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THE COMMISSION ON ADMINISTRATIVE JUSTICE
Office of the Ombudsman
Hata Mnyonge ana Haki
REPORT OF THE PUBLIC FORUM ON GOOD GOVERNANCE
THE HILTON HOTEL, NAIROBI
27TH MARCH 2015
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TABLEOFCONTENTS1.0
INTRODUCTION...................................................................................................................................32.0
BACKGROUND...................................................................................................................................33.0
JUSTIFICATION.....................................................................................................................................44.0
OBJECTIVES.........................................................................................................................................45.0
TARGET
AUDIENCE.............................................................................Error!Bookmarknotdefined.6.0
EXPECTED
OUTCOMES......................................................................Error!Bookmarknotdefined.7.0
SESSIONS AND THE
PANELISTS..........................................................Error!Bookmarknotdefined.8.0
EMERGING
ISSUES..............................................................................................................................59.0
RECOMMENDATIONS.......................................................................................................................7
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1.0 INTRODUCTION
On 27th March 2015, the Commission on Administrative Justice
(Office of the Ombudsman) convened a half day Public Forum on Good
Governance to discuss the nature and extent of corruption, impunity
and maladministration, and propose solutions to these problems. The
Forum drew participation from key stakeholders in the governance
sector, both government and non-governmental, and members of the
public.
2.0 BACKGROUND The adoption of the Constitution in August 2010
marked a major turning point in the history of Kenya.The
Constitution, which created the Second Republic, has transformed
the governance structure and relations in the country thereby
crystallizing good governance and constitutionalism. In addition,
the Constitution has strengthened accountability mechanisms and
renewed the policy, legal and institutional frameworks for
sustainable development. A notable development is the tacit
description, indeed, prescription of the concept of sovereignty of
the people, national values and principles of governance,
leadership and integrity and creation of institutions supporting
good governance. Notwithstanding the above prescriptions, Kenya has
recently been faced with governance challenges that have threatened
its very foundation and prompted public debate on the need for
enforcement of the Constitution. Notably, Kenya has recently had
unprecedented incidences of maladministration, corruption and
impunity, which point to the possibility of poor governance.
Whereas public debate is healthy, it is worth noting that there has
been no formal and organised platform of engagement affording key
stakeholders an opportunity to engage and come up with a
consolidated approach to tackling the challenges. For this reason,
efforts of stakeholders have been lost in informal public debate.
It is on this premise, that the Commission convened the Public
Forum on Good Governance to provide the much needed space for
engagement on these governance issues and chart the way
forward.
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3.0 JUSTIFICATION Governance is a key determinant for growth,
development and poverty alleviation. The question of governance,
therefore, determines the ability of any country to deliver
services to its people, as well as the quality of those services.
In the context of governance, transparency and accountability are
some of the hallmarks of a functional democracy. It is in this
regard that the Constitution of Kenya has placed premium on good
governance, as discernible in its substantive and structural
frameworks. For instance, the Preamble provides thus a government
based on the essential values of human rights, equality, freedom,
democracy, social justice and the rule of law. This is further
supported by the national values and principles of governance under
Article 10 of which the rule of law, participation of the people,
human rights, good governance, integrity, transparency and
accountability are part. Further prescriptions of accountability,
transparency and acceptable standards of behaviour in public sector
are found under various provisions, including Chapters Four, Six
and Thirteen of the Constitution. The enforcement of these
provisions has been bestowed upon a number of institutions, notably
the three arms of government and the constitutional commissions and
independent offices. In performing their functions, these bodies
are required to work closely and complement each other. The public,
too, have a role to play in ensuring good governance. Corruption,
impunity and maladministration are some of the major obstacles to
the realisation of good governance in Kenya. They undermine the
ability to deliver services and erode public trust in government
and its agencies. It is, therefore, not only important but
necessary to find ways of nip them in the bud. Charged with the
responsibility of enforcing administrative justice in the public
sector by addressing maladministration, and promoting good
governance and protecting the sovereignty of the people, the
Commission organised a public forum to discuss issues ailing
governance in Kenya, as an entry point in addressing these
challenges.
