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September 1, 2009, Nairobi: Parliament has been urged to deny the Kenya Anti-Corruption Commission funds to run its affairs. The call was made by anti-corruption lobby groups as outrage over Justice Aaron Ringera’s reappointment intensified.

Terming the president’s decision to re-appoint Mr Ringera and his deputies, Ms Fatuma Sichale and Smokin Wanjala as a “reward to ineptitude and complicity with corruption,” Transparency International country director Job Ogonda and Ms Gladwell Otieno from the African Centre for Open Governance demanded that Parliament and the KACC advisory board act fast to reverse the move.

They argued that by reappointing Ringera and his team, President Kibaki had flouted the law that vests powers to identify and recommend KACC directors for appointment in the commission’s Advisory Board and Parliament. The law only allows the President to formally appoint persons recommended and approved by the KACC advisory board and Parliament respectively.

“The Anti-Corruption and Economic Crimes Act, 2003, clearly stipulates a chain of events leading to the appointment of the director. This gives to the Advisory Board of the Commission and not to the President, the power to recommend the director. Thereafter the nominee must be approved by parliament. Only then should the President appoint the director,” the lobbyists said.

They demanded that Parliament shoots down the vote relating to the commission’s finances if the president fails to reverse his decision which it termed “mischievous”.

Under the new standing orders adopted by the House last December, Parliament can reject the votes for various ministries, government departments and agencies or even government officials whose performance it deems as unsatisfactory.

Such a move would financially cripple the affected government agency or official. Speaking at a press conference, lawyer Harun Ndubi urged Parliament to exploit its powers to deny KACC funds. “Parliament is capable of refusing to give this commission funds because it is moribund,’ said Mr Ndubi.

The lobbyists accused the president of acting with impunity by reappointing Ringera and his team against the law, noting that the move greatly undermined the independence of the commission.
“By unilaterally purporting to reappoint Ringera, Mwai Kibaki has attempted to deal the independence of the Commission and its advisory board the decisive death-blow,” said Ms Otieno.
“Aaron Ringera, who has in any case never attempted to demonstrate any independence from the Executive will now be even more clearly beholden to the president who has re-appointed him to his, slightly less lucrative, but nonetheless apparently still desirable post,” she went on.

The lobbyists recalled that the President had previously treated the KACC advisory board with contempt
and challenge it to redeem itself by rejecting Mr Ringera’s re-appointment.

They cited the President’s move to exclude the name of former Mandera Central MP Billow Kerrow when he announced the new members of the board in June this year.

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September 1, 2009, Nairobi: Parliament has been urged to deny the Kenya Anti-Corruption Commission funds to run its affairs. The call was made by anti-corruption lobby groups as outrage over Justice Aaron Ringera’s reappointment intensified.

The success or failure of the nation’s land reform process will hinge on the outcome of the current drive to evict people who have settled in the Mau, according to a new report.

It further says failure to carry through with the Mau evictions will put the entire national reconciliation process in danger of failure because of the centrality of land as one of the perceived causes of the post-election violence.

New report

The report commissioned by the African Centre for Open Governance (Africog) says implementation of the evictions in the Mau, which was one of the proposals made by the Commission of Inquiry into Illegal Allocation of Public Land (popularly known as the Ndung’u Commission), will prove whether there is political will to carry through with the reform agenda.

The Mau Forest controversy has dominated headlines in the past week with Cabinet ministers divided on how to carry out evictions from one of the region’s most important water catchment areas.

But the new report, Mission impossible?: Implementing the Ndung’u Report, warns that politicising the process will endanger the implementation of the far-reaching changes proposed by the Ndung’u Commission.

The commission’s findings, published in 2004, inform a large part of the draft national land policy recently approved by the Cabinet and also tally with the findings of the Mau Forest task force appointed by Prime Minister Raila Odinga.

Land and discontent over its distribution and ownership was a driving factor of the post-2007 election violence, the Africog report reads in part.

Not implementing the Ndung’u recommendations means that misuse of public land and the resultant damage – economic, environmental and socio-political – continues unchecked. This could fuel greater violence in 2012.

Among the sections of the Ndung’u Report civil society organisations want implemented fast are those dealing with allocation of forestlands, game reserves, wetlands and other protected areas.

Wide abuse

The Ndung’u Commission found that there had been wide abuse of presidential discretion in apportioning land particularly in protected areas. It called for the immediate cancellation of all these allocations.

