agricultural use by the hardworking people around the constituency can bear good fruits. Would you vote for your MP again?: With all that on my mind I wouldn’t give my MP a second chance, if anything I would start the process of recalling him from parliament if the clause worked right away. Who are the MPs potential challengers?: There is a competent lady known as Dr. Marion Mutugi a JKUAT don who if given a chance can take the constituency to the heights it desires to be in as far as agriculture is concerned. She has tried a lot to encourage farmers to plant alternative crops to maize and beans, she has gone a step ahead to introduce organic farming in the constituency. Another individual who poses a threat to the MP’s ambition of another term is Maina Kiranga a lawyer by profession who currently works with USAID. He has been instrumental in funding the youth groups and encouraging them to leave immoral behavior so that they can earn a living from their own hard work. What would you tell your MP if you met them?: If the MP wants my vote, one way of redeeming his fall is by reconstituting the CDF committees…some that are made up of people who never saw the door of a classroom. In addition, he has neglected the constituency and left it in the hands of his mouthpiece – one Muriithi Kang’ara who dictates on what happens when. Mark you, the mouthpiece is a class 2 drop-out as word goes around the constituency. This has rendered the MP inaccessible to the masses who elected him since for one of his constituent to see him he has to vetted by the mouthpiece and given an appointment on whether or not to see their MP. He needs to move out of the shadow of this guy. Also, there is something else that the MP needs to come out in the open and either deny or accept whether it’s true or false, in the past week or so, the provincial administration here was involved in the exercise of collecting signatures in support for a withdrawal of Kenya from the ICC process. In addition, there is talk that the signatures collected would be used to as a basis to force the prime-minister out of office. This leaves me with questions on the conduct of the MP, being a lawyer why does he want to support impunity and let the planners and organizers of chaos walk free without any punishment? Is this what he stands for being a lawyer? Impunity? Under whose directions and instructions were the provincial administration acting on? Is it a government project that we don’t know of. There are so many things that he should address, he should also stop acting all grandiose and beyond reproach, he should remember that his was a contested win and he has become so unpopular now!

March 04, 2011

0:36

Election Petitions and the Establishment of the Independent Electoral and Boundaries Commission

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Since 2007 there have been unprecedented number of election petitions.
Kenneth Marende, the Speaker of the National Assembly recently declared the
Kamkunji parliamentary seat vacant after the High Court allowed an electoral
petition filed by Ibrahim Ahmed disputing the results of the 2007 election in
which Simon Mbugua was declared the winner. The Speaker is also expected to
declare the Ikolomani parliamentary seat vacant following an election petition in
which the High Court nullified the results of the 2007 election.

A fair number of MPs have lost their parliamentary seat in the wake of election
petitions filed after the 2007 elections: Bonny Khalwale (Ikolomani) Omingo
Magara (South Mugirango), Joel Onyancha (Bomachoge), John Ngata Kariuki
(Kirinyaga Central), George Thuo (Juja), Dick Waithaka (Makadara), Abdirahman
Hassan (Wajir South), Simon Mbugua (Kamkunji), Ali Chirau Makwere (Matuga)
and Margaret Wanjiru (Starehe).

The flaws in the last election can be attributed in a large part to the inefficiency
and lack of the independence of the now defunct Election Commission of Kenya.
The sheer number of election petitions and MPs who have lost their seats to
such petitions points to a flaw in our electoral system, and/or the country’s
election oversight body.

In two weeks the Bill to creating the Independent Electoral and Boundaries
Commission (IEBC) will be tabled before parliament. The Chairperson of
Parliament’s Justice and Legal Affairs Committee, Ababu Namwamba, yesterday
stated that he expects to table the Electoral Act Bill on 17th March 2011, and the
body to be established 14 days after the law is enacted.

The IEBC is one of the 11 eleven commissions that parliament is mandated to
create under the new constitution. The IEBC will be responsible for overseeing
the election of the President, the National Parliament and county assemblies
and governors. It will also be responsible for demarcating constituency and ward
boundaries, for tackling problems with party nominations e.g. failure by parties to
follow their procedures, vote buying, and the replacement of winners by others
and the violence these practices cause.

The IEBC has a few things that favor its ability to properly carry out its mandate
and foster its independence. Unlike the ECK, IEBC commissioners will not be
chosen by the President alone and should have a degree of independence as
the constitution requires that IEBC commissioners are not closely connected to
a political party. Further that no one who has stood for election to Parliament or
held office in a party in the past five years can be appointed to the IEBC.

Lets hope the Electoral Act Bill maintains these provisions and gives the IEBC
the independence and the teeth that it will need to do its job properly.

March 03, 2011

9:04

Mzalendo Vox Pop: Robert from Ainamoi Constituency

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Mzalendo Vox Pop is a feature where we open up our blog to our readers to share their views on their constituency or on matters related to Parliament.

Background: I am Robert Kimutai from Ainamoi Constituency, my MP is David Too. On twitter I am @mpisha

I never voted in 2007 because I have never believed in politics or lets say politicians from my constituency are not elected genuinely or do not perform and never live up to their pledges and promises.

Your constituency: I come from one of the richest constituencies, which boasts of tea production and tea estates which pulls up the economy of the county. Our main problem is under-development, especially in social amenities; hospitals (deplorable state), schools(few, lacking facilities to upgrade the level of education),unemployment (the biggest threat since opportunities are obscured by the employers or even residents lack access to proper education which is more work-oriented).

Challenges facing my constituency: Few professionals in the constituency or even if there are, no platform to transfer skills or knowledge since the leaders within the constituency prefer one who is associated/related with/to them.

Positive developments in my constituency: The community is aware of the habits of politicians so they are conscious of themselves are more are now focused on their own development (self-employment). Also investors are now keen to create employment with presence of three supermarkets, more banks coming up, an Ardhi house almost being completed, Saccos present.
There are now forums to create awareness of opportunities which are beneficial to the community,creating platforms for investors to boost wealth of the constituency. Leaders have to market their plans, ideas and have a competitive process to elect, not the ones whom we are being imposed on every election year by so-called ‘Elders’.

