Address by Wanjiru Gikonyo, National Coordinator, The Institute for Social Accountability (TISA) on Right to Information Day 28th

, September, 2010- Public Forum hosted by ICJ-Kenya The Institute for Social Accountability (TISA) is a civil society initiative committed towards the achievement of sound policy and good governance in local development in Kenya, to uplift livelihoods of, especially, the poor and marginalized. TISA works through practice learning, capacity building and direct advocacy actions. TISA has been operational since March 2008, and is a locally registered trust. We were previously known as the CDF Accountability Project.
To The Chairperson and Executive Director of ICJ, The Honourable Ekwee Ethuro, Distinguished Guests, Ladies and Gentlemen, it is an honour to be here today, albeit one I sadly accept. An honour because it is gratifying to be able to share my professional experience in this area with colleagues and men and women who are equally committed to reform and transparency in our country. Sad, because I made a similar presentation on access to information in devolved funds exactly two years ago in 2008 at this venue and there have been no significant gains in the FOI cause since then. Numerous platitudes and promises have been given but practical experience demonstrates that situation on access to information in some cases is worse today than it was two years ago.

Welcome Address

Be that as it may, I will not spend time discussing the dire state in which our local governance is in, systemic corruption in local development funds, that is in my paper and we hear it every day on the news.

I prefer to focus on the opportunities opened up for good governance under the New Constitution of Kenya and I will make suggestions on how these rights for justice and accountability can become a reality and change the face of governance in Kenya in less than 10 years. 225. states Parliament shall enact legislation to ensure both expenditure control and transparency in all governments and establish mechanisms to ensure their implementation.

The NCK of Kenya is very clear in its objects (art. 174) in emphasising transparency, promotion of equitable social and economic development, the right of citizens to manage their own affairs participate in the exercise of powers of the state and so forth. Art 35. Also grants every citizen to information held by the state.
The Institute for Social Accountability Tel: +254 020 444 3676; P.O. Box 48353 – 00100 Nairobi info@tisa.or.ke www.tisa.or.ke

2

» Sustainability- citizens are ultimately partners in development and their involvement is necessary for the sustainability of development initiatives.

» Oversight- in monitoring project outcomes and whistle blowing where needed;

» Planning process- in the identification of local development needs, contribution into local level planning processes, contribution into the budget process, budget hearings; in this especially the middle and professional class needs to get involved. Implementation – as beneficiaries of development projects citizens have a role in monitoring the implementation process and many schemes have established Project management committees for this purpose;

» Voting for political representatives- Kenyans will be a very busy voting nation having to elect senator, government, assembly, president, MP and likely members of local development committees local leaders; we need to choose good leaders and to do so we need information on the candidates otherwise we can only choose by their looks, their bling, the Sonko factor.

So how will these very strong provisions benefit us at county level? Let’s first look at what our role as citizens will be:

Point 1. The Middle and Professional Class needs to get involved in local development

The NCK gives us a very strong frame wok for accountable local development, but it will only work if we in the middle and professional class get our healthy backsides and get involved. Not win contracts from country government, but to demand service delivery from them.

The realisation of justice, the breaking of patrimonial political strangleholds either comes through an active enhancement by the middle and professional classes in the agitation for justice through involvement in simple processes like local budgeting and accountability hearings, or comes through violent revolution by the oppressed majority when they get tired of the platitudes and the speeches. 2007 PEV was only a taste of what will happen in Kenya if we as the professional class refuse to engage in our local development to ensure justice and accountability there. Parliament needs to give us very strong laws and it appears they are in a very big hurry to do so judging by the speed with which present events are taking place. And this is positive because if they give us some key laws and reform key institutions over the next 12-18 months this Parliament will change the course of our Nation’s history and will allow us to realise the benefits of the NCK. Good laws will allow counties to start off on strong footing and by 2017 our local development landscape will have radically improved for the better. If however, Parliament gives us weak laws then the proposed Counties will become an expensive exercise in mis-development.

Point 2. Parliament needs to give us good laws

I will now stress upon a number of laws that are critical to safeguard the 2012 elections and to set the legal framework for the commenced of county government in 2013.

Chapter 6 of the NCK is devoted to Leadership and Integrity, and in it the CoE sought to provide tools with which we can weed out morally bankrupt leaders from positions of authority. Firstly they give KACC constitutional strength and rename it the Independent Ethics and Anti Corruption commission (IEACC). They then task it with enforcing the leadership code which is largely what is contained in the present PPOA2003.

