mzalendo :: Eye On Kenyan Parliament

• On the Budget – What should happen under the new constitution

  Posted: May 27, 2011, 11:17 pm by admin

  
  
  

  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.

• Ikolomani By-Election: The experience of an Election Observer

  Posted: May 25, 2011, 11:37 am by admin

  
  
  

  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.

• Missing Billions…

  Posted: May 20, 2011, 8:31 pm by admin

  
  
  

  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.

• Resistance to the JSC nominees

  Posted: May 17, 2011, 7:49 pm by admin

  
  
  

  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).

• What’s Happening at Kenya’s Borders?

  Posted: May 13, 2011, 1:15 am by admin

  
  
  

  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?

• Thoughts on the Chief Justice Interviews

  Posted: May 11, 2011, 4:37 am by admin

  
  
  

  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?

• Cabinet Reshuffle?

  Posted: May 7, 2011, 1:41 pm by admin

  
  
  

  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.

Blah blah blah

Fish cakes

Alas a fish cake.

Yet more fish cakes

Guess what ... yeah ... fish cakes.

The end of the fish cakes