Your MP: My MP-Benjamin Langat – I might forgive him since he was elected after his late brother’s (David Too) untimely death , BUT so far we haven’t seen any developments which will make us defend or bring him back. On a scale of 1-10, he gets a 4 from me. He’s hardly in the constituency, the CDF kitty is run by his cronies who ensure they serve the interest of his people. He has a habit of controlling appointments of boards of schools which explains the poor performance of schools from the constituency.

Potential candidates for the next election are few:

David Koros is a performer both publicly and privately, he owns businesses which have flourished and he’s focused, sober, smart, religious, and concerned with the going-ons in the community. He was a contender in the last elections but lost since he was a new-comer and he defeat conceded defeat and vowed to fight another day.
Chepkwony aka Timbilwet is another potential depending on which seat he’s after. He gave the late David Too a great fight for the seat but lost due to irregularities and alleged bribery. He is a don of Kabianga Campus,an academician and veteran in the politics of the constituency.

Message to your MP: First, I will ask him to give me his score-card – the pledges he made and what he has achieved since 2007. Second, what has he done with/ for the youth and women of the constituency? Third, I would ask whether he has ever made any decisions by himself or he belongs to the sheep-mentality of following what other leaders are saying from the area without consulting the constituents?

March 01, 2011

23:22

Full Ngilu (Ministry of Water Report)

» ‎ Mzalendo.com

0:51

Infographic: Who Does What Under New Constitution

» ‎ Mzalendo.com

February 27, 2011

23:28

On Censure Motions

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Budalang’i MP and chairperson of Parliament’s Justice & Legal Affairs
Committees, Ababu Nwambamba, seems to be the latest in number of
government officials facing threats of removal from office or censure motions.

8 MPs have signed a petition giving three days notice for the removal of MP
Ababu Nwambamba as chair of the justice & legal affairs committee under
Standing Order 175, which permits a vote of no confidence against the
leadership of a committee by a majority of its members. The calls for removal of
office came after the Justice and Legal Affairs committee submitted reports on
the validity of judicial nominations.

I say latest because recently there has been an alarming number threat of
censure motions or calls for removal office – 4 in the last month alone.

This week some MPs called for the early removal of the Attorney General Amos
Wako from office, his term ends 27th August 2011. The call for his removal came
after his statement in court that the nominations for AG, DDP, CJ, and Budget
Controller were improper.

The MPs calling for the AG’s removal feel that his statement over the impropriety
of judicial nominations undermined both the president and the ‘governments’
position on the nominations. They have also accused him of failing to properly
defend the government in a case brought by women’s organisations on the
constitutionality of the nominations.

Last week the Speaker of the of National Assembly, Kenneth Marende also faced
threats of censure when the Vice President and Head of Government business
and a section of MPs threatened move a motion censuring the Speaker following
his ruling that nominations were unconstitutional.

And earlier this month 14 legislators threatened to lead a censure a motion
against the Prime Minister, following the row with the President over the
nominations. ‘If he continues like this we are going to move a motion of no
confidence against him’ stated Kaloeni MP Kambi Kazumgu.

The basis of all these motions seem to be having a dissenting opinion, rather
than an actual inability to perform ones duty, or acts of gross conduct. Furthermore,
these motions and calls for removal from office seem surprising given that no
such or calls motions have been brought to censure parliamentarians that are
being investigated for drug trafficking, or ones that have been mentioned in
connection with crimes against humanity in the international criminal court case,
or ones who have ongoing cases criminal cases and whose personal interests
may actually be conflict national interests.

When did disagreement become a reason for removal from office and what is the
impact of such vexation censure motions on independent thought?

February 24, 2011

13:18

Where is the money for public education going?

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The topic of education has been receiving a lot of play in media recently. Whether or not to reform the 8.4.4 system? The introduction quota system for entry into national secondary schools, whether or not to scrap the parallel course at public universities, are all part of the debate. Today’s Standard newspaper has an interesting story on Jua Kali National Schools. The story is about the Ministry of Education’s plan to upgrade about 100 provincial secondary schools to national schools to ensure that more students graduating for primary school have access to a national school education. As the article rightly points out, a change in the status of a school from provincial to national adds little value if nothing is done to improve the schools infrastructure and/or the quality of the education given in the schools, and is unlikely to equip the children going to these newly ‘nationalised’ schools with the knowledge and skills to advance themselves.

The low quality of public education is surprising given the amount of money that goes into the system. The National Taxpayers Association revealed just how much taxpayers money goes into the education sector, about Kshs 6.6 billion annually. Frankly for that amount I would think the public education system would be in better shape both quality and infrastructure-wise particularly in the rural areas. Did you know every year, Kshs. 30 million is set aside for each constituency to construct a centre of excellence? And that each constituency is expected to equip two primary schools with water harvesting facilities costing Sh. 1.47 million? And that in addition to CDF, the government allocates millions of shillings to every constituency for education through the Economic Stimulus Project. I live in Nairobi, but when I look at the school in my “shagz”, Karachounyo Constituency, I’m hard pressed to believe that the constituency receives even Kshs. 1 million let alone Kshs. 30 million every year for education. Further neither the primary nor the secondary school could be termed centres of excellence.

So my question is where is the money going?

3:23

Task Force on Devolved Government

» ‎ Mzalendo.com

February 22, 2011

16:24

Public Notice on Kiplagat Tribunal

» ‎ Mzalendo.com

February 11, 2011

18:17

Checks and Balances in Nominations and Appointments

» ‎ Mzalendo.com

By Moreen Majiwa (@mmajiwa)

It has been a little over two weeks since the announcement of the nominees for Attorney General, Director of Public Prosecutions, Chief Justice and Budget Controller. Since then a lot of ‘he said this, he said that, I didn’t say, I didn’t say’ has ensued been between the camps of the two principles. However despite the noise crucial progress has been made, progress that will hopefully chart the path forward for future nominations and appointments.

The first is the progressive ruling by High Court Justice Daniel Musinga made last week. The High Court judge ruled that it would be unconstitutional for the State to carry on with the process of approving and eventually appointing the nominees for Chief Justice, Attorney General, Director of Public Prosecutions and Budget Controller based on nominations of the individuals made by the President on 28
January 2011.

