Mzalendo's Weekly Newsletter

Issue No 46: 17 - 23 August, 2015

News of the Week:
  • Treasury Principal Secretary Kamau Thugge was grilled by the Public Accounts Committee (PAC) of the National Assembly over the unaccounted for Sh67 billion queried in the auditor-general’s latest report. The MPs queried the PS how the national government would fail to account for such a huge amount. The MPs also asked why the Controller of Budget did not deposit about US $2 billion — proceeds from the Sovereign Bond — in the Consolidated Fund Account as required by law, instead depositing the money in “an offshore account”. The PAC members also observed many “grave” financial irregularities, including the expenditure of huge sums of public funds by line ministries without parliamentary approval as stipulated by the Constitution and financial regulations. Mr. Thugge admitted that the threshold of “supported accounts” is documents for every transaction and that there were discrepancies in revenue and expenditures in certain ministries. He insisted that in all the expenditures and revenue, his ministry followed expert advice from accountants and that no money had been lost, only that the documentation was the problem. The PS noted, however, that accountants from various ministries had presented their recommendations to the office of the Attorney General on how to curb the irregularities, but were ignored. He said the controversies cited in the auditor-general’s report emanated from four main areas that include unexplained expenditures, unbalanced figures, funds carried forward from 2012/2013 financial year, and the foreign bond. Mr Thugge told the committee that the sovereign bond — where the country borrows money from external sources — was a new phenomenon and the country was just learning how to manage such funds. This could have led to the discrepancies, he said. He denied assertions by the MPs that the sovereign bond borrowing was made to finance the Sh327 billion standard gauge railway. The $2 billion sovereign bond loan will mature in 2018 and 2024, he said, with $500 million to be paid within the first five years at an interest rate of 5 per cent. The last tranche, $1.5 billion, will be paid in the next 10 years, he said.
  • An attempt by an MP to serve a court order to administrators of an institution in Isiolo North backfired after the community held him hostage for 24 hours. Police had to rescue Laikipia North MP Hon. Mathew Lekidime from Ndugu Zanguni Christian Community centre at Ol Donyiro market after members of the community became rowdy and attacked him with stones. The MP and some Italians are embroiled in a legal battle over the control of the institution which offers medical help to children suffering from heart diseases. Before his election to Parliament, the MP was an administrator at the institution. Mr. Lekidime spent about 24 hours in one of the houses in the compound where he and his team had retreated to after the community became hostile and besieged it.
  • The Consumer Federation of Kenya (Cofek) wants MPs to end fuel price fixing. If this happens, the Energy Regulatory Commission will lose powers to fix fuel pump prices if parliament adopts policy changes in the Energy Bill 2015. Cofek argues that the move will liberalize and make the market competitive noting that the current monthly pump price review only benefits oil marketing cartels. Cofek which has been the main critic of ERC's monthly fuel price fixing, argues that it is vulnerable to abuse and is not pro-consumer.  It says the commission's balancing act in setting prices is always in favor of oil marketers' margins under the justification that the cost of doing business in the country is high.
  • Senator James Orengo has petitioned the Government to strengthen the laws governing the issuance of identification cards upon application to registration centres. If Mr. Orengo gets his way, Kenyans will no longer have to wait for two months after application to get identification cards (IDs). Orengo said decentralising the issuance of IDs would enable easy and quicker access to the vital document to ensure every eligible Kenyan gets to exercise their democratic right of voting in 2017. The legislator added that with the technology in Kenya today, it is possible for Kenyans to apply and get IDs immediately instead of waiting for months. Orengo lamented that a lot of people wait for up to a year to get their IDs despite the fact that it is their constitutional right to have the document. 
  • The Council of Governors (CoG) clashed with the National Assembly’s Health Committee over the state of health services in Kenya. While the MPs insisted that the quality of health services had deteriorated, CoG maintained the services had improved after devolution. CoG said the view taken by the committee was informed by "negative news" in the media. The governors were meeting the committee to discuss the Health Bill, which has been introduced in the National Assembly through its first reading. The committee has been taking views from the public before the Bill moves to the second reading. Bomet Governor Isaac Ruto said the salaries of county government workers including governors had been delayed because of issues emanating from the National Treasury. Health workers from across the country have been complaining about delayed salaries, with many yet to receive their July pay.
