To End Corruption in Kenya It is Time to Audit Kenya’s Ministry of Finance As Directed by Parliament: No Audit, No More Money from Kenyan Taxpayers

TO END CORRUPTION IN KENYA IT IS TIME TO AUDIT KENYA’S MINISTRY OF FINANCE AS DIRECTED BY PARLIAMENT: NO AUDIT, NO MORE MONEY FROM KENYAN TAXPAYERS

Corruption and impunity are king in government of Kenya circles. Maize, Oil, Guns, Grand Regency Hotel, Goldenberg, the phantom Ken Ren Fertiliser Factory, Anglo Leasing, Free Primary Education, the list goes on and the institutional rot is obvious.

Independent audits have recently exposed crooked transactions in key Kenyan government ministries including Education, Agriculture, Special Programmes and the Office of the Prime Minister. But there is one important independent forensic audit that although ordered by Parliament, eight months ago appears stalled. It is the biggest forensic audit in Kenya’s history and it is meant to investigate a three year period of the National Budget because following exposes by Mars Group in April 2009 Parliament discovered that there was 10.7 billion shillings missing in the Supplementary Budget submitted to it by the Office of the Deputy Prime Minister and Ministry of Finance. We believe that this forensic audit would have discovered and stopped even larger scandals than those titillating the Kenyan press. Despite the obvious connection to today’s corruption scandals, and for unknown reasons, few are demanding that this audit finally kicks off. Here’s the story of Kenya’s forgotten ten billion shilling scandal.

AUDIT THE TREASURY

On 13th May 2009 the Report of the Joint Committees on Finance Planning and Trade and the Budget Committee on the inconsistencies contained in the supplementary estimates of the Financial Year 2008/2009 was tabled in Parliament and was unanimously adopted by a Motion of the whole house.

Moving the Motion Hon Chris Okemo on behalf of the Joint Committees told the National Assembly that their investigation into the Supplementary Budget had identified a total discrepancy of Kshs10,763,446,275 arising from 200 Items affecting the recurrent expenditure of 36 Ministries and departments. Clearly the problem was huge.

Hon Okemo told the National Assembly that the information was derived directly from the supplementary budget. We quote verbatim:

“…I would now like to go to the issue of discrepancies, which has been the subject of the Committee’s proceedings. The following people appeared before the Joint Committee and gave valuable evidence: The hon. Gitobu Imanyara, MP; the Deputy Prime Minister and Minister for Finance, MP; the Permanent Secretary, Treasury, and his Budget Officers; Mwalimu Mati of Partnership for Change; Jayne Mati, Partnership for Change; Cyprian Nyamwamu, Partnership for Change, and the Controller and Auditor-General.

Madam Temporary Deputy Speaker, we examined the evidence from hon.Imanyara in great detail, and found the data acceptable and very helpful to the proceedings of the Committee. That information, irrespective of its source, came directly from the Printed Supplementary Estimates.”

The Joint Committee Report contained several important recommendations which were unanimously adopted by the National Assembly. Hon Okemo told Parliament that the Joint Committee had made recommendations and again we quote verbatim

“Madam Temporary Deputy Speaker, having looked at all this evidence and having laid the background on how budget-making is done under the provisions of the Constitution, and having found out that there were discrepancies at some point, I would now like to read out the recommendations of the Joint Committee.>

The first recommendation is that since there are inconsistencies in the Supplementary Estimates, they should be withdrawn and the correct Estimates resubmitted to form the basis for the Appropriation Bill which will be brought before this House.

Secondly, an independent forensic audit should be done by an independent body to look into the three years that have been under the GFS system to determine whether there might have been other inaccuracies or inconsistencies in the last two years in addition to the current year.

The third recommendation is that the Fiscal Management Bill is long overdue and I am glad to see that we have on the Order Paper, the Motion to discuss the Memorandum of His Excellency the President on objections to the Fiscal Management Bill. I believe that we shall carry out that exercise with speed and that it will receive the support of everybody, including the Government side. This is because more transparency, interrogation and participation in the budget-making process will lead to a Budget that all can be happy and comfortable with. That Budget will reflect the real priorities as spelt out by the Government.”

The first recommendation was addressed and the Minister for Finance withdrew the Supplementary Estimates first laid on the Table of the House on 22nd April, 2009, and re-submitted new Supplementary Estimates.

The third recommendation was addressed when the Fiscal Management Act came into effect on 19th June 2009.

The second recommendation (that there should be an independent forensic audit) has not been acted on at all. And yet since May 13th 2009, several ministries have been implicated in financial scandals and acts of corruption and financial mismanagement have been reported and investigated by independent forensic audits.

In moving the motion to adopt the report on behalf of hon. Members of the Joint Committee on Finance, Planning and Trade and the Budget Committee, Hon Chris Okemo also told the National Assembly why an independent forensic audit was necessary:

“… Madam Temporary Deputy Speaker, it is not, therefore, very easy to be able to conclusively say here that the discrepancies do not show whether money was misapplied or not. That is why, as one of our fundamental recommendations, we have said that there has to be a serious, in-depth forensic audit into all the data that appears in the current financial year as well as in the last two previous years. However, the letter we have received from the Controller and Auditor-General is very specific. In part, it says as follows:-

“As may be observed above and in the Appendix, the difference of Kshs 10,763,446,275 was caused by unreconciled discrepancies between the provisions shown in the Printed Estimates for 2008/2009 against various Votes and those appearing in the Supplementary Estimates for the period against the same Votes.”

The third comment in the letter I have referred to is as follows:-

“The difference of Kshs 10,763,446,275 does not, however, constitute any loss or misappropriation of public funds.”

I am merely quoting a letter from the Controller and Auditor-General, addressed to the Clerk of the National Assembly.

Madam Temporary Deputy Speaker, the evidence, therefore, on the basis of the data that was available to us, that was talking about discrepancies, seems to suggest that the differences that arise as a result of non-reconciliation of Items does not lead to loss of funds or misappropriation of funds.

However, because of the time constraint, and because of the volume of the data that was involved, it must be appreciated by this House that those numbers have far reaching implications as far as the economic development of this country is concerned, and as far as the allocation of funds in this country is concerned. We want to satisfy ourselves that since the introduction of the Government Financial Statistics (GFS), that is an international standard for coding, which was introduced three years ago, all the figures contained in the Printed Estimates and Supplementary Estimates for the three years in question are correct. We want to satisfy ourselves that no such errors may have been caused, or that no misappropriation or misapplication of funds may have taken place. ….“

The Chairman of the Budget Committee, Hon Martin Ogindo in his submissions to the National Assembly re emphasized the necessity of an independent forensic audit in these terms:

“ The second issue that the Committee was to inquire into was as to whether funds could have been misapplied. To this end, as has been indicated by the Chairman, the volume of data involved and the time span that the Committee had, it would not have been possible to determine that. In this context, as has been articulated by the Chairman, the Joint Committee has recommended a forensic audit to be done.

Maybe, for all to know what we are talking about, a “forensic audit” is an investigation of a fraud, a presumptive fraud or a suspected fraud with a view of gathering evidence that can support the figures. We would like to have a forensic audit in the budget-making process in this country to determine whether, indeed, there is compliance with the regulatory requirements. As was submitted to the Joint Committee by the Deputy Prime Minister and Minister for Finance, this error could have been caused by a computer bug or a deliberate act of computer operators. What we noted is that, indeed, there was a deliberate commission of an act of error. To this end, it will be important that a system audit also be carried out to determine or evaluate the objectivity, inadequacies, competence and due diligence of the institutions and persons engaged in the budget-making process.

Madam Temporary Deputy Speaker, over and above that, we would expect a forensic audit to reconcile the budget provisions in the Printed Estimates, the Vote Book balances and entries, the Supplementary Estimates, the Consolidated Fund Services (CFS) items and Exchequer issues for the 2008/2009 Financial Year. It is a point that we will be sure that no funds have been misapplied. Towards that end, the Committee strongly recommends for a forensic audit.”

Hon Ogindo went on to describe the essence of the independent forensic audit thus:

“Madam Temporary Deputy Speaker, the whole essence of a forensic audit is to determine whether what we are using as a Budget programme is, indeed, reliable. Secondly, it is to determine through reconciliation, which we could not do because of shortage of time and lack of expertise, whether funds could have been misapplied.”

In view of the current corruption revelations, the Partnership for Change is of the view that the independent forensic audit of the National Budget as resolved by the National on May 13th 2009 is urgent and particularly so because the Government is preparing to bring a supplementary budget before the house soon.

The resolution by Parliament calling for an independent forensic audit into the National Budget for the last three years was arrived at after the National Assembly satisfied itself that an independent forensic audit was necessary to be sure that no public funds had been misapplied pursuant to what Treasury called a Kenya Shillings 10.7 billion computer error.

An independent forensic audit as directed by the National Assembly would determine or evaluate the objectivity, inadequacies, competence and due diligence of the institutions and persons engaged in the budget-making process. Further such an independent forensic audit would have discovered any systemic or deliberate errors, theft, or mismanagement of the taxpayers’ resources and would have identified those responsible for such errors, theft or loss of public funds. The independent forensic audit would have certainly captured the misconduct of the Agriculture and Education Ministries. It should be noted that over 8 billion shillings of the 10.7 billion shillings identified in the supplementary budget ‘computer error’ inquiry was actually in the budget of the Ministry of Education which has recently been embroiled in scandal over the Free Primary Education subsidy.

The independent forensic audit is the only way in which to ascertain that Kenyan taxpayers’ funds are being used for the purposes approved by our representatives according to the votes in the National Budget. We trust that the National Assembly will reaffirm that the Government does not have its own money and that all its funds save for those borrowed belong and are given to the Government by Kenyan tax payers. As such the government must be accountable to the Kenyan citizens through the National Assembly and the independent forensic audit is a means to secure such accountability.

Members of Parliament are paid to secure the peoples interests. We cannot continue to pay taxes to a Government that steals our sweat while our children continue to suffer. If the Independent Forensic Audit does not commence immediately, then the Kenyan public will have the moral authority to stop remitting taxes to the Government.

We have therefore commenced a 100 days campaign for fiscal accountability.
We will therefore remind Parliament of its obligation and duty to Kenyans that they represent.

The Partnership for Change is petitioning parliament pursuant to section 205 (2) of the new standing orders. We are asking that Parliament

1. Resolves that the Implementation, Budget and Finance Committees of Parliament urgently work to ensure that an independent forensic audit into the National Budget for the financial years 2006/2007, 2007/2008 and 2008/2009 is commenced in terms of implementing the resolution of the National Assembly of May 13th 2009

2. Hears our Petition and acts on it as one of the means of ending fiscal mismanagement in the Government of Kenya

3. Takes any other authorised action to ensure that the resources for such an independent forensic audit are availed and that the forensic audit is completed in good time to ensure that the next National Budget is clean and economical.

4. Resolves that an independent forensic audit be commissioned immediately and be completed before the next supplementary budget is brought to the National Assembly for approval by our elected representatives.


Kenyans can download a copy of the petition here.

Collect 20 signatures and drop off the completed petition forms to:

The Kenya National Commission on Human Rights (KNCHR)
1st Floor,
CVS Plaza,
Kasuku road, off Lenana road,
Nairobi, Kenya

Kenyans Are Allowing Politicians to Play a Deadly Game of Russian Roulette with Their Lives.

Kenyans are allowing politicians to play a deadly game of Russian roulette with their lives.


Russian roulette is a potentially lethal game of chance in which participants place a single round in a revolver, spin the cylinder, place the muzzle against their head and pull the trigger. A single round is placed in a six-shot revolver resulting in a 1/6 (or approximately 16.67%) chance of the revolver discharging the round. Regardless of any player’s position in the shooting sequence, his initial odds are the same as for all other players. The revolver’s cylinder can either be spun again to reset the game conditions, or the trigger can be pulled again. The initial probability of each player for being killed is 1/6th, but the probability of being killed changes every time the trigger is pulled. The second player has a 1/5th (20%) probability of being killed, and the probability of the third player 1/4th (25%). Until player number 6 when the chance of being killed is (100%) assuming the bullet properly works.