The Judge found that the nominations were unconstitutional because all four nominees were male and no reasonable explanation had been given as to why there were no women among the four nominees.

He therefore found the nominations in violation of Article 27 (4) & (5) of the constitution which prohibits discrimination of grounds of sex, Article 27 (3) which guarantees equal treatment to both men and women, and Article 129 which requires executive powers be exercised in accordance with the constitution.

The ruling will hopefully ensure that consideration of gender equality is an integral part of future nominations and appointments to all levels of public office.

A further point of progress is the ongoing interrogation of the use of executive powers and the manner in which the powers are exercised in nomination and appointment processes.

Where as previously executive decisions, particularly those made by the President, were expected to be accepted without question. Since the controversial nominations a precedent is emerging were relevant parliamentary committees inquire into the process of decision making by the executive.

The on-going interrogation of the nomination process by the parliamentary committees allows the public to scrutinize the interests and motives that drove nomination process, and examine the accountability of the executive and constitutionality of its decisions.

Hopefully this will result in a situation where knowing that the exercise of the executive powers will and can be interrogated, and are subject to the checks of parliament will cause the executive to abide by the rule of law in the exercise of its powers.

And a reminder more than the ever, that a key part of entrenching the new constitution is constitution building.

February 09, 2011

14:59

Deferring Kenya’s ICC case – why waste taxpayers money?

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Intense lobbying by the Vice President for African Union (AU) support for deferral of Kenya’s ICC case seems to have yielded results. Last week at the AU summit, support for the deferral was resounding Kenya gained the backing of both the Executive Council (AU ministerial level) and the General Assembly (AU Heads of State Level).

However the AU’s support for the deferral of the Kenya case is unsurprising. The AU made a similar request for deferral in the Sudan case after the UN Security Council referred situation in Darfur to the Office of the Prosecutor (OTP). Of course, the circumstances are slightly different. In the case of Sudan the AU Peace and Security Council requested deferral after the OTP submitted its ‘application for the issuance of the arrest warrant’ against Sudan’s president, citing that the timing of the request for arrest warrants could jeopardize the ongoing Darfur peace process.

In Kenya we’re still at the summons stage, no application has been made for the issuance of warrants, and our peace process (if it can be called that) was completed in 2008. It is worth noting however that despite an ongoing peace process and active violence in Darfur the Security Council still rejected the AU ‘s application to have Sudan case deferred. So what are Kenya’s chances and what are the requirements for deferral of Kenya’s case?

The clause the government is relying on to make its case for deferral is Article 16 of the Rome Statute which provides for postponing investigations or prosecutions for a period of 12 months on the adoption of a Security Council Resolution taken under Chapter VII of the UN Charter. (Side Note: Why is parliament trying to use the very same statue it is planning to pull out of to defer its ICC Case?) Chapter VII of the UN Charter would allow the UN Security Council to defer a case to ‘maintain or restore international peace and security’ if it determines the existence of any threat to the peace, breach of peace or act of aggression. Chapter VII resolutions are rare and tend to be used only in extreme circumstances. So far in the case of Kenya, there is nothing to indicate that the continuation of the ICC proceedings would create a threat to peace and security as envisioned by Chapter VII of the UN Charter.

Furthermore, Kenya would require the support of if 9 of the 15 members UN Security Council and the support of the all the permanent members. One veto by a permanent member (China, France, Russia, UK and US) of the Security Council would result in refusal to defer the case. Plans are currently underway to lobby the members of the UN Security Council to support the deferral with a special Cabinet team being set up to taken on the task.

One of the main reasons given by a certain section of government officials for deferral is the reform of Kenya’s judiciary and Kenya’s ability and willingness to now try the 6 ICC suspects. However Article 16 of the Rome Statute is clear as to the circumstances that warrant deferral, ‘reforming’ is not one the criteria.

As it stands deferral seems unlikely, and this begs the question what is the true motive behind spending millions of taxpayers shillings on a process that is unlikely to succeed?

February 02, 2011

19:40

He Said, He Said…Who is Right on the Judicial Nominations?

» ‎ Mzalendo.com

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Yesterday the impasse between the President and the Prime Minister on nominations for Attorney General, Chief Justice, and Director of Public Prosecution, came to ahead in Parliament and on TV for all to see.

The issue – whether there had been consultations between the two Principals over the proposed nominees. While it’s not the only controversial issue surrounding the nominations, whether or not consultations took place is crucial to the determination of the constitutionality of the nominations made for the positions Chief Justice, Director of Public Prosecutions and the Attorney General.

Section 24 (2) and 29 (2) of the Sixth Schedule are both clear on the topic of consultation.

Section 24 (2) ‘a new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.’

Section 29 (2) ‘Unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, ‘the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister’

Until yesterday the Prime Minister had maintained that no consultations were had between the President and himself. So it was surprising when the Vice President and Head of Government Business stood up and proceeded to read out minutes of what seemed to be a lengthy consultation between the President and Prime Minister on the issue of the judicial nominees.

While the Prime Minister conceded that the meeting between took place between President and himself. The Prime Minister stuck to the position that what took place between the President and himself did not constitute a consultation on nominees. He insisted that it was not the main purpose of the meeting and no conclusion was reached as to whom the nominees should be. Furthermore, he suggested that further consultations be held before the names of the nominees were forwarded to government.

Mzalendo has obtained the full minutes read by the Vice President before Parliament do they constitute a full consultation? You decide…the minutes of the consultation can be downloaded here (543 KB PDF)

12:56

Public Campaign in Support of ICC

» ‎ Mzalendo.com

There are a number of events scheduled in the next few days to display Kenyans’ disgust with the impunity of our politicians. See below for details:

1. A Peaceful Procession from Freedom Corner to Parliament WHEN: Thursday February 3, 2011 from 12:00 pm WHO: Kenyans from all occupations are called upon to participate MEETING POINT: Freedom Corner. This is to protest the continued and blatant acts of impunity by our leaders. This has been clearly demonstrated by the ongoing political actions to scuttle the ICC process through a motion passed in parliament to withdraw from the Rome Statute; misuse of public funds in lobbying African states to support the postponement of the ICC process and undertaking to pay legal fees for the Hague suspects; disregard to the rule of law and the Constitution.