4.0 OBJECTIVES The main objective of the Forum was to provide a
platform for engagement with the public and various stake-holders
to examine the nature and extent of corruption, impunity and
maladministration, and chart the way forward. Specifically, the
Forum aimed at achieving the following objectives: To provide a
platform for exploring ways of addressing maladministration,
corruption and impunity in Kenya.
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To create a common understanding of the mandates of key
institutions in governance and their place in addressing bad
governance. To guide debate on maladministration, corruption and
impunity for proactive participation by the public. To explore ways
and manner of collaboration among the institutions of governance in
addressing bad governance.
5.0 THE FORUM
The Forum was designed to focus on three major issues in the
context of the theme, Good Governance. First, was the appreciation
of the context through a situation analysis. Second, was the
interrogation of the institutional efficacy, approaches and
remedies, and lastly, the way forward. The Forum underscored the
fact that poor governance and lack of accountability and
transparency manifest themselves in corruption. Corruption is a
blight on development wherever it occurs, and contributes to the
perpetuation of social and economic inequities. There was also an
appreciation of the move by President Uhuru Kenyatta to begin to
address corruption in Government. The President on 26th March 2015
in his Annual State of the Nation Address, directed that any
officials adversely mentioned in a confidential Ethics and
Anti-Corruption Commission Report should step aside to pave way for
further investigations and possible prosecution.
5.1. EMERGING ISSUES The following issues emerged from the
deliberations.
1) Chapter Six of the Constitution was noted to be the least
successfully
implemented. The Chapter which deals with issues of integrity
and leadership was noted to have been constantly abused by both the
leaders and the citizens.
2) Democracy is about transparency and accountability in
Government. Corruption and maladministration have been and remain
to be the major scourge preventing economic growth and stability in
Kenya. They are
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barriers to national development - infrastructural growth, trade
and investment and erosion of societal moral fabric.
3) Corruption and maladministration are closely related to
ethnicity, the enemy of national unity and good governance.
4) Devolution was mainly associated with decentralisation of
power and resources to the counties. However, it was noted that
although devolution was good, it had been abused as corruption was
rampant in the devolved units.
5) A major constraint in fighting corruption was delayed action
on corruption cases and failure to prosecute those implicated in
corruption thereby perpetuating the culture of impunity.
6) The anti-corruption and anti-maladministration agencies and
public
oversight authorities were undermined by inadequate political
will and limited resources. This in turn affected their performance
thereby undermining good governance.
7) The Public Audit Bill then pending before Parliament was in
contravention of Article 249(2) (b) of the Constitution. Clause 40
of the Bill prohibits the Auditor General from making public
particular information in a public report if it would prejudice the
security, defense or international relations of the Government of
the Republic of Kenya. It was noted that this would restrict the
functioning of the Auditor General and impede good governance.
8) The problem of land grabbing of both public and private land
was a manifestation of challenges in the governance system. It was
noted that those implicated in land grabbing scandals were still
holding public offices and unpunished.
9) Lack of prosecutorial powers by the Ethics and
Anti-Corruption Commission was identified as one of the reasons for
rampant corruption in Kenya. This issue was, however, hotly
contested with some members opining that EACC does not need
prosecutorial powers. A different thinking on the matter was that
civic education on issues of integrity and governance was the
solution to engender an informed public.
10) The threat by the Executive to control institutions such as
the civil society organizations and the Media was identified as a
challenge to good governance.
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11) It was noted that the protection accorded to whistleblowers
was
inadequate, and had non-reporting of corruption and other
malpractices.
12) Access to information on certain public institutions was a
big challenge as some were closed and others had outdated
information, which undermined public participation on issues that
affected them.
13) Those implicated in corruption scandals should not only step
aside pending investigations, but also resign or be removed from
office.
14) It was noted that a number of public officers implicated in
corruption usually rushed to court to stop lawful action against
them. Worse still, such cases took long to be concluded. This
undermined the principle of separation of powers where such action
was vested in a particular State Organ, and the efforts towards
good governance.
