mzalendo :: Eye On Kenyan Parliament

• List of Kenyan MPs who are refusing to pay taxes

  Posted: June 28, 2011, 7:03 pm by admin

  
  
  

  Dear Wazalendos,

  We have put together a list capturing the names of MPs who are refusing to pay taxes and where possible their public statements, this is for posterity reasons…since we know how kigeugeu our politicians can be.

  Please help us build the list by adding a comment below or emailing us info-at-mzalendo.com

• MP taxation

  Posted: June 26, 2011, 1:16 am by admin

  
  
  

  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.

• On Ministers holding Positions in Political Parties

  Posted: June 24, 2011, 5:58 pm by admin

  
  
  

  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.

• Should use of indigenous languages be banned in public offices?

  Posted: June 19, 2011, 1:21 am by admin

  
  
  

  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?

• Continued graft in the Ministry of Education

  Posted: June 17, 2011, 11:48 am by admin

  
  
  

  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.

• Supreme Court 101

  Posted: June 12, 2011, 1:24 am by admin

  
  
  

  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.

• Parliamentary Vetting of the DPP

  Posted: June 10, 2011, 7:04 pm by admin

  
  
  

  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?

• On the Kenya govt ICC case

  Posted: June 7, 2011, 2:56 am by admin

  
  
  

  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.

• On the Okemo / Gichuru UK case

  Posted: June 3, 2011, 2:08 pm by admin

  
  
  

  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.

Blah blah blah

Fish cakes

Alas a fish cake.

Yet more fish cakes

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

The end of the fish cakes