2. MOMBASA KATIBA YETU, MAISHA YETU PUBLIC FORUM ON SATURDAY, FEB 5th Muhuri, CJPC Mombasa and Haki Yetu have planned a Katiba Yetu, Maisha Yetu public forum to be held on Saturday February 5 in Mombasa. Prof Ghai, Catholic Archbishop Boniface Lele, ACK Bishop KALU, Father Dolan, members of the Council of IMAMs and CICC & other coastal clerics will be signing up for the YES to ICC Now, No Deferral’ campaign on the day. They will also follow up with region-wide door to door visits, as they work towards their target of at least 50,000 signatures.

3. NAKURU, NAIROBI AND NYERI DISCUSSION FORUMS

Stakeholder discussion forums will be held in Nakuru (February 8 – 9), Nairobi (February11 – 12) and Nyeri (February 18). Candid conversations will be held on the effects of ICC, as well as the importance of this campaign. Signatures will be collected, and signature collection booklets handed out to volunteers to collect additional signatures around where they are. Another 4-6 forums are being arranged for other locations, and we will keep you updated

4. Diaspora: BONIFACE MWANGI (PICHA MTAANI) ‘NEVER AGAIN’ PHOTOGRAPHIC EXHIBITION IN USA

Boniface Mwangi will be taking the ‘Never Again’ collection of his work to Rutgers University (New Brunswick, New Jersey) at the Center for African Studies (CAS) from February 14-28, 2011. ‘Never Again’ has already been exhibited in eight towns in Kenya, and been viewed by over 500,000 people in the country. The collection of photographs captures tragic moments of the PEV.
He will also be engaging with scholars, students and the American public about the subject of the exhibition, as well as have to speakers on the topic of ‘violence & healing’. (I.e Ngugi Wa Thiongo & Gabrielle Swab-Chancellor of Comparative Literature at University of California).
He will be collecting signatures for the ‘YES to ICC Now, No Deferral’ campaign. His exhibition is geared at educating Kenyans in the diaspora about what the PEV was like, as well as sensitizing them to be vigilant/concerned about how every dollar they contribute towards political causes in Kenya, is used.
The exhibition might move on to New York, DC & Chicago after Rutgers, but he will keep us updated.

5. COLLECTION STRUCTURE: Starting Monday February 7, 2011 Nobel Laurette Wangari Mathai’s Green Belt Movement will set up a Peace Tent at Kencom Bus Stop in Nairobi’s CBD, where people can sign up in support of the campaign, and also collect material on the ICC. This tent will over the next 3 weeks move between Kencom and Railway Bus-stop, and maybe even all the way to Machakos Bus-stop. GBM will also have additional tents moving into various estates in Nairobi. GBM also has 36 EOs who work for the across the country, and they will distribute bound signature collection booklets to them in batches of 2,000. They also have a presence in one way or another in 174 constituencies, and they will mobilize this network as well, to sign up on this campaign

February 01, 2011

16:38

Judiciary Nominations

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The announcement of nominations of the Chief Justice, the Attorney General, and the Director of Public Prosecutions (DPP) took people by surprise.

Since the nominations there have been mixed messages about the constitutionality of the nominations one faction of leaders say that the nominations were in order and the other that the nominations are unconstitutional.

The constitution is quite clear with regard to nomination of the Attorney General (AG). Article 132 (2) (b) and Article 156 (2) state the AG shall be nominated by the President and with the approval of the National Assembly, appointed by the President. So the nomination so far would appear constitutional, were it not for the transitional and consequential clauses in Schedule 6.

With regard to the nomination of the Director of Public Prosecutions the constitution states the DPP shall be nominated and with the approval of the National Assembly, appointed by the President, Article 157 (2). The clause is vague as to who does the nominations so that validity of nomination is up for debate. From the construction of the clause one can assume the President is the one to nominate. However if this was intention why isn’t clearly stated as with the same manner with the process for nomination of AG?

The most contentious nomination of the three is that of the Chief Justice (CJ). Article 166 (1) (a) clearly states that the President shall appoint the CJ in accordance with the recommendation of the Judicial Service Commission and subject to approval of the National Assembly. The Judicial Service Commission did not make the recommendation as required by the constitution and they have clearly stated so. Therefore the nomination of the CJ is unconstitutional.

In addition for appointment of the Chief Justice consultation between the two Principals is specifically provided for. Section 24 (2) Schedule 6 states ‘a new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.’ Meaningful consultation can only take place at the stage of nomination. The president cannot nominate without consulting, wait for the vetting to take place and then consult just before the appointment.

Similarly the nominations for AG and DPP require that there be consultation between the President and the Prime Minister. Section 29 (2) of the Sixth Schedule states that when the President is making an appointment that requires approval of the National Assembly ‘the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister’ (until the after the first elections under the constitution). The reasonable sequence would appear to be that the President and the Prime Minister consult on suitable persons agree and forward the name National Assembly for approval, and only after approval can the President appoint the person.

Another pressing issue is that out of the four nominations, including the Budget Controller, none is a woman. This flies in the face of gender equality and equity and is tantamount to discrimination against women that contravenes Article 27 (4) of the constitution that prohibits discrimination on the grounds of sex.

As the drama around the nominations play out in the press, it does appear that the nominations, at minimum, are in breach national values and principles of governance outlined in Article 10 of the constitution i.e. the rule of law, participation of people, equality and non-discrimination, good governance, transparency and accountability.

January 28, 2011

9:43

The ICC and Media Responsibility

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By Mzalendo Contributor Moreen Majiwa (@mmajiwa)
On Wednesday I went to a public forum on media responsibility in reporting on the ICC processes. The panel was made up of Gichugu MP Martha Karua, Former TJRC Vice Chairperson and transitional justice expert Kaari Murungi, Nation Editor Macharia Gaitho and the Head of Article 19 Henry Maina.
Chepalungu MP, Isaac Ruto was also scheduled to be there but he didn’t turn up.

The topic was particularly interesting because of the critical role the media plays in gathering and distributing information in an environment where transparencyon government business is limited.