However, it also recommended that some form of compensation be given to third parties who bought land from people who had abused their positions in government to gain titles to protected areas, a proposal also backed by the PM’s task force on land.

Speaking at the launch of the Africog report, former chairman of the Institution of Surveyors of Kenya Ibrahim Mwathane said full implementation of the national land policy was essential to safeguarding Kenya’s future.

By SUNDAY NATION Team

The success or failure of the nation’s land reform process will hinge on the outcome of the current drive to evict people who have settled in the Mau, according to a new report.

It further says failure to carry through with the Mau evictions will put the entire national reconciliation process in danger of failure because of the centrality of land as one of the perceived causes of the post-election violence.

Reports of a generous send-off package for the former commissioners of the defunct Electoral Commission of Kenya are the latest example of a lack of real recognition by government of the precarious situation in which Kenya finds itself.

As holders of high constitutional office, the remuneration of the commissioners cannot be varied to the disadvantage of the holder of the office.

However, it is unlikely that their original terms of service would have contemplated the unprecedented basis on which these payments are being negotiated, and at a time when they are no longer in office.

It is regrettable that investigating and establishing the culpability, or lack of it, of the commissioners in relation to alleged electoral fraud, is not being prioritised in the same way as the payments.

This is despite the Attorney-General’s directive to the Commissioner of Police last November to “carry out comprehensively and expeditiously criminal investigations into suspected offences alleged to have been committed by the chairman, the vice-chairman, commissioners and specified staff of the Electoral Commission of Kenya (…)” in response to a complaint by Kenyans for Peace with Truth and Justice (KPTJ).

THE CONCLUSION BY THE KRIEGLER Commission (IREC) last September can safely be qualified as cursory. However, IREC also made valuable recommendations on radical reforms and the creation of a new electoral management body “with a new name, image and ethos committed to administrative excellence in the service of electoral integrity…”.

But instead of a fresh start capable of renewing Kenyans’ deeply damaged confidence in elections as a cornerstone of democracy, what we have seen is the unrepentant arrogance of former commissioners and the shambolic process of establishing an Interim Independent Electoral Commission.

It is difficult to see how the granting of generous financial rewards to commissioners can contribute to fostering a culture of excellence and accountability in a future electoral management body.

On the contrary, the message going out is that no matter how dismal, negligent or even criminal your performance may be, you will not only never be held to account for it, you will be amply rewarded.

As reported in the Africa Centre for Open Governance’s new publication, Free for All? the reports of the Controller and Auditor-General show the numerous economic and political governance challenges that plagued the ECK.

Chief among these is the political patronage that led to a pervasive culture of impunity in spending both at the Nairobi headquarters and at district offices.

Between 1991/92 and 2006/07, the ECK was entrusted with Sh15.8 billion with which to undertake various electoral activities. During that period, Kenya held three general elections at regular five-year intervals, the 2005 referendum, and a number of by-elections.

In various reports, the auditor took issue with how the ECK spent more than Sh1.93 billion – roughly 12 per cent of its disbursement for the period.

The most blatant improprieties at the ECK during this period were perpetrated by the commissioners themselves. Over a span of seven years from 1991, commissioners were direct beneficiaries of questionable expenditure amounting to over Sh148 million through irregularly-paid sitting and subsistence allowances, and wasteful hire of cars.

So frivolous was the management of funds that it was common practice for ECK commissioners to pay themselves sitting allowances while also receiving subsistence allowances for every day of the year including Saturdays, Sundays and public holidays, and in some instances, when they were out of the country.

A commissioner who received an unauthorised Sh926,600 ex-gratia refund of medical and travel expenses for treatment at a Nairobi hospital and abroad, also received full sitting and subsistence allowances while incapacitated.

The ECK provided no explanation as to why subsistence allowances – paid to enable an officer to “subsist” away from his or her duty station – were paid together with sitting allowances.

WHEN PUT TO TASK BY THE PARLIA-mentary Accounts Committee regarding these irregularities, the accounting officer’s explanation was that it is the ECK’s prerogative to decide whether or not to maintain records of its meetings.

The officer explained that since ECK meetings had no quorum, a sitting can be by one or two members, or the whole commission; which justifies payment of sitting allowances for 365 days. Between 1997 and 2003, the auditor estimated that Sh29.4 million was probably lost.

The radical reforms recommended in the Kriegler Report highlight the need for overall administrative reforms. For a new electoral body to effectively execute its mandate, the requisite administrative and governance structures must be in place to minimise opportunities for corruption and abuse of power.