This is the game that Kenyan Politicians are now playing with Kenyans and the future of this great Country. It is assumed that the politicians are taking turns spinning and firing the revolver until for Kenyans the chance of being killed is 100% when chaos erupts in Kenya Again.

Politicians are hoping that by re spinning the chamber, the game could continue indefinitely and Politicking could continue until only a few survive to 2012. But will the game last? And what if the bullet discharges as it surely will. Russian roulette guarantees someone will certainly die. Even the players are not in control of the outcome.

The only way Kenyans can evade this certain and very sudden death is to stop playing this senseless game. We have seen the dangers, all Kenyans remember when the Electoral Commission of Kenya pulled the trigger on December 29th & 30th 2007. Chaos of a magnitude never seen in Kenya erupted. Over a thousand Kenyans died, over half-a-million lost their homes and property, thousands were raped and our economy collapsed in 60 days.

Only then did Kenyans decide they had seen enough and rose to demand a cease-fire – an end to the game of  Russian roulette which politicians were playing with their lives. We opted for a negotiated agreement called the National Accord. We wanted a civilised option to sorting out our problems; Russian roulette was no longer palatable.

It did not take long after the signing of the National Accord and sorting out the power sharing agreement,  before the politicians decided it was time to play again. The politicians are now taking shots. The special tribunal is dying in Parliament, non- implementation of the National Accord reforms, No voters register, and corruption is at an all time high, campaigns for 2012 in high gear… are we at the sixth shot? Bang… and we’re out!

Before, they take that last shot, Kenyans must say, they are not playing this game. It is our lives the politicians are gambling with. When they have taken no action to deal with perpetrators and financiers of the Post election Violence they are playing Russian roulette.

When they have taken little action to implement the National Accord reforms  they are playing Russian roulette.

When they allowed the Rule of Law not to be applicable in Kenya they are playing Russian roulette.

When they have taken no actions to ensure that all eligible Kenyans have been registered to vote and re-enfranchised they are playing Russian roulette.  A vacancy in the Presidency today would mean chaos as no Kenyans apart from just about 100 thousand of us in Shinyalu and Bomachoge constituencies have elector’s cards.  What would happen to Kenya if we needed to elect a President suddenly? As things stand, we cannot vote because we do not have a voters register.  Instead of dwelling on conflict potentiality in the Draft Constitution between institutions – or in Kenyan parlance ‘centres of power’ – Kenyans should be agitating for their existing constitutional right to vote to be immediately returned to them.

With no voting mechanisms in place we are on a daily basis courting disaster as warlords reorganise themselves for the next shot at power – without a ballot.  And all because we Kenyans have failed to demand the implementation of the National Accord to the letter and have started attending political rallies in ever increasing numbers to support the politicians we allowed to take us to the brink of a precipice in 2007.  Wake up Kenyans, you cannot guarantee the outcome of this game.  You can’t win or break even – you must get out of the game.

Some say God only helps those who help themselves. Kenyans are we helping ourselves?

The Special Tribunal Bill: Kenyans Experiencing the Bitter Taste of Impunity.

The Special Tribunal Bill: Kenyans Experiencing the Bitter Taste of Impunity.


‘the proof of the pudding is in the eating’. Meaning that for Kenyans to fully test something they need to experience it themselves. We have seen Parliament boycott the debating chamber whenever the Special Tribunal Bill came up for debate. Now Kenyans are experiencing the bitter taste of Impunity. The Special Tribunal Bill has received no support from Mwai Kibaki or Raila Odinga, the two principals and signatories of the National Accord. The test here was for the two Principals and they have failed. Parliament has also failed Kenyans and the Victims of the Post Election Violence.

We as Kenyans see no reason whatsoever, for the continuation of this Grand Coalition Government. The Two Principals Mwai Kibaki and Raila Odinga should be the first victims of the ICC as they bear the greatest responsibility and are the beneficiaries of the Post Election Violence which caused a Constitutional Amendment creating a National Accord that enabled them to share power. If Mwai Kibaki and Raila Odinga had lived up to their end of the bargain with Kenyans, the government would have supported the Special tribunal Bill that would have seen Justice for the Victims of Post Election Violence.

Kofi Annan is back in town. What will the Principals be telling the eminent persons on the Special Tribunal for Kenya? Will Mr Annan say that there has been progress? We look forward to Mr Ocampo picking up Mwai Kibaki and Raila Odinga and sending them to the Hague. Lets not be Vague! Or at least that should be the position if the two principals by Wednesday next week have not whipped their party members into attending the division when the Special Tribunal Bill comes up for a vote.

Partnership for Change

Nairobi, Kenya

2nd December 2009


Extracts of Powerful Contributions by Members of Parliament on Wednesday 11th November 2009, when Mr. Gitobu Imanyara Mp Rose to Move That the Special Tribunal Bill Be Read a Second Time. the Bill Was Seconded by Mr. Danson Mungatana Mp.

Extracts of Powerful Contributions By Members Of Parliament on Wednesday 11th November 2009, when Mr. Gitobu Imanyara MP rose to move that the Special Tribunal Bill be read a Second time. The Bill was seconded by Mr. Danson Mungatana MP.

On the morning of Wednesday, 11th November, 2009 Hon. Gitobu Imanyara MP rose to move that the Constitution Of Kenya ( Amendment ) Bill be read a second time. Sadly, the debate on this crucial bill that seeks to set up a Special Tribunal to punish the perpetrators of Post Election Violence was adjourned due to lack of Quorum. Ministers and Assistant ministers had jetted off to Mombasa for a retreat that was yet to begin as the two Principals Mwai Kibaki and Raila Odinga were photographed at Nairobi’s Jomo Kenyatta Airport on Friday receiving the FIFA World Cup. It is clear to the Citizens of this Republic that our representatives FAILED intentionally, to show up at Parliament to debate a matter of National Importance. Can the people of this great country honestly claim to have representation?

We, Citizens of Kenya have presented a Public Petition to Parliament, through Hon. David Ngugi MP in support of Hon. Imanyara’s Bill for a Special Tribunal that seeks justice for our Brothers and Sisters and their children who are victims of the Post Election Violence. We want our so called representatives to be clear that they are in Parliament because they are elected by Kenyan Citizens. It is Kenyan Citizens who are saying that they want a Special Tribunal that meets International thresholds under the ICC. The vox populi cannot be ignored in a Democracy. The Kenyan People have spoken, and now we want our voice to be loud and clear in the National Assembly.

Members of Parliament must enact into Law, the Constitution Of Kenya ( Amendment ) Bill 2009. Kenyans are watching. We also urge the International Community to stand with the Public on calling for Parliament to immediately enact this crucial Bill into Law. Mwai Kibaki and Raila Odinga must rally their troops to support the enactment of the Bill into Law as promised to Kenyans when they received the Waki report in October of 2008 “ With Power comes responsibility” Kenyans expect the Principals to honour their promises.

Below is an extract of the Proceedings in Parliament on the Special Tribunal Bill on Wednesday 11th November 2009.


Hon Gitobu Imanyara MP, moves that the Bill be read a Second time

Mr. Imanyara: I beg to move that the Constitution of Kenya (Amendment) Bill be read a Second Time. Mr. Deputy Speaker, Sir, I stand before you with great humility and profound gratitude to move the Constitution of Kenya (Amendment) Bill, 2009. If enacted, as I plead with you, we will amend the Constitution of Kenya to create a Special Tribunal for Kenya to investigate, prosecute and determine cases against persons responsible for genocide, gross violation of human rights and crimes against humanity.

The Tribunal will also investigate prior and subsequent events, circumstances and factors relating to offences arising from and connected with the December, 2007 General Election.

Historic Agreement
On 16th December, 2008, His Excellency the President and Commander-in-Chief of the Armed Forced, Mwai Kibaki together with the Rt. hon. Raila Amolo Odinga signed a historic agreement which was in the following language. It reads:-
“Agreement for the implementation of the recommendations of the Commission of Inquiry into Post Election Violence. Recalling the agreements on the principles of partnership of the Coalition Government made on 28th February, 2008, and the agreement for the establishment of a Commission of Inquiry on Post Election Violence dated 4th March, 2008 convinced that the fundamental reforms must be instituted to create a better, more secure, more prosperous Kenya for all, desirous to establish a framework for the implementation of the recommendations of the Commission into Post Election Violence as contained in the report dated 16th October, 2008, the CIPEV Report and pursuant to the National Accord and Reconciliation Act as entrenched in the Constitution of Kenya, now the parties hereby – the parties were the President and the hon. Prime Minister – agree as follows—

Article One- Parties shall submit a bill
“ Article One on the establishment of a special tribunal for Kenya says that “the parties shall prepare and submit to the National Assembly for enactment a Bill to be known as “The Statute for the Special Tribunal” to give effect to the establishment of a Special Tribunal to seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity relating to the 2007 General Election in Kenya. The Bill shall provide for the matters recommended by the CIPEV Report in relation to a Special Tribunal for Kenya”.

Article two- Parties shall mobilise Parliamentary support
Article Two says that “the parties shall mobilise Parliamentary support for the enactment of Freedom of Information Bill, 2008 and take such administrative measures as they may be necessary to fully operationalise the Witness Protection Act, 2008 and the International Crimes Act, 2008.

Article three- Parties shall initiate urgent reforms
Article Three which talks about comprehensive reforms in the Kenya Police and the Administrative Police says that the parties shall initiate urgent and comprehensive reforms of the Kenya Police and the Administrative Police. Such reforms shall be undertaken by the panel of policing experts and will include, but not limited, to a review of all tactics, weapons and use of force, establishment of an independent Police Service Commission to oversee both the Kenya Police and the Administrative Police, an Independent Police Conduct Authority for both the Kenya Police and the Administration Police, creation of a modern Code of Conduct for the Kenya Police and the Administrative Police and achieving ethnic and tribal balance in the force”.

Article four- Parties shall suspend and bar from office public servants
Article Four on public officers and offices says that “the parties shall ensure that any person holding public office or any public servants charged with a criminal offence related to the 2008 post election violence shall be suspended from duty until the matter is fully adjudicated upon. The parties shall ensure that any person convicted of a post election violence offence is barred from holding any public office or contesting any electoral position”.

Article Five- Parties shall develop & implement conflicts & disaster early warning response systems
Article Five on Conflict and Disaster Early Warning and Response System says that “the parties shall ensure that the conflicts and disaster early warning and response systems as articulated in the First Medium Term Plan, 2008/2012 and are developed and implemented as a matter of priority.

Article Six- Parties hereby designate a Cabinet sub Committee of National Accord
Article Six on Framework for implementation states that “the parties hereby designate a Cabinet sub-Committee of National Accord comprising of His Excellency the President and Commander-in-Chief of the Armed Forces of the Republic of Kenya, Mwai Kibaki; the Rt. hon. Raila Odinga who is the Prime Minister of the Republic of Kenya and the eight Ministers who represent the parties at the Kenya National Dialogue and Reconciliation as the bodies to oversee the day to day management and implementation of the agreements.”

Mr. Deputy Speaker, Sir, this Bill is our contribution as Members of the Tenth
Parliament to the realisation of the objectives that were set out by His Excellency the President, the Rt. hon. Prime Minister and the eight man and women team that was charged with that responsibility. I need not to remind hon. Members that this Accord was entrenched in our national Constitution, therefore, creating a very solemn obligation on the part of the parties and on us, as Members of Parliament. The eight Ministers who represent the parties in the agreement are:-

(i) Hon. Moses Wetangula;
(ii) Hon. Mutula Kilonzo, MP;
(iii) Hon. Prof. Sam Ongeri, MP;
(iv) Hon. Martha Karua, MP, now replaced by Hon. Beth Mugo, MP;
(v) Hon. Musalia Mudavadi, MP;
(vi) Hon. James Orengo, MP;
(vii) Hon. William Ruto, MP; and,
(viii) Hon. Sally Kosgei, MP.