Outside official government statements the media remains one of the few avenues through which we can know exactly what our government is doing and through which our right to information is exercised. So what do we as Kenyans and consumers of media expect from it?

Most of those present at the forum expected the media to provide factually accurate, fair, balanced and impartial coverage of events, and as one of the panelists remarked Kenya being a pos- conflict country the media had an additional duty to be constructive in its reporting and an agent of reducing conflict
rather than exacerbating it.

While the panelists lauded the media’s coverage of the ICC process as well as the evolution and maturity of the press since its coverage of the 2007/2008 post-election violence, they also criticized the media of becoming progressively embroiled in the politics and losing cite of the main issues.

Some of the criticism levelled against the media included:

The lack of media of memory has meant that politicians have and continue to be allowed to behave badly – going back on promises, and flip-flopping on issues with no one to hold them to account for earlier utterances, particularly with regards to their initial support of and subsequent withdrawal of support for the ICC process.
Because the media had become so caught in the politics, they have become a platform for the theatrics of politicians thereby emboldening impunity rather than being a voice of truth.

However it must be acknowledged that similar to most Kenyans, the ICC process is also new to the media and there still needs to a built a competency within the press on reporting on the ICC. What do you think of presses coverage of the ICC process so far?

Is the media losing its agenda-setting platform in its coverage of the ICC?

January 26, 2011

0:08

Parliament has no business to transact? Really?

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By Mzalendo Contributor (@mmajiwa)
Last week, in an unprecedented move, parliament opened for 24 hours and then went back on recess. The given reason - there was no business for members to transact and therefore no reason to keep the legislators in House.

But lets review:

The Judicial Service Commission (JSC) is still to be fully established. The deadline for its establishment is way overdue. The constitution required that the JSC be set up within 60 days of promulgation i.e. October 27th last year. Judicial Service Bill and Vetting of Judges and Magistrates Bill also waiting debate.

The Supreme Court still needs to be established this is no small task. The constitutional deadline for the setting up of the court is one year after promulgation that makes the deadline August 2011.

The positions of Chief Justice and Attorney General become vacant in February and March both the yet to be formed JSC and parliament play a big part in filling the upcoming vacancies.

The tribunal that is to vet judges and magistrates still needs to be formed.

Salaries and Remuneration Commission still needs to be set up. The constitution requires that it be set up 9 months after the date of promulgation i.e. by May 2011.

The constitutional deadline for the establishment of the Independent Electoral andBoundaries Commission, Ethics and Anti Corruption Commission, The Kenya National Human Rights and Equality Commission is one year after promulgation i.e. September 2011.

There is also pending legislation. Legislation on elections, electoral disputes, political parties, legislation on citizenship, legislation on vacation by MPs, legislation governing the new judicial system, legislation on the vetting of judges, and legislation governing devolution of government.

The Police Reform Bills tabled by internal security Minister George Saitoti still need to be debated. In light of recent incidents involving the police this is more urgent than ever.

The daunting task of establishing a devolved government before the next election still remains. The debate on the new 80 constiuencies and their boundaries is also pending.

The issues listed above exclude the normal day-to-day business of parliament. So contrary to the claim that there is no business to transact, it seems there is too much business to transact! The sheer magnitude of what parliament needs to accomplish this year warrants their immediate return to work.

January 24, 2011

10:39

TARDA Scandal / Audit Report – Anyone Care?

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An audit of operations at the Tana River Development Authority (TARDA), which was leaked several months ago, has revealed a number of questions in the operations of the body and its use of public funds.

The detailed report, originally obtained from here can be downloaded here (307 KB PDF). The report is nothing less than a detailed manual on how to fleece a government parastatal – from ghost workers, to work done Kshs 45 million but no contract, to unnecessary pesticides, allocation of Kshs 35 million to plant rice that wasn’t planted (but money spent), and payment of domestic works for (5 each) for the MD and Deputy MD.

We find it curious that months later, there has been scant media reporting about the scandal and little or no government reaction to the report…especially in light of recent reports that Kenya is about to face yet another drought. To make matters worse the current MD had been previously fired for stealing from the Ministry of Foreign Affairs is on no one’s radar. Wouldn’t it be great to have a day of news that doesn’t focus on the newest political (read tribal) alliance, but instead focuses on how the government is fleecing taxpayers?

To give credit where credit is due, at least several Member of Parliament have raised the issue of TARDA’s mismanagement in Parliament – including the selection process of the current MD. However, the Minister’s Response is insulting to say the least..read on.

APPOINTMENT OF TARDA MANAGING DIRECTOR (from Hansard 23rd July 2009)

Mr. Linturi: Mr. Temporary Deputy Speaker, Sir, I beg to ask the Minister for Regional Development Authorities the following Question by Private Notice.

(a) What is the name, qualifications as well as the procedure the Minister used in the
recruitment of the current Managing Director of Tana and Athi Rivers Development Authority (TARDA)?
(b) Was due diligence carried out in establishing his qualifications and suitability for the job and was the appointment in conformity with the Government regulations or guidelines regarding the appointment of such officers?
(c) Could the Minister confirm that the Managing Director is the subject of corruption
related investigations arising from his conduct during his tenure in the diplomatic service?
Mr. Temporary Deputy Speaker, Sir, I have not received a written answer from the
Minister.

The Minister for Regional Development Authorities (Mr. Gumo): Hapana uliza
maswali mengi hapa! Mr. Temporary Deputy Speaker, Sir, I beg to reply.