By GLADWELL OTIENO

Ms Otieno is the executive director, Africa Centre for Open Governance (AfriCOG).
Reports of a generous send-off package for the former commissioners of the defunct Electoral Commission of Kenya are the latest example of a lack of real recognition by government of the precarious situation in which Kenya finds itself.

As the government prepares to hand severance pay to members of the defunct Electoral Commission of Kenya, a new report says its bosses lived like kings as they managed some of the most costly elections in the world.

The report, based on an analysis of government audit reports, says that the ECK grossly mismanaged funds it was allocated.

The Controller and Auditor-General took issue with how ECK spent Sh1.93 billion of the Sh15.8 billion it was given between 1991 and 2007. This amount would have provided Kenyans with 193 fully equipped dispensaries or 64 fully equipped health centres.

The analysis by the Africa Centre for Open Governance (Africog) indicates that ECK commissioners were irregularly paid Sh219 million, which could have paid for and equipped 22 dispensaries or seven health centres.

The report shows that the commissioners were, for instance, paid thousands of shillings every month in sitting allowances even when they did not attend meetings.

The reports from the offices of the Controller and Auditor-General say the former ECK chairman and his deputy received monthly sitting allowances of Sh63,00 and Sh42,000 respectively.

A senior ECK official, who appeared before the Parliamentary Accounts Committee in 1996, said it was the commission’s prerogative to decide whether to maintain records of its own meetings.

“The officer explained that since ECK meetings had no quorum, a sitting can be by one member, two members or the whole commission; which justifies the payment of sitting allowances for the 365 days of the year,” read the report.

Ex-gratia refund

The Africog analysis adds that a commissioner who received Sh926,600 ex-gratia refund of medical and travel expenses for treatment at a Nairobi hospital and abroad also received full sitting and subsistence allowance for the same period.

The auditors found numerous cases where allowances were paid when the authenticity of the claims could not be confirmed.

By 1996, the commissioners had received Sh29.7 million in undeserved sitting and subsistence allowances while irregular payments of accommodation expenses totalled Sh33.79 million from 1993 to 1997.

The Africog report faults the procurement of spares, fuel and stores. It notes that orders for 334 polling booths worth Sh2.04 million were placed in January 1998, while elections had taken place in December 1997. ECK was headed by Zaccheus Chesoni and Samuel Kivuitu during the period under review.

Not only did commissioners get undeserved allowances but they were also driven in top-of-the-range vehicles. In the 1996/97 financial year, ECK purchased 12 four-wheel-drive Land Rover Discoveries at Sh29.7 million. This was half of what the commission was using for “unnecessary hire of cars for the commissioners”.

“At the average rate of Sh2.5 million per vehicle, the amounts spent on hiring luxury vehicles during the 1996/97 financial year could have bought another 13 such vehicles,” reads the Africog analysis.

The Kriegler team, which examined the 2007 elections and recommended that ECK be wound up, questioned the commission’s financial efficiency in comparison to the cost of running elections in the rest of the world.

The team reported that elections cost $1-3 (Sh80-240) per elector in the United States and most European countries. In most African countries, the cost ranges between Sh60 and Sh250. According to the Kriegler report, the cost of the 2007 election in Kenya was $13.74 (Sh1,100) per voter.

In November 2008, Sunday Nation reported that ECK paid Sh110 million for T-shirts that were never used during the 2007 election. The Public Procurement Oversight Authority also queried the decision of ECK to approve single sourcing for some Sh3.5 million in key services.

Tax-free pay

The 21 ECK commissioners were among the best paid civil servants in Kenya, each earning about Sh400,000 in salary and allowances, while Mr Kivuitu earned Sh513,000 in salary and allowances. The pay was tax-free.

The commissioners were entitled to a security officer, a driver, a cook and a house allowance of up to Sh50,000. In February, the Cabinet approved a Sh68,701,260 sendoff package for former commissioners.

As Kenya gears up for electoral reforms, Africog advises that voter registration be linked to other population databases such as that used for issuing national identity cards.

“Measures must be taken to ensure that members of the Parliamentary (sic) Accounts Committee and Public Investments Committee are beyond reproach by amending standing orders to bar anyone with an unresolved public audit query from sitting on the committees,” reads the report.

By OLIVER MATHENGE
As the government prepares to hand severance pay to members of the defunct Electoral Commission of Kenya, a new report says its bosses lived like kings as they managed some of the most costly elections in the world.