Kenya Ratified the Rome Statute
The journey to this stage began with the unanimous decision of the then NARC Government through the then Minister for Justice and Constitutional Affairs to ratify the Rome Statue that set up the International Criminal Court in Rome. This country proudly, ratified the Rome Statute on 15th March, 2005 and, therefore, joined the international efforts to end the culture of impunity. This country recognises the exhaustive provisions in that statute to deal with impunity. In too many cases across the world, these crimes had been committed with impunity which had only encouraged others to flout the laws of humanity.

The International Criminal Court was created due to that urgent need to end impunity and stop gross violation of the International Humanitarian Law.
On 17th July, 1998, the international community reached a historic milestone when 120 states adopted the Rome Statute forming the legal basis for establishing the permanent International Criminal Court. The states were mindful that millions of children, women and men have been victims of unimaginable atrocities that have deeply shocked the conscience of humanity. The states were affirming that the most serious crimes of concern to international community must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation.

Article 27 which stipulates that the statute shall apply equally
Mr. Deputy Speaker, Sir, among the provisions of the Rome Statute that we ratified is Article 27 which stipulates that the statute shall apply equally to all persons without any distinctions based on official capacity. Article 29 provides that the crimes within the jurisdiction of the court shall not be subject to any statute of limitations. The ratification was followed by the next major step of domesticating the Rome Statute when this House approved the Government’s efforts of domesticating it by passing the International Crimes Bill into an Act of Parliament.

Mr. Deputy Speaker, Sir, our efforts towards the establishment of a truly democratic environment under which the rule of law and respect for human rights were dealt a near fatal blow by the events surrounding the declaration of the result of the Presidential Elections of December, 2007 General Elections. I need not repeat the tragic circumstances that saw more than 1,000 Kenyans slaughtered in an unprecedented orgy of ethnic mayhem and also left more than 500,000 of fellow Kenyans living as refugees or Internally Displaced Persons (IDPs) within our borders.

The tensions, suspicions, prejudices and fears provoked by those events, unfortunately, remain with us today. Against the above background, the international community did not disappoint. At the moment, we must pay tribute to the Secretary-General of the United Nations, Mr. Ban Ki Moon, the then President of Ghana, His Excellency John Kufuor, His Excellency the former President of Tanzania, Mr. Benjamin Mkapa, the former Secretary-General of the United Nations, Dr. Kofi Annan and Her Excellency, Madam Graca Machel. It is through the efforts of the UN and the international community that the National Accord and Reconciliation Committee was formed after the disputed elections held in December, 2007. The Committee held its deliberations under the auspices of the panel of eminent African personalities and through them, the National Accord was born and signed into law on 28th February, 2008, and also enacted in the Constitution to ensure that its noble intentions were not manipulated or subverted.

National Accord signed by Mwai Kibaki & Raila Odinga established a Commission of Inquiry into the Post- Election Violence
Mr. Deputy Speaker, Sir, under the National Accord signed by President Mwai Kibaki and Prime Minister Raila Odinga, the Commission of Inquiry into the Post-Election Violence (CIPEV) was established vide gazette notice No.4473 on 22nd May, 2008. Its mandate was to investigate the facts and circumstances surrounding the violence; the conduct of state security agencies in their handling of it and to make recommendations concerning this and other matters. Under the chairmanship of Justice Phillip Waki, Judge of the Kenya Court of Appeal, the CIPEV carried out its mandate and completed its task within a reasonable time and in accordance with its provisions, made fundamental recommendations among them:-

Special Tribunal for Kenya be set up as a court that will sit within the territorial boundaries of the Republic of Kenya
“(a) A special tribunal to be known as Special Tribunal for Kenya be set up as a court that will sit within the territorial boundaries of the Republic of Kenya and seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity relating to the 2007 General Elections in Kenya. The special tribunal shall achieve this through the investigation, prosecution and adjudication of such crimes.

Tribunal shall apply Kenyan and International Law
(b) The special tribunal shall apply Kenyan law and also the International Crimes Bill once this is enacted, and shall have Kenyan and international judges as well as Kenyan and international staff to be appointed as provided there under.

Special Tribunal shall be enacted into law and come into force within a further 45 days after the signing of the agreement
(c) In order to fully give effect to establishment of the special tribunal, an agreement for its establishment shall be signed by the representatives of the parties in the agreement of National Accord and Reconciliation within 60 days of the presentation of the report of the CIPEV to the panel of eminent African personalities or the panel representatives. A statute to be known as a Statute for Special Tribunal shall be enacted into law and come into force within a further 45 days after the signing of the agreement.

ICC can investigate and prosecute suspected persons if Tribunal fails
(d) If either an agreement for the establishment of a special tribunal is not signed or the statute for the special tribunal fails to be enacted or the special tribunal fails to commence functioning as contemplated above or having commenced operating its purposes are subverted, a list containing names and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed special tribunal shall be forwarded to the special prosecutor of the International Criminal Court (ICC). The special prosecutor shall be requested to analyze the seriousness of information received with a view to proceeding with an investigation and prosecuting such suspected persons.

Anchored in the Constitution
(e) The Bill establishing a special tribunal shall ensure that the special tribunal is insulated against objections on constitutionality and to that end it shall be anchored in the Constitution.”

Attempt to create A special Tribunal failed the First time it was introduced
Mr. Deputy Speaker, Sir, the above recommendations, among others contained in the Waki Report, led to the introduction before this House of the first attempt to create a special tribunal for Kenya. The attempt failed when this House rejected it for reasons among others, are:-

(i) It did not meet constitutional safeguards on the criteria and conditions set by the Waki Report.

(ii) As drafted, it could not win the confidence of victims because of lack of credible,

(iii) impartial, independent investigations and prosecution procedures

(iv) It did not guarantee standards of trials set out in the Rome Statute.

(v) It did not have financial and political independence.

(vi) Provisions on witness and victim protections were inadequate.

Mr. Deputy Speaker, Sir, despite advice in a Speaker’s Kamukunji that we held in the Old Chambers attended by both the President and the Prime Minister, the efforts of the then Minister for Justice, National Cohesion and Constitutional Affairs, failed to yield.

resignation of the Minister from the Government
Subsequent events led to the resignation of the Minister from the Government and she was succeeded by Mr. M. Kilonzo, whose efforts also failed when his colleagues in the Cabinet rejected a much improved version of the original Bill.

It was at that stage that the civil society, led by the Law Society of Kenya (LSK) and supported by others including the International Commission of Jurists (ICJ), International Centre for Policy and Conflict (ICPC), FIDA Kenya and a number of us in the backbench met, fine-tuned and improved on the earlier Bill rejected by the Cabinet and in a departure from the traditions of this august House, published it in a draft form in a website called “endimpunityinkenya.org” seeking views from Kenyans within and without. Within days, the website recorded more than 50,000 hits and close to 5,000 comments and suggestions for improvement. The result is the Bill that I am introducing to this House today.

Kenyans determined to end the culture of impunity
Mr. Deputy Speaker, Sir, may I at this point remind hon. Members that what is before this House is, therefore, the product of all the above. It is not a sole effort of myself, Mr. Imanyara, but a combined effort of Kenyans determined to end the culture of impunity in our beloved Republic.

Why the Bill? In line with Recommendation No.6 of the Waki Report, the Bill proposes the following constitutional amendment. The Constitution of Kenya shall be amended by inserting the following new Section immediately after Section 3A which reads:- “There is to be established a tribunal to be known as a Special Tribunal for Kenya which shall have exclusive jurisdiction in accordance with this Constitution;

(a) to investigate, prosecute and determine cases against persons responsible for genocide, gross violation of human rights, crimes against humanity; and,

(b) investigate prior and subsequent events, circumstances and factors relating to the crimes and to prosecute related offenses arising from and connected with crimes committed in Kenya in connection with December, 2007 elections.

Mr. Deputy Speaker, Sir, Clause 3A (vi) says that:- this Section shall cease to be effective upon expiry of three years from the dates of the establishment of the tribunal, provided that Parliament may extend the life of the tribunal which may be extended in appropriate circumstances and at the request of the tribunal by the resolution of the National Assembly, supported by not less than 65 per cent of all Members of the National Assembly excluding the ex-officio Members.

Mr. Deputy Speaker, Sir, in line with Recommendation No.5 of the Waki Report,the Bill proposes in Clause 3A (ii) as follows:- “Notwithstanding the provisions of this Section, the ICC established under the Rome Statute shall have concurrent jurisdiction to investigate, indict and prosecute persons bearing the greatest responsibility. The Tribunal, may, at any stage make a referral to the ICC as set out in Article 14 of the Rome Statute with reasons thereof if it deems expedience provided that no person shall be subjected to prosecution by both the ICC and the Special Tribunal at the same time.”

Mr. Deputy Speaker, Sir, in line with recommendation number 2 of the Waki Report and in recognition that this country has fully operationalised the International Crimes Act, 2008 and in recognition of the Vienna Convention Section 11(3)(i) and (ii) of the Bill are coached in the following words:- “(3)(i) This section shall apply equally to all persons without any distinction based on official capacity and shall in no case exempt a person from criminal responsibility nor shall it in and of itself constitute a ground for reduction of sentence;

(ii) Immunities or special procedural rules which may attach to the official capacity of a person whether under national or international law shall not bar the Tribunal from exercising jurisdiction over such a person with respect to Vienna Convention.”

Mr. Deputy Speaker, Sir, in line with Article 28 of the Rome Statute which ratifies this, the Bill proposes as follows in Section 11(4):- “The fact that any other acts under the interpretation section herein above was committed by a subordinate does not relieve his superior of criminal responsibility if the superior knew or had reason to know, or to have ought to have known, or owing to the circumstance at the time, should have known, or consciously disregarded information which clearly indicated that the subordinate was about to commit such acts or has done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to submit the matter to the Competent Authorities for investigation and prosecution.”

Section 11(5) says: “The fact that an accused person acted pursuant to an order of a Government official or of a superior shall not relieve him or her of criminal responsibility.”

Mr. Deputy Speaker, Sir, contrary to assertions from some quarters, the Bill does not target any one personality, institution or community. It targets the perpetrators of impunity wherever they are from whatever community or racial group in Kenya.

Mr. Deputy Speaker, Sir, Section 11(1) of the Bill is coached as follows:- “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime shall be responsible individually for the crime”.

Mr. Deputy Speaker, Sir, in line with recommendation number one of the Waki Report, the Bill has given the Tribunal wide powers to look at events that not only took place after the disputed Presidential results were announced, but also that preceded the general election.

Section 4(1) of the Bill gives the Tribunal the following functions:- “The functions of the Tribunal shall be to investigate, prosecute and determine cases against persons bearing responsibility for genocide, gross violations of human rights, crimes against humanity and other crimes which occurred in relation to the General Elections held on 27th December, 2007.”

Section 4(2) says:-“The Tribunal shall have power to investigate prior and subsequent events, circumstances and factors relating to the crimes and to prosecute related offences arising from and connected with the crimes.”

Therefore, those who fear that and I quote their words “stole elections will be scot-free” will not go scot free because the Tribunal does have powers to make investigations on all aspects. The Tribunal shall determine who to pay compensation for the identified victims after assessment has been undertaken by special magistrates.

Lastly, the effects of investigation, indictments and convictions on holders of public office are stipulated in Clause 55(1) of the Bill. It reads as follows:- “A public officer under investigation shall stand relieved of duties until exonerated.”

Section 55(2) says:- “A public officer who is indicted or convicted of a crime under this statute shall cease to hold public office.”

The Bill before this House today does not aim to replace the criminal processes or work of the Kenyan judiciary. It is not imposed upon us from outside, but as I have explained, it does recognise the efforts of international community as entrenched in the Constitution through the Panel of Eminent African Personalities.

The Bill has four parts.
Part one contains preliminaries,

part 2 providing for the operations and structure of the Special Tribunal for Kenya as a body corporate; it sets out the procedure for the appointment of judges of the Tribunal, Prosecutor, Registrar, Defence Counsel, Special Magistrates and it also specifies the crimes to be prosecuted.

Part three contains financial provisions in respect of the Tribunal and provides for the sources from which funds of the Tribunal will be drawn.