(a) The name of the current Managing Director of TARDA is Mr. Francis Musumba
Agoya. He is a Bachelor of Commerce Degree holder. The procedure that was used in the
recruitment of the Managing Director was as follows:-
(i) The Board of TARDA advertised the vacant position in both the Daily Nation and The
Standard newspapers on 3rd February, 2009. A human resource consultant, M/s Manpower Services Limited, was appointed to assist the Board in the recruitment process. A sub-committee comprising of a number of Board members, including the Chairman, was appointed to work with the human resource consultant in carrying out the recruitment process. Following the advertisement, 94 applications were received. The consultant shortlisted 11 candidates for further interview. The sub-committee, with the assistance of the human resource consultant, interviewed the 11 shortlisted candidates on 23rd March, 2009 and shortlisted the under-listed three suitable candidates , whose names were forwarded to my office by the Chairman of TARDA on 2nd April, 2009 for consideration.
In exercise of the powers conferred to me under Section 10(i) of the Tana and Athi Rivers
Development Act, Cap.443, and in my capacity as the Minister for Regional Development
Authorities, I appointed Mr. Francis Musumba Agoya to be the Managing Director of TARDA for a period of three years with effect from 24th June, 2009. As required by the law, the appointment was published in the Kenya Gazette Volume CX1, No.62 of 17th July, 2009. Giving due regard of that recruitment procedure, the appointment was in conformity with the existing Government regulations and guidelines.
(b) I believe that TARDA and the consultant were duly satisfied with the qualifications
and the suitability of the three candidates that they had recommended to my office for
consideration for appointment to the post.
(c) I am not aware and, hence, cannot confirm that the Managing Director is subject to
corruption related investigations arising from his alleged commissions during his tenure in the diplomatic service.
Mr. Linturi: Mr. Temporary Deputy Speaker, Sir, I beg the indulgence of the Chair to
enable me to take the Minister through what is happening within his Ministry. There are issues or
matters that he may not be aware of or if he is, then he may be very ignorant of some of the
regulations that are supposed to be observed in the appointment of parastatal heads.
I want to bring to his attention a circular from Amb. Muthaura regarding the procedure.
Paragraph 2 reads:-
“The CVs of all persons to be appointed to these offices must be sent to the Office of the
President for vetting in order that the people who are appointed do not have bad records which in
future may be used to embarrass the Government.”
I am saying that because Mr. Agoya was dismissed from the Civil Service vide a letter
dated 27th August, 1997, for theft. When he was working at the Kenya Embassy in France, he
stole French Francs 246,000 from the Embassy. The Ministry of Foreign Affairs dispatched a
team of detectives headed by Chief Inspector Chege Gathogo by whose recommendations, Mr.
Agoya was sent back to Kenya for prosecution, which has never been done to date. Lastly—
The Temporary Deputy Speaker (Mr. Ethuro): What is your question, hon. Linturi?
Mr. Linturi: Mr. Temporary Deputy Speaker, Sir, could the Minister tell us why due
diligence was not conducted to establish the character and the integrity of that particular person
by the name Agoya? In the list of the three shortlisted candidates, there were candidates who
even scored higher marks than Mr. Agoya as presented to the Minister by the Board of
Management. Why was there no due diligence?

Mr. Gumo: Mr. Temporary Deputy Speaker, Sir, first, the TARDA Act empowers the
Minister for Regional Development, who is me, to appoint a Managing Director even without any advertisement. Therefore, any regulations that the hon. Member has quoted are not in the law. Secondly, I do not have to advertise. I can even appoint you tomorrow because the law is very clear here. Thirdly, what the hon. Member has said is not true. What happened in the Ministry of Foreign Affairs at that time happened before Mr. Agoya was appointed. I have the report which I can give to the House. Therefore, those events are only being connected because the person they wanted was not appointed. When I am given three names, it is not my responsibility to go round looking at how many marks each one of them scored. It is not a classroom. They are not supposed to give marks. They are supposed to recommend three names and the Minister is supposed to appoint one out of the three candidates. That is what the law says.
Mr. Linturi: On a point of order, Mr. Temporary Deputy Speaker, Sir. I find the Minister
quite out of order. He is misleading this House. The report which I am about to table before this
House was initiated by the Ministry of Foreign Affairs and was conducted by the Criminal
Investigations Department (CID). They recommended that Mr. Agoya should be charged with
fraud contrary to Section 331 of the Penal Code. Is the Minister trying to say that because he has the power, he can even appoint thieves or thugs to head parastatals?
Mr. Gumo: Mr. Temporary Deputy Speaker, Sir, these are things that happened 20 years
ago. If the hon. Member was aware of this—- Since I was given the three names, I stayed with the information in my office for three months from March up to the other day. There was no complaint or report or anything until the day Mr. Agoya was appointed. That is when they cam up with these reports which are not true. All these reports are not true. These things have been made in the streets and brought here.
The Temporary Deputy Speaker (Mr. Ethuro): Order, Mr. Minister! These are reports
which have been produced in the House. The House is not the streets.
Mr. C. Kilonzo: Mr. Temporary Deputy Speaker, Sir, it appears as if this is a country for
the rich. If you look at the current advertisement for NYS recruitment, you will see that one of
the things they are asking from that common man who wants to join the institution is a certificate
of good conduct. There is a letter here dated 25th May, 2005, from the Director of CID asking
why this man has not yet been prosecuted. It appears as if this man is well-connected. He can
steal and not get prosecuted. The reason why he was dismissed is because he had a bad character.
He was a given a job and went away. He was dismissed according to the letter here dated 27th
August, 1997, on account of desertion of duty. What we are asking is very simple: Does this
Government not have some code of conduct or a guideline on ethics? How can we go on picking
someone who is supposed to be prosecuted and yet he does not get prosecuted since he is well-
connected? Is the Minister suggesting that every hon. Member should bring one thief so that he
can recruit them?

(Mr. C. Kilonzo laid the documents on the Table)

Mr. Gumo: Mr. Temporary Deputy Speaker, Sir, I am not aware of the documents that
they are referring to. Lay them on the Table so that we can look at them. I am not aware. If there was any complaint, they should have written a letter with regard to the issue earlier to my office or complained to the Board. Why did they have to wait until the appointment was done and the name gazetted so as to bring the issue here? I am not aware of all these documents. Let me look at them.

January 22, 2011

19:49

Is the KKK Alliance Constitutional?