Point 3. Scrutiny of political candidates and public officials

At present the enforcement of the PPOA is the mandate of respective service commissions and there is no oversight for the same. Oversight for management of devolved funds has not been dealt with. The virtual absence of an enforcement structure has undoubtedly failed, and we have in public and political office all kinds of characters who should not even be eligible to run for public office or vie for political seats. The NCK under Chapter Six aptly puts this function under the IEACC.

The Institute for Social Accountability Tel: +254 020 444 3676; P.O. Box 48353 – 00100 Nairobi info@tisa.or.ke www.tisa.or.ke

3

KACC is now mandated with the enforcement of the integrity code and needs to be fully empowered to vet political and public officers in the run up to 2012. This would include;

2.1 Mandatory Background Checks to weed out unsuitable candidates from public office- KACC should be empowered to undertake a mandatory background check to enable any candidate to run for nomination to political office. Senior public officials above the level of first secretary should be equally vetted. Lower levels should be screened through internal vetting procedures. Such background checks should include the following criteria: links with militia, drug cartels and corruption. Alongside existing criteria, candidates with a history of domestic abuse and sexual abuse should also not be eligible. 2.2 Make assets declarations public (e.g SA assets positions are public but value is held confidentially can be disclosed in prosecution cases, etc) 2.3 All campaign financing to have ceilings, sources of campaign financing to be proactively disclosed. KACC to proactively scrutinize campaign financing. Give it the power to blacklist. 2.4 In collaboration with the Independent Electoral and Boundaries Commission, give KACC the power to blacklist political and public candidates. The mandatory profiles should be made public, reasons for the blacklist to be made public. In 2012 only clean candidates should be allowed to run for office. Since 2002, reforms in Kenya have sought to establish a strong legal and regulatory framework in public resource management. These initiatives have cumulatively stressed upon sound principles with a view to enhancing transparency in local governance in Kenya:

Point 4: Open up Procurement

The exclusion of the politicians from the procurement cycle; Reduction of the powers of the Minister for finance in procurement matters; The PPOA has assumed more powers in public procurement policy; Prohibition of any public servant or anybody holding a public office/ their spouses/ relations from participating in any public procurement; Democratization of the procurement process through various committees; Procurement entities are expected to establish tender committees that should operate fairly independently in the decentralized system; The committees are expected to establish efficient and accountable procurement systems; The Public Procurement Complaints Review and Appeals Board (PPCRAB or Board) has been set up to adjudicate complaints that arise in the procurement process; etc. However, the given reforms have left a number of gaps, which consistently negate the impact of the intended reforms. Those charged with the accountability for public resources should ask themselves; why despite all the legal reforms is corruption rampant? What fundamental tenants have previous reforms overlooked that allow corruption to thrive?

The chief challenge in the realisation of accountability stems from the locus from which national institutions engage in the discourse. National institutions typically look at governance processes from their perspective while good governance will be better achieved by considering processes from the citizen’s point of view. National stakeholders need to realise that the citizen is primary stakeholder in the management of public resources as a payer of taxes and the primary service beneficiary.

a. Procurement policy and laws should recognise citizen role and rights

The role and rights of the citizen should duly be recognised in public resource management in the Procurement policy and law. There should be clear mechanisms for engaging local communities in procurement matters and other activities. The law should recognise citizens social audits to ensure that all procuring entities engage in transparent procurement.

The Institute for Social Accountability Tel: +254 020 444 3676; P.O. Box 48353 – 00100 Nairobi info@tisa.or.ke www.tisa.or.ke

4

b. Secrecy clauses in PPOA and ACEA, Procurement law should be deleted and replaced with transparency clauses
Art.44. PPD, Art.41 PPOA, Official Secrets Act all contribute towards corruption;

The most persistent barrier to combating corruption is the culture of secrecy in public procurement and associated government functions. Without an open information policy other reforms are simply window dressing as secrecy allows collusion, bribery of integrity officials, and compromise of judicial processes. Presently procurement records are held as confidential. In this way tender and procurement agreements and operations are not open to public scrutiny, effectively locking out citizen oversight as envisioned in the public processes especially local governance such as the CDF, LATF, ESP and so forth. Supplier information is maintained as confidential allowing government officials and politicians to conceal their interests in local contracting companies, in contravention of the PPD and PPOA. This prevents genuine contractors from benefitting from local contracts allowing the political elite to capture these funds and squeezing genuine businesses out of the market.

For instance procurement records such as work plans, contractor agreements, bills of quantity, and so forth are routinely withheld from the public undermining the public’s ability to oversee local development projects some of which they proposed in the first place.