Part 4, contains miscellaneous provisions, including requirements that the Tribunal do prepare and submit a report on its work to the National Assembly.

The Bill gives the two principals signatories to ensure the proper functioning of the Special Tribunal
The Bill gives the two principals signatories, His Excellency the President and Right Hon. Prime Minister extra-ordinary authority to ensure the proper functioning of the Special Tribunal. That is why the Constitution itself, through the Bill that we entrenched, gave special responsibility to the eight Cabinet Ministers who have been charged with that solemn responsibility of ensuring, not only that the special Tribunal is formed, but it functions smoothly and in accordance with the recommendations contained in the Waki Report.

All we are doing this morning is supporting those efforts. It is a pity that 90 per cent of those who are charged with that responsibility are not here to understand and hear that we are doing what is expected of them. We are only supporting their efforts. This solemn obligation they took when they signed the agreement setting out the principles. If you look at those principles as I have read, you will see that we are lagging far behind the reform agenda. That is why we, as a Parliament, are called upon to take responsibility of leadership to ensure that this country never again has to undergo through what we went in December, 1997 and early January, 1998.

Tribunal uses the best of international practice and international legal know-how
Mr. Deputy Speaker, Sir, in conclusion, I want to emphasize that the Special Tribunal Bill that we seek to establish is a truly Kenyan Tribunal. It uses the best of international practice and international legal know-how as recommended by the Panel of Eminent African Personalities. It is created by the will of the Kenya people and a creature of this House and none other. The Special Tribunal is not answerable to the United Nations (UN), Koffi Annan or any foreign envoy. The Bill clearly differentiates between culprits and minor collaborators. The chief perpetrators go to The Hague. Their names are contained in an envelope. The other violators will be dealt with here in accordance with the law without distinction as to their community, status in life and official capacity.

It does not victimise any group of any class. It serves the victims while dealing with new ones and differentiations with the culprits. The Special Tribunal we are creating does not depend on the International Criminal Court (ICC), but will collaborate with it.

passing this Bill will strengthen our sovereignty
Mr. Deputy Speaker, Sir, passing this Bill will strengthen our sovereignty and show critics and detractors that we are not a failed state, but a state that is able, ready and willing to regulate her own affairs. I urge the hon. Members to enact this Bill into law. In the words of Winston Churchill, we are still toiling up the hill. We have not yet reached the crest line of it. We cannot survey the landscape or even imagine what condition will be when that longed for morning comes. The task which lies before us immediately is one that is practical, simpler and has higher standards more stands. I hope and, indeed, pray that we shall not be found unworthy of our victory if after toil and tribulations of it, it is granted to us. For the rest, we have to gain the victory. That is our task.

Mr. Deputy Speaker, Sir, I beg to move the Constitution of Kenya (Amendment) Bill and request hon. Mr. Mungatana to second it.

Mr Danson Mungatana MP rises to Second the Bill

Mr. Mungatana:
Mr. Deputy Speaker, Sir, I want to congratulate hon. Gitobu
Imanyara for moving this Bill. I also want to thank him so much for taking time to move The Constitution of Kenya (Amendment) Bill, which essentially seeks to introduce the Special Tribunal in Kenya.

Mr. Deputy Speaker, Sir, hon. Imanyara has gone into details about what the technical bits of the law that are necessary for us to get the Special Tribunal for Kenya and he has gone into the details of the kind of things and the standards that we need to set. However, I want to bring this debate to another level. Crimes were committed in this country after the general election of 2007. There were crimes of murder, rape, robbery with violence, those that involved injuries to people, burning of homes and things like that. However, there are what we call ordinary crimes and crimes that threaten the very existence of a state. The kind of crimes that were being committed at that time were threatening the existence of the state that we know as Kenya

Mr. Deputy Speaker, Sir, when we have a crime that is committed and threatens the existence of a State and also brings the fear of disintegration of a whole nation, such a crime cannot be treated as an ordinary crime. There have been arguments that the Attorney-General of the Republic of Kenya could have arrested all those people and tried them under the current existing laws. He could have taken all the people who were involved in whatever forms of little crimes that were committed at the time, have them arrested and then charge them in court under the existing laws. People have argued before saying that because the Attorney-General did not do that, it is a failure on his part. I stand here as the devil’s advocate. The kind of crimes that were being committed at that time were threatening the existence of the state that we know as Kenya. They were not ordinary crimes that were committed in this country. Those were crimes that were threatening the very fabric of the state that we know as Kenya. Therefore, it is not the failure as such of the Attorney-General. It was the failure of the law that existed at that time that would not be able to address the issues that were in existence.

Mr. Deputy Speaker, Sir, that is why, right now, we need to pass this statute of the Special Tribunal that will deal with those kind of crimes that were threatening the existence of the nation. These were not ordinary crimes. This is the reason why this Parliament should be persuaded to pass the law that hon. Imanyara has just moved.

Mr. Deputy Speaker, Sir, the existence of this kind of situation is not new. It has been existing in other parts of the world and there are many examples that people can look at. However, what comes to my mind, and every hon. Member can quickly access it if they go to the Cable News Network (CNN) blog, is that they will see what happened in Cambodia;. 1.7 million people were killed in Cambodia in three months because of the uprising of the Khmer Rouge. Many of us would remember hearing about the Khmer Rouge again and again. It was not possible in Cambodia to deal with those murders, rapes, killings and burning of properties that took place using the normal laws that existed at that time. It was necessary to set up a special law that would deal with that situation.

set up this Special Tribunal so that we can deal with a situation that existed and could not be handled with the current laws that exist in this country.
Mr. Deputy Speaker, Sir, so in seconding this Bill, I am urging Members of Parliament to bring to bear the fact that there is need for us right now to set up this Special Tribunal so that we can deal with a situation that existed and could not be handled with the current laws that exist in this country. Legally and politically speaking, the laws that were in existence at this time and the laws that are in existence at that time are not capable of dealing with the situation that we have. Therefore, this is one fundamental reason why I am urging hon. Members in this House and those who are listening to us even outside this House, that there is need for us to come together as a nation and support the aspirations of many Kenyans and set up this Special Tribunal.

Kenyans were injured. People lost their lives. Children were butchered. Women were raped. Young men were killed at the prime of their youth
Mr. Deputy Speaker, Sir, this brings me to the second point why we need to set up this Special Tribunal. A lot of Kenyans out there were injured and suffered crimes. People lost their lives. Children were butchered. Women were raped. Young men were killed at the prime of their youth. A lot of people show the clips that were there during the post-election violence. Those are images we cannot forget. These Kenyans who were victims are listening to us today and looking up to the leadership of the country to do something about the problems of victimization they encountered at that period. It is a time in history for this Parliament to rise to the occasion and listen to the cries of the people in the countryside and those in towns who suffered the brunt of the election violence.

Kenyans who brought us to this Parliament need to see leadership in us
Mr. Deputy Speaker, Sir, even reading what was recommended by the Justice Waki and Kriegler Commissions, our people suffered and need a closure to that sad chapter of history. I know that we need to forgive and this is what the good book tells us and we will forgive. That opportunity will come under the Truth Justice and Reconciliation Commission (TJRC) but under this law, we want people to be held responsible so that Kenyans who brought us to this Parliament would be able to see leadership in us. Leadership is not about being popular; leadership is about walking and charting places which may not necessarily have been charted before. Sometimes it is dangerous, unpopular and difficult. That is why I am saying we need to congratulate hon. Imanyara for this bold step he has taken.

meet the aspirations of the people of Kenya
Mr. Deputy Speaker, Sir, Kenyans today would like to see a situation where those people that wronged them can face justice in this country. They know them. Some of them were their neighbours and are still walking around in their neighbourhoods. Some of them are laughing at them. It is important for us as a nation to meet the aspirations of the people of Kenya who want to see a closure to this sad chapter in our history, which is the second reason why we need to pass this Bill and offer leadership to the people of Kenya.

victims of post-election violence who would wish to give their evidence have a special arrangement under this law
Mr. Deputy Speaker, Sir, the third reason I am seconding this Bill, and I think we
should all support it, is that the victims of post-election violence who would wish to give their evidence have a special arrangement under this law. People will not be living in fear again in the countryside. They will be able to come out to give their bit. When the Truth, Justice and Reconciliation Commission commences work, it will find people who have already started the process of healing.

Victims will be compensated
This Bill also provides clearly that the victims of post-election violence will be
compensated. In the whole debate about the post-election violence, the country has been concerned about those who need to be protected. They have forgotten about the victims of the violence. When we have national disasters in the country, say, as a result of bad weather, the nation always wakes up to the occasion. For example, Ministries come together to help people resettle. However, the Internally Displaced Persons (IDPs) have been forgotten. Those who had farms were given only Kshs35,000. There are those who were employed but are not jobless and they cannot go back where they used to work.

They have lost their livelihood! These people need to be compensated. So, in this Bill, the victims of post-election violence have been clearly provided for. The Bill seeks to set up a fund. This will enable the victims of the violence say: “Indeed, our country did not forget us”

if these victims should be forgotten, then that is another failure.
If we say that the problem that arose was collective because of the failure of the
electoral system at that time, then it was a failure of the State. We failed collectively. However, if we also say that these victims should be forgotten, then that is another failure. In this Bill, it is proposed that a fund be set up. The State will try to reach out to the victims of post-election violence and compensate them. That way, the nation will start a true healing process.

this particular Bill, people are being treated equally.
Mr. Deputy Speaker, Sir, hon. Imanyara touched on the reasons that made us reject the initial Bill. The most crucial thing is to realize that in this particular Bill, people are being treated equally. According to this Bill, in all circumstances, there is no regard to the position you hold. You could be the President, Vice-President, Prime Minister, Deputy Prime Minister, or Police Commissioner, but this Bill is not restrictive. It seeks to deal with and bring equality to everybody. It is for that reason, again, that I urge my colleagues to support it.

Kenya has suffered impunity right from Independence
Kenya has suffered impunity right from Independence. Impunity has been there since the regime of the late first President, the second President and even now. The notion in this State is that when you are a big person, you cannot commit any wrong and that you need to be protected at all costs. This Bill seeks to correct that. For the first time in this country, we will see people being taken to trial. Impunity needs to be dealt with in this country and we must begin from somewhere. I was very happy when the other day I read in the newspapers that the former President of France, Mr. Jacque Chirac was being questioned and warrants had been issued that he appears in court to answer to charges of improper use of resources when he was the mayor of Paris. You can imagine the levels where justice has reached in that country – a former Head of State can be called to account!

In the same country, the current President, Mr. Sarkozy, has gone to court to fight for his rights. Apparently, when he was running for the presidency, the former Prime Minister, Dominique de Villepin was involved in some schemes to ensure that Mr. Sarkozy does not succeed. In Kenya, we call it “kupakana matope”. That is the level we need to take our country. I know of democracies that have been in existence for many years. For example, we all know about the French Revolution of 1779.

Mr. Deputy Speaker, Sir, here, we are talking about impunity and we do not need to reinvent the wheel. In Kenya, you hardly ever hear of a Government Minister being taken to court to answer to this-and-that charge. That is why, today, even on small matters like traffic jams, you will see a flagged car `flying’ on the wrong side of the road. They do not care that they could cause an accident and kill someone. They just ‘fly’. They do not know that we are the ones paying for the flagged vehicle, whether it is a Passat or the big guzzlers. The sense of impunity exists in this country and it is what we need to deal with. It is impunity which tells you: “Because my father is So-and-So, you cannot touch me. Because my grandfather is So-and-So, I need to get this tender. I can shoot you and nothing will happen to me. I can plan violence and nothing will happen to me so long as I fight so hard to catch that flag. Once it is on my car, nothing will happen to me”. We need to take our country to the level of France. Everybody must be ready to pay the price so that the State can move forward. This is a big reason we need to support this Bill. It is seeking to deal with that impunity. In this Bill, nobody is big or immune. If you have been mentioned, whether you are a Government officer or not, you are required to come out of that office so that you can be dealt with in a normal way. We have to respect the flag and that is why we have to remove you from office so that you can be dealt with.