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)
In the last few days the Kikuyu, Kamba, Kalenjin (KKK) alliance formed by Eldoret MP Willam Ruto, Vice President Kalonzo Musyoka and Deputy Vice President Uhuru Kenyatta has dominated the headlines.
As yet it is difficult to determine what exactly the alliance is. Whether it is a party in waiting or whether it will be a coalition of three different parties representing the three different communities.
If it is the intention of the three leaders of the KKK to eventually transform the as yet undefined alliance into a political party or a coalitional of parties based on ethnicity this would be both unconstitutional and illegal.
Part 3 of Chapter 7 of the new constitution that deals with political parties clearly states in Article 91 (1) (a) that every party shall have a national character as prescribed by an Act of Parliament. While parliament is yet to legislate on the exactly what constitutes ‘national character,’ it is safe to a assume that in a nation of 47 ethnic groups a coalition or party made of just of three of the forty seven does not met the requirement of being national in character. Not only does the KKK not meet the basic requirement of being national in character by excluding the 44 of the 47 ethnic groups, but such an alliance is also flies in the face of the rest of Article 91 (2) that requires that political parties not be founded on regional or ethnic basis.

Furthermore, the formation of an alliance based on ethnicity also falls foul of the concept of national cohesion and integration enshrined in the National Cohesion & Integration Act of 2008 and yet the National Cohesion & Integration Commission seems to be silent.

Negative ethnicity has played and continues to play a detrimental role in Kenyan politics and most Kenyans want to break away from this past and to change this dangerous state of affairs. This desire is enshrined in the new constitution and the National Cohesion & Integration Act. Alliances such as the KKK take us back to a bygone era and have no place in present day Kenya.

January 21, 2011

10:13

Notes from the ICC demo

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By Mzalendo Contributor – Moreen Majiwa

I’ve never been involved in a Kenyan demo before but I’ve seen the pictures andnewsreels. The ones where demos look like small-scale wars: baton-wielding police infull riot regalia, shields included. Armoured vehicles, tear gas, demonstrators scattering and trampling each other to avoid police batons, others hurling rocks, dummy rounds fired into the air, demonstrators ushered violently into police trucks as arrest are madeleft and right.

I also have an MO during demonstrations avoid CBD, avoid Uhuru High Way, andUniversity Way unless completely necessary. Stick to the back routes, traffic and distance be damned. I avoid demonstrations studiously.

So how did I end up at this demonstration? First I believe in the cause, I believe the ICC process is right for the Kenyan context, the failure of the MPs to set up as a local process thus far speaks to this. And as one of the organisers stated, “If MPs can manipulate an international process like the ICC processes in the way they are doing now, can you imagine what they would do to a purely internal process?” The thought is scary.

Like other Kenyans at the protest I’m 100% against the MPs move to pulling out of the ICC, or using public funds to defend the Ocampo 6. Most of all I’m fed up with watching from the sidelines while our politicians try their best to turn the country into a banana republic. So the demonstration seemed like a place to commune with like-minded Kenyans to express our views to our parliamentarians.

Needless to say the demonstration was nothing like I expected. Apart from the late start,
when I arrived at 1.00 pm the press outnumbered the demonstrators and most people did not
arrive until about 2.00 pm. However when did arrive they were raucous and eager. Chanting
and weaving their way round Freedom Corner carrying placards and wearing t-shirts with
slogans like ‘Yes to the ICC’ ‘Defending Suspects Not with my Money’ ‘Yes to the ICC!
No to Impunity!’

However, like some of the demonstrators and the press I was under impression that the
demonstration would proceed to parliament. I also expected that it would result in the
prototypical demonstration violence. In fact I was prepared armed with a bag packed
lighter than its been since giant bags became fashionable, appropriate clothes and
shoes, and a more than healthy amount of vigilance. However ,it turned out that none of
this was necessary, the demonstration was peaceful.

The one hitch other than the late start happened when it dawned on some of the protestors
that the protest would not leave the park. One particularly irate young Kenyan woman
heatedly accused the demonstration organisers of being hypocritical and looking for a
photo op. She likened them to the MPs against whom they were protesting coining the
phrase ‘civil society, evil society.’ As she began to lead a small section of the protestors,
mostly women in the direction of parliament chanting “We go, we go!”

As the organisers tried to explain to the lady that the permit allowed only permitted
demonstrations within the confines of the park and she counter argued that if contained
to the park that a demonstration was no demonstration at all but rather a workshop
or conference, as it would no way affect the MPs who were sitting comfortably in parliament building a few blocks away. Saying the confrontation between the lady and the organisers was heated would be an
understatement there is no way to describe it you had to be there.

Looking back at the original communication there’s nothing in it to indicate that
the demonstration would proceed outside the bounds of the park, but clearly some miscommunication happened at some point. While I may not fully agree with the way the lady raised her the issue I get it, I get the pent up frustration that the lady felt. I get the feeling of needing to take immediate
and drastic action because our politicians refuse to listen to reasoned debate. I get ‘the
let’s take it to the street’ sentiment expressed by the irate young Kenyans present.

Yet, in the heat of the moment it’s easy to lose sight of the bigger picture. Yes, street protests
that turn violent get more press. Do people get injured? Yes. Do such protests change
things? Rarely and at great cost. Do you ever wonder what happens to the people who
get injured in protests or to the families of those that die? They often carry the burden on
their own, other protestors having returned to their day jobs.

Is freedom free? No. But maybe it’s time to flip the script, have a more Gandhian kind of
demo that doesn’t end in injury or death, a build of peaceful protests leading to climax.
A build up that impresses upon the consciousness of our politicians that things have
changed, that they can no longer take advantage us.

What are your thoughts?

January 17, 2011

22:08

Demonstration against Impunity

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January 14, 2011

16:21

Kenya Citizen’s YES Campaign in Support of the ICC

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January 12, 2011

12:11

Is the Kenyan Cabinet the institution most in need of a purge?