Recommendations

» Procurement records should be made open to the public;

» Detailed contractor /supplier profiles should be made available to the public;

» Public officer wealth declarations should be made public. The heavy penalties provided for divulging information under the PPOA are punitive, and undermine the very sprit of the act.

» Routine offences such a poor record keeping, withholding of information and so forth should be detailed and dealt with by a local redress officer in charge of discipline, within a specified time » Contractors who offend procurement guidelines should be blacklisted, and the list made public. Failure to act against procurement offences should be actionable. » Failure by responsible officers to act should be actionable. » A code of conduct for local fund committees should be established. » Procurements meetings should be open to the public. Monthly, scheduled, public, procurement meetings where new bids are announced, tenders opened and evaluated tenders awarded is a simple way to circumvent the collusion. The ESP tender process showed that this is possible.

» The list of offences and corresponding penalties should be published and displayed in the relevant office. » Procurement laws and specific fund laws need to harmonised to provide for stiffer penalties for breaches to make it unattractive.

» As per the Act a discipline roll should be maintained for both officers and contractors and available to the public for scrutiny.

Point 5: Information management and dissemination needs to be made effective

In our work we utilise social audits to monitor performance of local development funds such as CDF, LATF, ESP, and bursary. We have just completed work in Nairobi and our experience in information gathering mirrors experiences in other part of the country. Officials do not believe citizens have a right to know how much is being spent on their local development projects, to the extent that project management committees are not given basic information regarding the projects they are supposed to monitor. That attitude can only being change when citizens routinely ask for written documentation in their monitoring work. However, in local governance we find that funds such as CDF have very poor information management
The Institute for Social Accountability Tel: +254 020 444 3676; P.O. Box 48353 – 00100 Nairobi info@tisa.or.ke www.tisa.or.ke

5

» Calendar of events on the county/sub county process should be displayed widely, etc.

» Tell people what they want to know: Processes should be explained through posters .eg. organograms, how to apply for a bursary, such information should be posted up in the relevant office, website, resource centre

» Budget process should be accompanied by financial estimates, revenue and expenditure records

» Avoid the development of newsletters by govt bodies which is used as a substitute for availing the relevant information in favour of the PR version which is often a wasteful and overpriced strategy

» Make information management and compliance to records keeping requirements statutory and actionable.

capacity, so often times the records you seek as the public are not there. Unfortunately information management is not being taken seriously, heads don’t roll for lack of compliance to record keeping requirements, yet this is one of the biggest weaknesses in local governance accountability and opens up avenues for corruption. Several MP’s destroyed their CDF project files as they exited office in 2008. No doubt others will do so in 2012. The laws on information management needs to

» There is a need to get rid of the duplication of administrative functions caused by competition between central governments provincial administration, nation assemblies CDF, even local PA, NA, LA out of counties. The existing staff should be redeployed within the county and sub county/ward level as per function.

» There is a need to harmonise, consolidate resources. Presently resources are spread too thin across to many funds which leaves no money for effective management of the same, eg. no cash for M&E, no cash for capacity building officers on procurement.

Ultimately RTI will be effective only if the larger reform framework is effective. On the widest scale the extent to which judicial, police and electoral reforms are effective will determine the success of the counties.

Point 6: Overarching Concerns

At the country level there is an urgent need deal with the present problems in the sector many of which have been caused by political interference. For instance:

I personally have a problem with the FOI bill 2007. It proposes to create an FOI bureaucracy whereas we are trying to get rid of unnecessary bureaucracy in local governance. It proposes to establish information officers as opposed to making responsible officers directly responsible through their service charter, regulations, operational guidelines. RTI needs to be made deliverable under performance contracts and more importantly make it actionable within the internal disciplinary mechanism.

Is FOI law the panacea?

Whereas the proposed FOI law dealt comprehensively with the laws that need to be repealed such as the official secrets act, I propose we rethink the vehicle for attaining this right. For instance, environmental laws in most countries have proactive and powerful RTI provisions, but these are rarely used due to low awareness of the same. I personally prefer a sectoral approach to RTI.

It is not our destiny to be encumbered with relentless poverty and desperation. It is not our destiny to be shackled by poor leadership.

A Personal Note

Kenya and indeed Africa will emerge, we must believe and behave as if we have already arrived. We will emerge one step at a time. We must view ourselves as we should be and will be if we, the professional class, do what we ought today; to safeguard and prosper our home, our town, our county, our nation and our continent; not for our benefit, but for the benefit of those who are to come.

The Institute for Social Accountability Tel: +254 020 444 3676; P.O. Box 48353 – 00100 Nairobi info@tisa.or.ke www.tisa.or.ke

Sign up to vote on this title
UsefulNot useful