Mr. Deputy Speaker, Sir, for those reasons, I second this Bill and urge hon. Members to show leadership and go for it. Let us close this chapter of our nation. I beg to second.

(Question proposed)

The Assistant Minister for Roads (Dr. Machage): Bw. Naibu wa Spika, huu
ndio wakati wananchi wa nchi hii wanapaswa kuwatambua viongozi wazalendo ambao wana uchungu na utu; viongozi ambao wanamtambua kila mtu kwenye sehemu ya uwakilishi Bungeni kama binadamu, na kujua kwamba binadamu wote ni sawa.

Kwa wale, wale ambao wanapenda kusoma Biblia, wanajua kwamba wakati fulani, Mwenyezi Mungu alimuumba binadamu na binadamu akawazaa watoto wawili; Abel na Kain. Baadaye, Kain aliamua kumuua Abel. Mwenyezi Mungu akamuuliza Kain: “Ndugu yako yuko wapi?” Kain akamujibu: “Sijui.” Mwenyezi Mungu akamuuliza: “Unasema hujui na damu ya ndugu yako inalia mbele ya macho yangu?”

Bw. Naibu wa Spika, damu ya wananchi zaidi ya 1,000 waliofariki wakati wa
ghasia za baada ya uchaguzi mkuu wa 2007 inalia mbele ya macho ya Mwenyezi Mungu. Mwenyezi Mungu amemweka hapa mwawakilishe watu wake ili mweze kusikia vilio kama hivyo lakini wengine wetu tunakipuuza kilio hicho. Mimi niliupinga Mswada wa kwanza ulioletwa Bungeni. Mhe. Imanyara, na viongozi wengine wengi, pia waliupinga Mswada huo kwa sababu ulikuwa umetayarishwa na hila. Mswada huo ulikuwa umeandikwa kuwatetea wauaji na wavunjaji sheria. Mimi na Waziri Msaidizi mwingine mmoja tu ndio tulioukataa Mswada huo miongoni mwa wale tuliomo Serikalini.

Tulilazimishwa na Serikali kuunga mkono Mswada huo lakini tulikataa. Tulisema kwamba haiwezekani kwa sababu Mswada huo haukufaa. Nikauliza: “Kwa nini Mswada huu hauna vipengele ambavyo vinamruhusu kila mtu kulingana na mwingine kisheria?”

Lakini hakuna aliyetaka kulijibu swali hilo, isipokuwa tu kutulazimisha kuja hapa kuunga mkono Mswada huo, ambao haukuwa unafaa. Kwa hivyo, nikasema “la”. Ukaja mswada wa pili ambao ulikuwa na tatizo kama hilo, nikasema “la”.

Bw. Naibu wa Spika, leo hii, kuna Mswada ambao umependekezwa kwetu na mhe. Imanyara, na ninampongeza mhe. Imanyara kwa kazi nzuri aliyofanya ya kuuandika Mswada huu vile inavyotakikana. Hakuyatoa mambo haya kutoka kwa kichwa chake, bali ameifuata sheria. Amefuata mapendekezo yaliyowekwa na kuratibishwa na viongozi wetu wakati walipoweka sahihi yale makubiliano baada ya vita.

Kipengele cha Nne cha ile memoranda waliyoweka sahihi kinasema kwamba mtu yeyote atakayepelekwa kortini kwa mashtaka ya kuvunja sheria ni lazima aondoke Serikalini. Mtu huyo ni lazima aondolewe madaraka pamoja na mshahara wake na marupurupu yote anayopata kutoka kwa Serikali. Wakuu wawili wanaoshikilia Serikalii, pamoja na wale Mawaziri wengine wanane waliokuwepo, waliweka kidole wenyewe.Walisema kwamba sheria ni lazima ifuatwe na korti kuandaliwa ili haki itendeke kwa walioadhirika.

Bw. Naibu wa Spika, ninashangaa kuona kwamba labda wameusahau huo mkataba waliouweka mbele ya macho ya wananchi wa Kenya. Bw. Ocampo aliwasili humu nchini kuyashughulikia mambo hayo lakini wale wazee wawili wanaoshikilia Serikali, ambao ninawaheshimu sana, walirudisha nyuso zao nyuma na kukataa kumuruhusu Bw. Ocambo kuwafungulia mashtaka wahalifu hao. Wawili hao waliogopa kusema hivyo kwa sababu miongoni mwa wale waliotenda madhambi hayo ni marafiki zao.

QUORUM

Mr. Mbadi: On a point of order, Mr. Deputy Speaker, Sir. With a heavy heart,
this Bill is very important, given that it has far-reaching effects on this country but
looking around, I do not think the Quorum in this House is adequate enough to give this Bill enough attention.

Mr. Deputy Speaker: Indeed, we do not have a Quorum. So, could the Division Bell be rang?

(The Division Bell was rung)

ADJOURNMENT

Mr. Deputy Speaker: Hon. Members, there being no quorum, this House is, therefore, adjourned until this afternoon, Wednesday, 11th November 2009, at 2.30 p.m.

The House rose at 10.55 a.m.


Shame, Shame ,Shame! Where were the Members of Parliament? Where was the Voice of the people? In mombasa at a retreat? On our tax money? What about the Victims? When will they get Justice? Shame!

Submission to the Public Accounts Committee Enquiring into Matters Arising from the Finance Ministry Purchase and Surrender Vehicle Scheme 2009

SUBMISSION TO THE PUBLIC ACCOUNTS COMMITTEE ENQUIRING INTO MATTERS ARISING FROM THE FINANCE MINISTRY PURCHASE AND SURRENDER VEHICLE SCHEME 2009

Mr. Chairman: This submission is on behalf of the Partnership for Change a non-violent people’s movement dedicated to ending dictatorial impunity and re-establishing democratic accountability in Kenya.

Mr. Chairman: We are interested in sharing information, we have obtained from public domain and official records, which is relevant to the summons you have reportedly issued to the Minister for Finance regarding the Ministry of Finance’s ongoing vehicle surrender and replacement exercise.

Mr. Chairman: In order to better engage the public with public finances the Partnership for Change through Mars Group Kenya conducts detailed studies of budgets at central and local levels.  We have previously had the opportunity to appear before a Joint Parliamentary Enquiry by the Budget and Finance Committees into the Supplementary Estimates of the Financial Year 2008-2009.  Our findings of discrepancies in the Supplementary Estimates triggered the enquiry and resulted in the adoption of a unanimous report which included a recommendation that an independent forensic audit should be done by an independent body to look into past three years of the National Budget including the Consolidated Fund Services to determine whether there might have been other inaccuracies or inconsistencies in the last two years in addition to the current year.  Unfortunately the Independent Forensic Audit has not yet been commissioned.

Mr. Chairman: The press has reported that your Committee is interested in the procurement processes which resulted in the purchase of 120 VW Passat saloon cars by the Ministry of Finance for Cabinet Ministers, Assistant Ministers and Permanent Secretaries.

Mr. Chairman: Apart from the obvious blatant contempt for transparency and fidelity to the letter and spirit of procurement procedures indicated by the single sourcing by the Treasury in its latest vehicle policy scheme, a little known Treasury press statement of December 2008 and missing information in the subsequent 2009 National Budget suggests Kenyan taxpayers have reason to be concerned, hence our appearance before your Committee.

THE 2008 VEHICLE SURRENDER PROGRAMME PRESS STATEMENT:

Mr. Chairman: On December 14th 2008, the Daily Nation in a story entitled “Public Vehicles on sale at throw away prices” reported that about 2,000 Government vehicles earmarked for sale under a reformed transport system were being sold off at incredibly low prices. The Nation revealed that the cars were said to have been sold for as little as Sh500. Most of the vehicles already sold were bought by well-connected individuals and companies through questionable deals. The cars were being auctioned in line with a transport policy announced by the then Finance minister Amos Kimunya during the 2006 Budget speech and that the sale was expected to save the Treasury about Sh1.3 billion per year in fuel and maintenance costs. 
Mr. Chairman: The Daily Nation story was met with an immediate response from the Treasury. In a press statement, the Financial Secretary “noted with concern an article carried on the front page of Daily Nation newspaper of Monday, 15th December 2008 headlined "Public Vehicles on Sale at Throw Away Prices", which alleged that the disposal of vehicles surrendered under the New Government Transport Policy had not been transparent. Nothing could be further from the truth” said the treasury statement.
The Financial Secretary stated that Treasury records indicated that by then only 488 vehicles had been sold through open tender rather than the 1,210 stated in the Daily Nation article. According to the Financial Secretary the sale had realized a total of Kshs.194,061,335 which had already been paid to the exchequer.   The same official stated that another 811 vehicles were advertised for sale which had closed on 25th November 2008 and were awaiting tender awards.  Finally, the official claimed that a further 789 vehicles were under the process of being sold and advertisements were due in early January 2009.
Mr. Chairman: In total by December 2008, the Treasury had collected 2,088 vehicles from various Government Ministries and Departments. According to the Treasury, the process of surrender would continue until all 2,213 targeted vehicles were accounted for.
THE 2009 VEHICLE SURRENDER PROGRAMME:
Mr. Chairman: The reason for the surrender of the vehicles in 2008 was the very same as that behind the 2009 surrender scheme.  During the presentation of the 2008  Financial Year Budget Statement, the Minister for Finance announced the introduction of a new Transport Policy to address weaknesses observed in the existing transport policy, characterized by mismanagement, high maintenance cost and inefficiency, lack of parity in allocation of transport facilities, proliferation of vehicle models and idle capacity due to imbalance between the number of vehicles and drivers; lack of capacity to enforce regulations on the use of Government vehicles and escalating cost of providing Government transport which stood in excess of Kshs.4 billion per annum without corresponding improvement in service delivery.  The 2009 Budget Speech repeated the same reasons.
Mr. Chairman: The Budget estimates reflect the proposal to Parliament by the Government to spend and must show the expected revenues and debts the Government intends to service. It also provides the ACTUAL AMOUNT spent (Expenditure) and received (Appropriations in Aid) in the previous or preceding financial year.  When he presented his budget for the financial year 2009/2010, the new Minister for Finance, Hon. Uhuru Kenyatta was required to state the revenue received from the sale of motor vehicles for the preceding financial year 2008/2009; and he did so. But is what he reported to Parliament the truth?  Mr. Kenyatta disclosed the following as monies received from sale of motor Vehicles for the year 2008/2009.

Income from sale of vehicles 2008/2009

Kshs

Receipts from the Sale of Vehicles and Transport Equipment

17,351,081

Receipts from the sale of Vehicles and Transport Equipment – Paid as Exchequer

    760,000

Source: Estimates of Recurrent Expenditure of the Government of Kenya (2009-10)
Mr. Chairman: What happened to all the money raised by the Treasury from its reported sale of 2,213 motor vehicles surrendered? What happened to the Kshs.194,061,335 that Treasury claimed to have by the time of its press statement received for 488 cars sold? What happened to the proceeds from the sale of the other 1,725 cars?
Mr. Chairman: Hon. Uhuru Kenyatta was also required to indicate in his estimates for the current financial year 2009/2010 the amount he would raise from the sale of unneeded or surrendered cars in Appropriation-in-Aid. Here is what he reported to Parliament as expected receipts from sale of motor vehicles during financial year 2009/2010:

Expected Income from sale of vehicles 2009/2010

Kshs

Receipts from the Sale of Vehicles and Transport Equipment

15,584,640

Receipts from the sale of Vehicles and Transport Equipment – Paid as Exchequer

  1,726,000

For avoidance of doubt, we go one step further and show you the Motor Vehicle expenditure budget for last two financial years (2008/2009 and 2009/2010).
source: Estimates of Recurrent Expenditure of the Government of Kenya (2009-10)

 

 

 

GRAND COALITION GOVT. EXPENDITURE ON CARS

2008/2009

2009/2010

TOTAL

Purchase of Vehicles and Other Transport Equipment

3,336,455,051.00

2,110,174,736.00

5,446,629,787.00

Routine Maintenance – Vehicles and Other Transport Equipment

1,827,445,679.00

1,954,482,630.00

3,781,928,309.00

Overhaul of Vehicles and other Transport Equipment

254,867,886.00

260,561,857.00

515,429,743.00

Fuel Oil and Lubricants

3,530,633,362.00

3,688,151,883.00

7,218,785,245.00

TOTAL SPENT ON CARS

8,949,401,978.00

8,013,371,106.00

16,962,773,084.00

 

Mr. Chairman: Where are the savings?