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By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

If recent headlines are anything to go by the current Cabinet is a haven for (alleged) criminals:

Three High-Level Cabinet officials, the suspended Industrialisation Minister, the suspended Higher Education Minister, the Deputy Prime Minister/Minister of Finance and the Head of the civil service are adversely named in the ICC Kenya case.
Two of those named by the ICC prosecutor also have cases in the domestic courts the Industrialisation Minister for abuse of office, and the suspended Higher Education Minister for fraud.
The Minster for Foreign Affairs is currently on suspension pending the outcome of investigations of financial irregularities in the procurement of the Kenyan Embassies abroad.
The Water Minister is also under investigation for irregular allocation of contracts in the Water Ministry.
The Assistant Minister for Water is facing criminal charges for incitement.
The Ministry of Special Programmes has been adversely mentioned in relation to misappropriation of funds meant for settling the IDPs.
The Ministry of Education has been cited for misappropriation of funds meant for free primary education.
Suspended Trade Assistant Minister Harun Mwau and the Minister for Internal Security have both been adversely named in connection with drug trafficking.
And just yesterday the Kenya Anti-Corruption Commission announced that an additional four ministers could face corruption charges by the end of this month.

And the list above covers only the most recent allegations of corruptions. Many previous cases of corruption remain pending e.g. Goldenberg, Triton, and Anglo-Leasing. Yet a surprising number of those linked with corruption cases both old and new remain in Cabinet. The reaction of the country’s leadership to the allegations of corruption has been disappointing to say the least.

Instead of a moving to reform a cabinet that seems engrossed in crime and impunity, there appears to be a move to dig in and stay put.

As Kenyans we must ask ourselves, is this the kind of leadership we deserve?

January 11, 2011

10:07

Strategic Plan for Kabete Constituency

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January 08, 2011

12:25

Disband Parliament before they disband everything?

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January 06, 2011

18:56

Turkana North CDF – kshs 50 million embezzled

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January 05, 2011

17:16

CDF Allocation and White Elephants – Who’s Monitoring?

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By Mzalendo Contributor – Moreen Majiwa

Every year 2.5% of all the government’s ordinary revenue is allocated to the Constituency Development Fund (CDF). Three quarters of the 2.5% is allocated equally between the 210 constituencies. The remaining quarter is allocated on the basis of a combination of the national and individual constituency poverty indexes. While 2.5% may not seem like a lot, in the 2009/2010 fiscal year 2.5% amounted to approximately Kshs 14.5 billion allocated to ensure that the fight against poverty is carried out at the constituency level by implementation of development projects that have wide spread benefits to residents of different constituencies.

The developmental results, howeverm do not match the figures. A social audit report done by TISA tells the story of a surprising number of stalled CDF projects and wastage millions of shillings. In Emabakasi, Westlands and Langata constituencies approximately 46 million
kshs has been injected into projects, which have now stalled. In addition, a significant amount of monies cannot be accounted for – for example, 6.8 million Kshs isunaccounted for from Kasarani’s CDF.

White elephants and missing funds are not the only issue plaguing the management of
CDF – nepotism is also a problem. Just last week Planning Minister Wycliffe Oparanya accused Western MPs of employing their wives and relatives to manage the funds. Such accusations are not confined to Western Province.

So what is the cost of the misuse and management of CDF? The Social Audit Report
finds that almost 50% of all CDF are redirected to purposes for which they were not
intended. So of Kshs 14.5 billion that’s Kshs. 7.25 billion misappropriated in 2009/2010
alone.

Who’s accountable? At the constituency level a CDF committee manages the funds. The
committee is made up of the area MP, the District Officer, 2 Councillors, 2 Religious
Leaders, an NGO rep, a youth rep, 2 men and women from the constituency and 3
committee members. The buck stops primarily with them.

Though the new constitution provides that county governments will eventually take up
the role of management of devolved funds such as CDF. In the 2010/2011 and 2011/
2012 fiscal years the constituency development fund disbursements will be made. Who’s
monitoring the management & expenditure of the funds?

December 23, 2010

23:44

To Whose Fund Will You Be Contributing?

» ‎ Mzalendo.com

By Mzalendo Contributor Moreen Majiwa – @mmajiwa

‘We shall not discriminate…we will mobilise all resources and hire the best
lawyers so that the suspects are fully represented at the Hague’ this was the
statement made by Kiraitu Murungi, Minister for Energy on Tuesday this week.

How much will it cost to ensure that each of the six suspects receives the best
possible legal representation at the International Criminal Court? According the
Energy Minister the each suspect will require at least Kshs. 150 million each
to hire a team of top-notch defence lawyers. At Kshs.150 million a piece for 6
persons that’s a total of nine hundred million shillings.

Where? How? And from whom is the money is supposed to be raised? Will
it be raised solely from MP’s contributions? No. Will the money be come
from the Treasury? No. Are the normal wananchi expected to contribute to a
special ‘Hague 6 defence fund’? Yes. According to the minister they want to mobilise all Kenyans who feel as outraged
as they do to support the fund.

The Energy Minister went on to explain that if five million Kenyan’s contributed
Kshs. 100 each, they would reach the goal, and that Kenyans should not think
about just a few rich people contributing for the process. He continued to explain
that a bank account managed by trustees would be opened and ‘outraged’
Kenyans could deposit funds into it. He stated that the motivation behind setting up the defence fund was neither tribal nor political and that similar efforts had been made to settle IDP’s.

However, the situation of the independently wealthy ICC suspects and the thousands of homeless, penniless IDPs could not be more dissimilar. Just five days ago, 17th December 2010, the government said that it would not be
possible to resettle all the remaining IDP’s before the end of the year, in fact it is
unlike that they will be resettled before June next year, the reason – lack of funds.

The Ministry of Special Programmes estimates 7,000 households are still in IDP
camps awaiting resettlement. Kenya Human Rights Commission has found that
IDP’s are living in camps with little or no government support. The Minister for
Special Programmes Esther Murugi says that at least Kshs. 2 billion and 20,000
acres of land is needed to resettle the remaining IDP’s.

However resettlement of the 7,000 households is just a fraction of the job that
remains with regards to resettlement of IDPs. According to the Minister the
Ministry of Special Programmes still has another 350,000 displaced persons to
cater for. This number is made up of persons whose homes and belongings
were destroyed during the 2007/2008 post-election violence but who went to
live with family and friends instead of tented IDP camps. There are a further
641 Kenyans who fled to Uganda to escape the post election violence, these
Kenyans still need to be repatriated.

How any one can draw an analogy between contributing to the defence fund and
the IDP’s defies all reason. It is difficult to see why money should be raised to
support the independently wealthy six suspects while the IDPs are still resident in
camps.

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