6.0 RECOMMENDATIONS
Maladministration, Corruption and Impunity continue to thrive
despite various measures put in place to curb the vices. In order
to deal with these unsavory and unethical practices, the following
recommendations were made:
1) There is need to re -examine the entire legislative framework
and identify the gaps in the laws that establish oversight agencies
in order to seal the loopholes to make the agencies be
effective.
2) There is need for a national campaign and civic education to
educate the public on corruption and maladministration.
3) Institutions mandated to oversee the implementation of
Chapter Six of the Constitution need to hold each other to account
with regard to aspects within their respective mandates.
4) There is need to have a single government integrity
coordinating agency to co-ordinate integrity matters. In addition,
the oversight institutions should build an inter-agency
co-operation and collaboration.
5) The Judiciary should be bold and clear in determining
integrity matters and it should define the bare minimum standards.
Further judicial officers who preside over corruption matters
should be taken through specialised training on corruption.
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6) The IEBC must enforce its powers under Article 88 to vet
those interested in elective posts.
7) Conduct of lifestyle audits for State and Public Officers
need to be done and enforced through legislation. Illegally
acquired wealth should be confisticated.
8) In light of the scourge of corruption and maladministration
the relevant legislation needs to be amended to negate the
presumption of innocence in such matters.
9) There should be timelines for action on reports and
recommendations by oversight institutions.
10) Stiff penalties and sanctions should be meted out to public
officers who have been charged with corruption and
maladministration.
11) There is need to overhaul the Companies Act as the loopholes
therein create an enabling environment for corruption.
12) Harness technology to ensure corruption is reported and
promptly acted upon.
13) There is need to review the law on the protection of
whistleblowers. 14) Laws on election financing should be reviewed.
Every political leader
should be required to file a budget on all electoral heads and
account for the money spent.
15) The National Anti-Corruption Policy should be developed to
guide the anti-corruption activities in the country.
16) Investigators in corruption related cases should conduct
thorough, investigations for effective prosecution and
adjudication.
17) National Integrity Systems should be formed and values
inculcated from an early educational level.
18) Efforts should be made towards ensuring that Chapter Six of
the Constitution is self enforcing.
19) Parliament should enact a Politicians Code of Conduct and
institute processes to have undisciplined politicians dealt
with.
20) The Judiciary should be held to account in as far as
upholding the Constitution is concerned. The prohibitive rule
requiring one to deposit a sum of Ksh. 1,000,000 before approaching
the Supreme Court in relation to Presidential elections should be
repealed since it undermined good governance.
21) A list of shame bearing the names of those people accused of
integrity violations should be published regularly.
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Hata Mnyonge Ana Haki
PUBLIC FORUM ON GOOD GOVERNANCE
27TH MARCH 2015
VENUE: HILTON HOTEL, NAIROBI
TIME: 8.00AM 1.00PM
MODERATOR: DR. OTIENDE AMOLLO, EBS CHAIRPERSON, COMMISSION ON
ADMINISTRATIVE JUSTICE
TIME SESSION
8.00- 9.00a.m Arrival and Registration
Situation Analysis
9.00 10.00a.m Hon. Abdikadir Mohamed, Senior Constitutional
& Legislative Advisor to the President Mr. M. A. Ogolla -
Office of the Controller of Budget Mr Humphrey Wanyama, Deputy
Auditor General Mr Samuel Kimeu, Director, Transparency
International (Kenya) Mr George Kegoro, Executive Director,
International Commission of Jurists (Kenya)
Institutional Efficacy, Approaches and Remedies
10.00 11.00a.m. Hon. Sen. Amos Wako, Chairman, Senate Committee
on Legal Affairs and Human Rights Cmmr. Mumo Matemu, Chairperson,
Ethics and Anti-Corruption Commission Mr Jacob Ondari, Deputy
Director, Public Prosecutions and Head of County Affairs &
Regulatory Prosecutions Mr Ndungu Wainaina, Executive Director,
International Centre for Policy and Conflict
Way Forward
11.00a.m. 1.00p.m Prof. PLO Lumumba, Director, Kenya School of
Law
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Ms Lilian Omondi, Vice Chairperson, Law Society of Kenya
Ms Atsango Chesoni, Executive Director, Kenya Human Rights
Commission