Mr. Chairman: The Kenyan tax payer expects truthfulness from its Ministry for Finance.  If there was an intention to implement this new policy for the stated purposes then the fuel, overhaul, routine maintenance and purchase budgets would provide evidence of the cost cutting.  Instead the overall expenditure on three of these items (fuel,overhaul and routine maintenance) actually increased.

Mr. Chairman: If the minister were serious that his actions on the new motor vehicles was to save money, would this not have been reflected in his estimates for the financial year 2009/2010? But fuel has gone up to 3.6 Billion Kenya shillings, he has provided over 2 billion Kenya shillings for buying new cars, almost 2 Billion shillings to maintain the new cars. In fact so extravagant is this minister that he has allocated over 3 billion shillings for hospitality- samosas and cigars for the grand government. All this while our brothers and sisters are still in IDP camps.

Mr Chairman: The Minister for finance presented a budget full of waste. In our calculations it consists of over 240 Billion Kenya Shillings of wasteful expenditure. The minister of Finance has failed to provide resources for Agenda 4 of the National Accord. The Committee must interrogate the 2009 /2010 budget with a view to amending the appropriations bill which is before this Honourable house this month – November 2009 to provide money for Agenda 4 reforms. This can be done by scrapping all wasteful expenditure.

Mr Chairman: The National Accord reforms are a matter of life and death to millions of Kenyans. This Grand Coalition Government has the mandate only to deliver the National Accord Reforms. It should reflect its willingness to implement these reforms by bringing to this honourable house a budget that reflects the National Accord reforms and in particular the Agenda number 4.

Mr. Chairman: Recall, that we found substantial discrepancies in both supplementary budgets presented this year in May for the FY 2008-9.  Recall also that Parliament unanimously ordered an independent Forensic Audit into the National Budget going back three years. This Audit is yet to begin 6 months later. Kenyans want the forensic audit ordered by Parliament to commence immediately so that we know our true financial position and not continue to operate in ignorance as Treasury is keeping us.  We seek your Committees support for the immediate commencement of the Independent Forensic Audit, and your lobbying the Implementation Committee in this regard.

CMC HOLDINGS LIMITED AND EXTERNAL DEBT ISSUES:
Mr. Chairman: The current Passat controversy revolves also around the Treasury’s unusual decision to procure apparently without any competition 120 VW Passats from one motor dealer – CMC Holdings Limited. 

Mr. Chairman: There are too many things Kenyans don’t know about this contract.  It isn’t listed on the Public Procurement Oversight Authority website.  Treasury hasn’t told the public the terms of the agreement.  Kenyans don’t even know how the CMC dealer will be paid.  In reality all we know is that Government has taken delivery and is distributing over 120 cars from CMC, which has yet to be paid according to an interview with its Chief Executive Officer by The Star newspaper of November 4th 2009.

Mr. Chairman: This company, CMC, features in the external debt register as having lent the Government USD 24.2 million dollars for the purchase from it of 522 Land Rovers for the Office of the President in June 2003.  Treasury issued 25 irrevocable promissory notes in this transaction to CMC and later the debt was held and collected on by Standard Bank London UK who held the irrevocable promissory notes.  Below are extracts from the Government of Kenya’s Statement of Public Debt where CMC Limited and Standard Bank London are listed as creditors to the Government of Kenya.  Repayments are indicated as having taken place as follows:

Creditor:  CMC Limited/ Standard Bank London – Supply of 522 Land Rovers to the Office of the President

Loan US$ 24.2m – Status

2002

2003

2004

2005

2006

Outstanding

887,838,124.00

1,456,640,620.00

0.00

0.00

0.00

Repaid

0.00

0.00

1,918,951,745.00

0.00

0.00

 

 

 

Source: GOK Statement of Public Debt 2002-6 – Ministry of Finance

Mr. Chairman:  Without transparency about the terms of the Passat deal Kenyans fear that this could blow up in our faces at some time in the future in the Anglo-Leasing vein with a new debt appearing on our External Public Debt Register in the future?  CMC’s CEO is reported as stating that his firm hasn’t been paid yet, so it is important that your Committee ask the Minister of Finance for the terms of the purchase and after service contracts which have presumably been executed.

Mr. Chairman: We request that your Committee support Hon. Gitobu Imanyara’s June 3rd request for the tabling of the Statement of Public Debt for the years 2007, 2008 and 2009 which will reveal what borrowings have been undertaken by the Government of Kenya.  The Treasury has claimed that the document sought is voluminous which is not true. Mars group Kenya obtained the same for several years in 2007 from the Permanent Secretary for Finance, through the Head of Debt Management at the Treasury and it was submitted by letter in an official A4 envelope.  Parliament must have these vital documents in order to fulfil its representative function in querying odious debts such as Ken Ren Fertiliser Factory in the National Budget.  Incidentally, Ken Ren was condemned by the Controller and Auditor General’s Report which the Minister of Finance himself tabled in Parliament in June this year. 

Mr. Chairman: All these matters require a longer probe than the short one you have embarked on and we are sure the public would appreciate your solidarity in demanding that Treasury and the Ministry of Finance is fully accountable to Parliament by submitting to the Independent Forensic Audit immediately.

Mr. Chairman: We insist that the External Debt register (in the form of the updated Statement of Public Debt) be tabled in Parliament immediately so that we know what the Grand Coalition Government has borrowed and paid on our behalf. Treasury was asked for the document in Parliament on June 3rd this year and to date has refused to table it in Parliament as a public document for scrutiny. 

Mr. Chairman: Kenyans deserve answers from the Ministry of Finance and Treasury, and we are grateful that this Committee is prepared to ask the questions.

Mr. Chairman: Finally, it is our considered view that a censure motion against the minister of finance is deserved. Kenyans simply don’t trust the current minister of finance with the management of our public resources. 

Mr. Chairman:  We trust our information will be useful to you in your ongoing enquiry and hope that it will contribute towards the ability of the National Assembly watchdog role over the funds of the Kenyan people.  We appear before you in good faith.  We mention this because during the Supplementary Estimates enquiry some members of Parliament held public rallies to condemn us and one member used his privileges to attempt to implicate us on the floor of the House in the high crime of espionage.  We do what we do because we believe in parliamentary democracy and accountability, and are only desirous to make Kenya a better governed and corruption free country.  That is the only way we will develop in an equitable manner.  Kenya belongs to all Kenyans not just the rich and powerful.  The people own the Government and its funds.

Mr Chairman: We are grateful to your Committee, our elected representatives, for taking time to hear us.  With your kind permission we wish to support our Memorandum with supporting documents which we will take you through now.
Dated at Nairobi this 6th day of November 2009, and signed: for the Partnership for Change

Jayne Mati                                           Cyprian Nyamwamu                            Mwalimu Mati

Related Documents

  1. Approved Total Expenditure GOK 2008/2009
  2. Estimates  – Total Expenditure GOK 2009/2010
  3. Approved AIA – 2008/2009
  4. AIA  – 2009/2010
  5. GOK Motor Vehicles Establishement at 2008
  6. Purchase of Vehicles 2009/2010
  7. Fuel, oil lubricants 2009/2010
  8. Routine Maintenance Vehicles 2009/2010
  9. Overhaul of Vehicles 2009/2010
  10. Loans by year as tabled by Peter Kenneth
  11. Loans as tabled by Peter Kenneth by Creditor
  12. Ken Ren Repayments
  13. Statement Ministry of Finance
  14. Daily Nation story ‘Treasury Denies’
  15. Daily Nation Story   ‘Public vehicles on sale at throw away prices’
  16. Debt Register – CMC and Standard Bank
  17. Memorandum

 

 


Mwai Kibaki and Raila Odinga Must Cooperate with the Icc and Ensure the Special Tribunal Bill is Passed and Enacted into Law Within Two Weeks: Fail to Do This and Kenyans Will Starve Your Government of Money.

Mwai Kibaki And Raila Odinga Must Cooperate With The ICC And Ensure The Special Tribunal Bill Is Passed And Enacted Into Law Within Two Weeks: Fail To Do This And Kenyans Will Starve Your Government Of Money.

A Statement by the Partnership for Change issued at Nairobi on 9th November 2009

We are fed up with war lord politicians. Kenya must comply with the Rome Statute by cooperating with the ICC, and cooperation extends to making arrests of the Masterminds behind the Post Election Violence which killed 1,133 Kenyans and displaced over half-a-million citizens in less than 60 days last year. We need to be clear to the Grand Coalition Government that there is no issue of choice here.

Reports in the Press today November 9, 2009 that Kenya may back out of arrest deal with ICC are disturbing to say the least. Who do these people think they are? Kenyans are not idiots to be joked around with by war lord politicians whose vision is one of greed and ruling by the sword. Kenya is a Democracy, where the Rule of Law must prevail at all times.

We wish to remind the two Principals Mwai Kibaki and Raila Odinga that any attempts to derail the ICC will result in a direct indictment against them as individuals who would bear the greatest responsibility for their troops – in this case loose talking Members of Parliament, including Cabinet Ministers and senior Government officials who appear to making statements on their behalf.

We watched on television as Kibaki, Odinga and Ocampo briefed Kenyans on the outcome of their “constructive” discussions. These so called senior Government officials and ministers did not address Kenyans. Who are they to speak now? Whom do they purport to speak for? Kibaki and Odinga should take responsibility and sack anyone who appears to be contradicting the position they presented to Kenyans in the presence of the ICC prosecutor. Failing to act and allowing this irresponsible behaviour can only be construed to mean that these individuals speak on behalf of the Principals.

In such event, then Kibaki and Odinga should also be aware of Article 27 and 28 of the Rome Statute and that they would be facilitating the cover up of Crimes against Humanity.  These two citizens, have a sacred constitutional duty towards facilitating justice for all in Kenya.  They must not fail Kenyans.  If they do they should be regarded as bearing the greatest responsibility for what happened in Kenya in January and February 2008, and face the Hague on the crime of obstructing justice. There is no such thing as power without responsibility.

There are others who are telling the International Community to “Shut Up!” Why? Why should they shut up? Is it because the International Community has taken a decision to support a law abiding public rather than Law breaking Senior politicians and Government Officials? Is it because these individuals believe they can act with Impunity and get away with it? If this is what they believe then they are badly mistaken.  Kenya has changed. The sign of the times is that days are numbered for these kind of people in Kenya. They have no support among the Kenyan Public and can only flex muscle using stolen public funds without which they are just common thugs!

Parliament resumes tomorrow. What Kenyans want to see is a repeat of what we saw that afternoon in March 2008 when all members entrenched the National Accord agreement into our Constitution. Where NOT ONE member objected! We want to see the Gitobu Imanyara Special Tribunal for Kenya constitutional amendment bill passed – without amendments – and fast tracked and signed into Law on the same day! We know that this can happen and we are waiting to see which Member of Parliament will dare vote against a Special tribunal to try perpetrators of post election Violence. The ICC will in December decide the fate of the Masterminds. This is certain now.

President Kibaki and Prime Minister Odinga are advised to ensure that this Bill is passed before the Appropriations bill currently before Parliament, failure to which, we the public will move to stop financing this Government by lobbying our MPs to block taxes to Government that does not listen to the wishes of its people.

The Partnership for Change, a non violent people’s movement for democratic change in Kenya hereby states as follows:

Cognisant that the Government of Kenya raises over 80% of its taxes through VAT – consumption tax, STATE: that if the two Principals, Mwai Kibaki and Raila Odinga of the Grand Coalition Government fail to pass through Parliament and enact into law within two weeks the Special tribunal Bill, the Partnership For Change will ask all Kenyans to consider a National Boycott of all products that attract VAT. This is what every responsible Kenyan (every Kenyan – rich or poor – pays VAT) can do to end impunity in Kenya. It will send a very clear message to the Government that Kenyans want the National Accord reforms implemented.

Signed

Download Pdf Here:
Partnership for Change
9th November 2009

We Are Ready to Lead: Partnership for Change Statement on the Liberation of Kenya by the Citizens of the Republic of Kenya. Issued at Nairobi 29th October 2009

WE ARE READY TO LEAD: PARTNERSHIP FOR CHANGE STATEMENT ON THE LIBERATION OF KENYA BY THE CITIZENS OF THE REPUBLIC OF KENYA. Issued at Nairobi 29th October 2009

So as we approach our first anniversary on 5th November 2009, The Partnership for Change wants to declare to our leaders, that we are now ready to take you on. There are many of us who can lead, many who are not corrupt, many who have integrity and that you our leaders have nothing to offer Kenyans. Your time is up. You are finished!

THE NATIONAL ACCORD REFORMS AND THE REAL DANGERS OF A NEGOTIATED SURRENDER

Conciliation, Compromise, and Negotiations
When faced with the shocking violence that Kenyans saw at the beginning of 2008 after the botched election of December 2007, some Kenyans lapsed into passive submission.
Others, seeing no prospect of achieving democracy, concluded they must come to terms with the apparently permanent culture of impunity, hoping that through "conciliation," "compromise," and "negotiations" they might be able to salvage some positive elements and end the brutalities on Kenyans that were at the time happening on an hour to hour basis.  On the surface, lacking realistic options, there was appeal in that line of thinking.

 Undemocratic option of a negotiated agreement
And so, came the National Accord of February 28th 2008, a pact signed by Mwai Kibaki and Raila Odinga the two principals and witnessed by millions of Kenyans on national television.  Kenyans accepted this undemocratic option of a negotiated agreement, temporarily waiving their Constitutional right to a democratically elected Government, reasoning that -Why is it necessary to go the violence route? Couldn’t everyone just be reasonable and find ways to talk, to negotiate the way to a gradual end of impunity? Couldn’t Kenyans appeal to Kibaki and Odinga’ sense of common humanity and convince them to reduce their domination bit by bit, and perhaps finally to give way completely to the establishment of a democracy?

 "win-win" solution
It is now argued that the truth is not all on one side. Perhaps Kenyans misunderstood the two Principals, who said they acted from good motives in difficult circumstances? Or perhaps some may think, the principals would have gladly removed themselves from the difficult situation facing the country if only they were given some encouragement and enticements. But, the truth as may be argued is that the two Principals were offered a "win-win" solution, in which everyone gains something. The risks and pain of further struggle was unnecessary, it may be argued, if the Kenyan people were willing to settle the post election conflict peacefully by negotiations which were assisted by skilled panel of African Imminent personalities and the International Community.

The negotiated Agreement is yet to be implemented
Now, two years after the signing of the National Accord, The negotiated Agreement is yet to be implemented. The offer by the two Principals of "peace" through negotiations with the people of Kenya was, of course, rather disingenuous. The violence could have been ended immediately by the Mwai Kibaki and Raila Odinga themselves, if only they wanted to stop waging war on their own people. They could have at their own initiative with  out any bargaining restored respect for human dignity and rights, allowed the population to protest, halted police brutality, stopped the rape of women, and apologize to the people. They would have most certainly ensured that all Kenyans were registered to vote.

Kenyans should be wary of the traps that may be deliberately built into a negotiation process by politicians. The call for the National Accord, when basic issues of political liberties were involved may have been an effort by the politicians to induce Kenyans to surrender peacefully while the violence by the Grand Coalition Government continued.

On some basic issues such as civil liberties, there should be no compromise
When the issues at stake are fundamental, affecting democratic principles, issues of human freedom, or the whole future development of Kenya, negotiations do not provide a way of reaching a mutually satisfactory solution. On some basic issues such as civil liberties, there should be no compromise. Only a shift in power relations in favor of the Citizens of Kenya can adequately safeguard the basic issues at stake. Such a shift will occur through struggle, not negotiations such as the National Accord.

Negotiations are not a realistic way to remove a strong culture of Impunity
This is not to say that negotiations ought never to be used. The point here is that negotiations are not a realistic way to remove a strong culture of Impunity in the absence of a powerful democratic opposition by the Citizens of Kenya. The two Principals- Mwai Kibaki and Raila Odinga are operating in a culture of Impunity where they, feel secure in their position and may refuse to implement the negotiated National Accord Agreement. Indeed we argue that Kibaki and Odinga have failed to deliver on the National Accord reforms.

Whatever promises offered by Mwai Kibaki and Raila Odinga in the National Accord Agreement, and however much time we give them, no one should ever forget that Mwai Kibaki and Raila Odinga  may promise anything to secure submission from people of Kenya, and then brazenly violate that same agreement. "For the tyrant has the power to inflict only that which we lack the strength to resist,"

WE WANT NON VIOLENT DEMOCRATIC SOLUTIONS TO KENYA’S PROBLEMS.

Kenya is a multi party Democracy! We elect our leaders through a democratic dispensation through the ballot. The people of Kenya give their government its right to govern. The way in which this right is obtained is important. If there is any doubt about the legitimacy of the process, then people can question this authority. Free and fair elections are of great importance wherever leaders seek to legitimise their power through the electoral process. An illegitimate electoral process can lead to a lack of accountability and therefore a climate of corruption, Impunity and lack of interest in governing justly.

long-term historical and societal injustices
Kenyans are vigorously debating age old questions related to justice and forgiveness, because Kenyans after the last General Election experienced the grossest violations of human rights and incidences of grand corruption since our Nation’s Independence on December 12th 1963.  Since February 28th 2008 we have had a Grand Coalition Government whose sole mandate was to address long-term historical and societal injustices in Kenya and to enquire into these grievances to identify and punish the perpetrators so that never again can such violations or corruption occur with impunity. 

 democratic and accountable state.
Kenyans are weary those inquiries into real crimes have led nowhere and that the perpetrators enjoy freedom from justice because of their high political and social connections in Kenya.  The Partnership for Change is completely opposed to impunity of any sort, and decided to mobilize Kenyans to insist on the Rule of Law by which criminal behaviour will be punished regardless of the social status of the criminal.  The chosen method of struggle against impunity is non-violent resistance and actions to educate Kenyans of their constitutional and human rights, and ultimately to create a democratic and accountable state.

Nonviolent resistance
In recent years various dictatorships around the world have collapsed or stumbled when confronted by defiant, mobilized people. Often seen as firmly entrenched and impregnable, some of these dictatorships proved unable to withstand the concerted political, economic, and social defiance of the people. The Partnership for Change has been mobilizing Kenyans since 5th November 2008 and has grown into a large peoples non violent movement for Change.

Nonviolent resistance will further the movement toward democratization. The Partnership for change deals with problems affecting Kenya including poverty, crime, bureaucratic inefficiency, environmental destruction and impunity which are the legacy of the brutal regimes we have had since Independence. The Partnership for Change intends to lift the suffering of the victims of oppression, and open the way for the rebuilding Kenya with greater political democracy, personal liberties, and social justice.

Culture of impunity runs deep
Unfortunately, for Kenya, though we have since 1992 chosen the path of plural democracy and constitutionalism, the past is still with us. The culture of impunity
runs deep, and Kenyans having experienced decades of oppression have developed a culture of unquestioning submission to authority figures and politicians. The social, political, economic, and even religious institutions of the society – outside of state control – have been deliberately weakened, subordinated, or even replaced by new regimented institutions used by the state to control the society.

The Kenyan population has over time been atomized (turned into a mass of isolated individuals) who are unable to work together to achieve freedom, to confide in each other, or even to do much of anything at their own initiative. The result of this process is predictable: the Kenyan population becomes weak, lacks self confidence, and is incapable of resistance. Kenyans are often too frightened to share their hatred of impunity and their hunger for freedom and accountability even with family and friends. Kenyans are often too terrified to think seriously of public resistance. In any case, what would be the use? Instead, Kenyans face suffering and poverty without purpose and a future without hope.

In the past, some Kenyans have attempted resistance. Short lived protests and demonstrations by Civil Society have occurred and crushed by the Government. Perhaps spirits soared temporarily. At other times, individuals and small groups have conducted brave but impotent gestures, asserting some principle or simply their defiance. However noble the motives, such past acts of resistance have been insufficient to overcome the Kenyan Citizens’ fear and habit of obedience, a necessary prerequisite to destroy the culture of Impunity. Sadly, these acts have brought arrests and harassment of Partnership for change agents by the Kenya police, a multitude of unconstitutional cases with huge financial implications in bail funds, but not victories or even hope.

Ending impunity and restoring democratic accountability.
The culture of impunity thrives in Kenya because of the inequitable internal power distribution. The population is too weak to cause the Government and politicians any real problems. Wealth and power are concentrated in too few hands. The Partnership for Change wants to help Kenyans to change the situation for the better by teaching Kenyans non-violent methods to demand the end of impunity and restoration of democratic accountability.

The Partnership for Change is

  • strengthening the oppressed Kenyan population themselves in their determination, self-confidence, and resistance skills;
  • strengthening the independent social groups and institutions of the oppressed Kenyan people;
  • creating a powerful internal resistance force; and
  • Skilfully implementing a wise grand strategic plan for the liberation of Kenya.

Against a strong self-reliant force, given wise strategy, disciplined and courageous action, and genuine strength, the culture of impunity will eventually crumble. Liberation from greedy, selfish leaders ultimately depends on the people’s ability to liberate themselves.

The cases of successful political defiance-or nonviolent struggle for political ends indicate that the means do exist for populations to free themselves. The liberation struggle for Kenyans is a time for self-reliance and internal strengthening of the population of Kenya to demand collectively – Democratic Accountability in our Country.

It is in every Kenyans’ enlightened self interest to be actively involved in the Governance of our Country. The Partnership for Change believes that Change will come to Kenya when every Individual Kenyan understands and acts in their best interest.

THE PARTNERSHIP FOR CHANGE AND THE POWER OF THE PEOPLE OF KENYA

Achieving a Kenya with both freedom and peace is of course no simple task. It will require great strategic skill, organization, and planning. Above all, it will require power. The Partnership for Change cannot hope to bring down Impunity and establish political freedom without the ability to apply the power of the people of Kenya effectively.

But how is this possible? What kind of power can the Partnership for Change mobilize that will be sufficient to destroy Impunity and restore democratic Accountability? The answers lie in an oft ignored understanding of political power.

The principle is simple. The Culture of Impunity requires the assistance of the people of Kenya, without which Politicians cannot secure and maintain their sources of political power. These sources, however, depend on acceptance of the leadership, submission and obedience by the people of Kenya. These are not guaranteed.

Without availability of those sources, the Politicians’ power weakens and finally dissolves. Naturally, our greedy leaders are sensitive to actions and ideas that threaten
their capacity to do as they like. The Government is therefore likely to threaten and punish those who disobey, or fail to cooperate. However, that is not the end of the story. 

“Totalitarian power is strong only if it does not have to be used too often. If totalitarian power must be used at all times against the entire population, it is unlikely to remain powerful for long. Since totalitarian regimes require more power for dealing with their subjects than do other types of government, such regimes stand in greater need of widespread and dependable compliance habits among their people; more than that they have to be able to count on the active support of at least significant parts of
the population in case of need.” Karl W. Deutsch 1953:

We are fighting back
The mission of the Partnership for Change is to advance the strategic use of non-violent action in calling upon the Kenyan Citizen to demand the End of Impunity, Restore Democratic accountability and to end Dictatorship in Kenya. It is time for Change. Real and meaningful Change.- We are determined to get that Change. Yes we can!
The Partnership for Change membership is the individual Kenyan citizen. Man, woman and child. We are millions of Kenyans who want change.  We have great political significance. We will exert influence over the direction of our Country and we will resist the government when it impinges unjustly on our interests, activities, or purposes. We will disintegrate and weaken impunity by courageous massapplication of political defiance by us, the population – the citizens of this Republic.
We are ready to take you on
So as we approach our first anniversary on 5th November 2009, The Partnership for Change wants to declare to our leaders, that we are now ready to take you on. There are many of us who can lead, many who are not corrupt, many who have integrity and that you our leaders have nothing to offer Kenyans. Your time is up. You are finished!

Download PDF Here

 

Mwalimu Mati
Partnership for Change
Nairobi 29th October 2009

 

H.e Kofi Annan, the Former Un Secretary General Has Set Very Low Standards for Kenyans; Statement by the Partnership for Change on the Kofi Annan Visit to Kenya Issued at Nairobi Thursday 8, October 2009

H.E Kofi Annan, the former UN Secretary General has set very low standards for Kenyans. Statement by the Partnership for Change on the Kofi Annan Visit to Kenya issued at Nairobi Thursday 8, October 2009


We watched in disbelief yesterday as former United Nations Secretary General Kofi Annan briefed Kenyans on the outcome of his three day visit to Kenya.

Kofi Annan came for three days and scheduled meeting after meeting with the key players of his negotiated agreement to discuss the progress of the National Accord implementation programme. He did not however meet the Kenyan public who are the raison d’être of his negotiated Agreement.

He did not meet with any of the Victims of the Post Election Violence

He did not visit any IDP Camp

He did not meet with any of the Voters from Shinyalu and Bomachoge, the only Kenyans who currently have voters cards, to ask them what kind of elections were conducted by the Interim Independent Electoral Commission on August 27th 2009.

He did not visit any Police cell or prison

He did not leave the Serena Hotel except to visit Kibaki, Odinga, Moi and Marende.

Instead he met the heads of the Institutions that have been created by the Grand Coalition Government; self selected ‘stakeholders’ and his own secretariat. More or les the same people he met in Geneva six months ago when he started talking about the window of opportunity for the National Accord reforms closing. In March 2009 in Geneva Kofi Annan had the following to say

It is not too late for Kenya’s political leadership to lead. Statesmanlike determination to work together to support, if not initiate, actions to implement the recommendations of the Waki and Kriegler Commissions and some of the ideas emerging from this consultation could have a dramatic, positive effect. But at a time when there is a growing skepticism about the behaviour and motives of the ruling elite, the window of opportunity is closing. Time is running out. There is a need to move beyond criticisms and playing blame games. Every element of Kenyan society has a role to play in taking the country forward and Kenyans should take individual responsibility to contribute to this process. You can be sure that the Panel remains ready to assist in every way and I have no doubt that the international community will continue to support you.”

So 6 months later, and without any reference to the Implementation Matrix of July 30th 2008, Kofi Annan’s Verdict after 17 months of the existence of the Grand Coalition Government is: there has been progress. It’s up to the Kenyan Public to put pressure on their Government and Donors should pick up the tab.

Agenda 4 reforms can be found in the Implementation Matrix of the Long term issues. Here the Government has demonstrated that the Grand Coalition Government is unable, and incapable of dealing with Agenda 4. The Agenda 4 issues require resources for which the Government has made no provisions for. The truth is that there will be no Agenda 4 reforms as there is no money for it. A government that fails at the very minimum to plan cannot be given the responsibility of implementing reforms. We need as Kenyans to be candid and accept our fate. We restate our position that the Grand Coalition Government has reached its sell by date.

Kofi Annan did not bother to restate the timelines of the implementation matrix of the National Accord – the mandate rules of the Grand Coalition Government that gave Kenyans a bench mark to measure the success of the Grand Coalition Government in implementing the reforms.

In telling Kenyans to push their Government Kofi Annan failed to tell Kenyans how they were to go about this since there is no democratic space to even don t-shirts in protest. Letters are issued by the Police barring citizens from freedom of protest and expression.

Kofi also asked donors to pay for the folly of the Grand Coalition Government without asking the same Government to provide resources for the Implementation of reforms. As he was making this request the Grand Coalition Government was issuing cheques for hundreds of brand new cars and the IDP’s were sleeping in the cold.

Reports by the BBC that Kenyans were rearming were dismissed by Kofi Annan as rumours and mere criminality – rather than clear evidence of impunity requiring immediate action; rather than the harbinger of crimes against humanity being planned in the Rift Valley.

Apart from that, why did Kofi Annan disappoint?

Kofi Annan set very low standards for Kenyans. Just because Kenya is a not a first world country, does not mean that we do not understand Democracy and the Rule of Law. It does not mean that we want standards lower than the rest of the World. We want to be clear his reform window of opportunity analogy has worn thin, and is now meaningless.

We wish to point out three weaknesses with the way the reform process is going on in Kenya today and then point out 5 practical things that should be pursued to change the direction and pace of reform in order to attract;

Problem analysis

During the KNDAR mediation, the National Civil Society Congress proposed to the Kofi Annan Mediation Panel and the Kenya National Dialogue and Reconciliation Committee that the best solution to the post election crisis was a transitional government for only two years but this was turned into a five year transitional period. This effectively removed the pressure points and incentives for the political class to undertake the reforms stated in the final National Accord Agenda. In fact the political class in Kenya thinks that Kenyans lost their right to elect a clean, lean, effective, accountable and responsive government (CLEAR government). Kenyans have overwhelmingly called for a fresh election because nearly 74% of Kenyans according to an April 2009 Steadman Opinion Poll, do not approve of the performance of this coalition government.

Kofi Annan understands that by accepting the role of mediator he effectively became a servant of the people of Kenya seconded to Kenyans by the African Union. But he seems to tread too carefully in advocating for the people of Kenya before the political leaders he had of necessity to deal with. He accepts at face value what Kenyans have seen through as delay tactics or even outright lies. During yesterday’s press conference he refused to castigate the Government for issuing false statements to the effect that 90% of the reform agenda had been accomplished. And yet every presentation to him indicated that the situation was extremely desperate and dire. Speaking the truth to our Government is what we expect from Kofi Annan. This he may very well have done behind closed doors, but yesterday he missed an opportunity to show his empathy for the victims of this Government’s misconduct and mismanagement. We foresee this as a strategic error in his mediation mission and fear yesterday’s press conference will diminish his respect in the eyes of Kenyans should God forbid things fall apart in Kenya.

So we addresses Kofi Annan as Kenyans he chose to serve and wish to outline that this Coalition government firstly:

a) Is NOT Clean; Your Excellency we have evidence to show that more than 60% of our cabinet consists of Ministers who have been involved in corruption, misuse of office and of individuals who have been involved in the violation of the rights of Kenyans or condoned the same. It is Public knowledge that some cabinet ministers are suspects who might have committed crimes against humanity earning the infamous distinction of being in the Waki envelope. This does not tell us of a clean government. Parliament has been used as forum for dealing where huge bribes are offered to obtain votes. The Judiciary is known to be corrupt. Where are the reformers that will drive the reform Agenda then if we do not turn to the people?

b) It is NOT Lean- such a bloated cabinet and government that remain highly wasteful. Wastage of public funds and resources has given profligacy a new face. Yet as expected, large government is always non effective because you can not coordinate 93 ministers and assistant ministers that are seen to be ODM and PNU ministries effectively.

c) It is NOT Effective- Kenyans are starving and dying all over the nation. There is no policy coherence. The much rumored about harmonized PNU-ODM Manifesto has never been published so the people of Kenya simply do not know what the policies of this government are. The 5 year Development plan based on the vision 2030 does not seem to be followed by any one in government.

d) It is NOT Accountable- corruption has just risen and no one seems to face punishment for the corruption that is all over the country from the local councils, parastatals, in ministries or at State House.

e) It is NOT Responsive – impunity remains intact. Kenyans are being killed by the police; The National Accord from Agenda 1 to 4 has been handled so badly. That same government is using our taxes to do propaganda about reforms.

The Partnership for Change published a technical assessment on the delivery so far on the whole National Accord Agreement from Agenda 1 to 4 and we found that far from the propaganda doing rounds and held as the truth in government circles, the National Accord Agreements, which are Law in Kenya are not being implemented.

Secondly Sir, Last Year during the negotiations, the National Civil Society Congress and the Vital Voices called for a 21-member National Accord Implementation Oversight mechanism to over see the signed National Accord Agreement. The oversight Body would be necessary to ensure that the reform process can and shall be owned by the widest cross section of Kenyans and not by the two principals and the parties in government. This was not granted.

We are very frustrated that the politicians are basically in charge of holding themselves to account. Even progress reports from outside government do not have any impact on the catalyst and facilitative role you are playing to promote implementation of the National Accord. The Partnership for change wrote to you a letter in February 21, 2009 but we have never received a reply from your office Sir.

Thirdly, Clearly the government is not interested in implementing the National accord in accordance with the wishes and demands of the people of Kenya but according to the wishes of the cabinet and PNU and ODM. We therefore in Principle, find it a serious miscarriage of the people’s right to democratic participation in processes concerning them when we do not strong citizens participation in the implementation of the National Accord.

As Kenyans we propose the following five concrete steps to Implementing Reforms

1. The immediate establishment of a 21 member National Accord Implementation oversight Committee to work with the Panel of eminent Africans to ensure the systematic assessment and oversight. We will need a carefully selected Committee of serious and independent-minded Kenyans who represent the widest cross section of the Kenyan nation to sit on the Oversight Committee.

2. That a clear road map be outlined by this Oversight Committee. This is the road map that shall offer clear standards and benchmarks against which the government and all National Accord Implementation bodies and agencies shall be held to account. Right now we are groping in a discretionary Assessment environment. Kenya has since the pre- independence struggle fought for democratization using universal standards as first enshrined in the UN Declaration of Human Rights and the later International Covenant on Civil and Political Rights. This is how we have been advancing our democracy. Kofi Annan is too easy on those violating the peoples’ rights. Now is the time that the standards have been lowered below what can be acceptable to the people of Kenya.

3. That Kofi Annan’s office immediately releases a provisional progress report on the progress. It must be a report that enjoys the greatest input from the agencies that are working on the reform agenda and not government. It must be current to October 2009 – the South report is now out of date. Finally, Government cannot be a referee in its own assignment.

4. We propose that the International Community delivers to the government our clear message that the National Budget as currently partially passed by the National Assembly clearly shows government is not interested in implementing the National Accord. The Partnership for Change has completed a detailed analysis of the National Budget- the most elaborate government policy tool- and we have found out that government is not putting the money where it is required – rather spending is actually away from the National Accord reform priorities. For example the Government Spokesman’s advertising budget is larger than the individual allocations to the Truth Commission and the Witness Protection programme. We want government to review its spending priorities to reflect the National Accord priorities – the Appropriation Bill pending before Parliament should be amended to reflect a new focus as implied by Kofi Annan’s final statement. The window of opportunity for the political elite to continue to perpetrate a fraud on the public by retaining status quo under the guise of lack of resources for implementing the National Accord should be slammed shut now.

5. Lastly, Kenyans are concerned that the voices of the women and the youth of Kenya have become even further marginalized under the Grand Coalition than ever before. Kenyans do not want to be spectators in the governance of their country. These two constituencies represent the vast majority of the livelihood interests of Kenyans. We call for the immediate structural and policy steps to improve the playground for the youth, women of Kenya and the people of Kenya generally. This includes for example the passage of a budget that implements a 60% developmental and 40% recurrent expenditure policy. This will release resources for reforms will benefit the youth and women of Kenya first.

We also recommend that, as the religious leadership and we the Partnership for Change have said before, to ensure that the National Accord is implemented to save our nation from a fresh round of conflict, the Interim Independent Electoral Commission should be empowered to immediately register all Kenyans as voters to vote in the referendum but also to vote for a CLEAR government as soon as possible before 2012. We are keen to cut short the suffering of Kenyans who may be asking themselves: why did Kofi Annan actually come to Kenya and what does he plan for us on his next visit? Hopefully, not another indefinite lease of life to this non-performing Grand Coalition Government OR more talk of reform windows of opportunity closing. Truth is you lose a day every day that we do not implement reforms and no one can predict the exact date the reform window slams shut in our faces. That was a disappointing visit but since it is our country it is truly only our responsibility as responsible citizens.

Issued at Nairobi Thursday 8, October 2009

MARS GROUP KENYA

NCEC

For and on Behalf of the Partnership for Change

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