  • Gatundu South MP Hon. Moses Kuria has demanded that the incitement charges against him before The National Alliance party’s disciplinary committee be terminated. Kuria made the application for termination when he faced the committee at the party headquarters in Nairobi. Through his lawyer Danson Mungatana, the MP, known for his acerbic public statements, argued that he faces the same charges of incitement in the High Court.  When Kuria first appeared before the committee last week, he objected to the charges saying they were vague, forcing the committee to draft them afresh. It appears that Kuria has again pulled a surprise on the committee, which was preparing to commence proceedings against him, by making an application for termination. If the case against Kuria proceeds and he is found guilty, he may be expelled or suspended or compelled to issue public apologies or pay fines. 
  • A lawmaker wants Nairobi Governor Evans Kidero asked to pay the government Sh577 million for value added tax allegedly lost by Mumias Sugar Company when he was in charge. Mumias East MP Hon. Benjamin Washiali has also proposed to the National Assembly that a report of the Agriculture Committee be amended to bar the governor from holding public office for his alleged role in the sugar miller’s financial woes. The MP submitted the proposed changes to the House as Jubilee and Cord members prepared to take their wars over sugar to the National Assembly. 
  • Members of the National Assembly yesterday overwhelmingly backed an amendment to the Constitution to shield them and their colleagues in the county assemblies from prosecutions for "anything done... in good faith" as they go about their work. Even when they leave the Legislature, they say, their sins should not follow them in their retirement. MPs also want the Judiciary blocked from interfering with anything being discussed in the National Assembly, Senate or in 47 county assemblies or even from entertaining any suit against lawmakers if the suit is filed to question incompetence or illegalities in the course of their work. The Constitution of Kenya (amendment) Bill, 2015, was filed in March by Homa Bay Town MP Hon. Peter Kaluma. If approved, the constitutional amendment will join the Parliamentary Powers and Privileges law that protects MPs from prosecution for anything said on the floor of the House. Kaluma, who wants to give elected representatives in the national or county governments blanket immunity, says in the memo of the bill that a representative (MP or MCA) is "not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a function of Parliament or County Assembly. The MPs argued that because they do not interfere with matters in court, courts too should stay away on matters ongoing in Parliament. 
  • All Ethics and Anti-Corruption Commission staff will now be vetted afresh, after MPs failed to raise enough numbers to overturn a recommendation by President Uhuru Kenyatta. The President, through a presidential memorandum, had asked that the EACC Act be amended to include a clause requiring that the staff be taken through a mandatory vetting instead of targeting only two members of the commission’s secretariat. To overturn the suggestion, the House was supposed to raise two-thirds of the total members (233) but the House was largely deserted when the President’s proposals were brought for adoption or rejection. Members who had put up amendments to delete the proposals in the memorandum were forced to drop them upon seeing that they could not raise the requisite numbers. The President’s recommendation was to counter a proposal to kick out EACC chief executive Halakhe Waqo and his deputy, Michael Mubea, that was proposed through an amendment sponsored by Kiminini MP Hon. Chris Wamalwa. The Bill will now be sent back to the President after the House adopted it and the vetting will commence upon its assent.
  • Police officers who demand money from Members of Parliament after providing them with security at public meetings could soon find themselves in trouble. The MPs have reported them to Interior and National Co-ordination Cabinet Secretary Joseph Nkaissery for possible action. Members of the National Assembly Security and National Administration Committee complained to the CS that they are tired of greasing the hands of the officers, yet it is their duty to provide security at such meetings. They demanded an explanation on why the police have been waylaying them at the end of political rallies demanding for payment. The law allows the Inspector General of Police to deploy officers to an area upon request by an individual or institution. 
  • The acting Labour secretary Raychelle Omamo was hard pressed to explain why her ministry did not forestall the retrenchment of 447 Kenya Airways employees, and the subsequent hiring of 517 staff shortly thereafter. Ms Omamo was appearing before a Senate committee that is investigating affairs at the loss-making national carrier, which reported a Sh25.7 billion net loss in the year to March 2015. Among the issues that the senators are investigating is staff retrenchment at the airline, which is said to have caused resentment between the workers and the management. KQ laid off the employees in 2012 citing the airline’s poor financial performance and declining profitability. The airline then hired some 517 foreign workers through a recruiting agency Career Direction Limited. The foreign employees were given Class D permits that is normally given to more experienced aviation workers and were paid higher salaries than the retrenched staff. The Senate joint committee sought to know why a statutory notice issued to the ministry by KQ about an impending retrenchment was not acted upon. The National Assembly has challenged the senator’s constitutional authority to investigate affairs at KQ, but Sen. Prof. Anyang' Nyong'o said the law mandates both Houses of Parliament to summon any person to provide information during an inquiry.
  • Parliament's Public Investment Committee (PIC) questioned investment decisions and firing of senior managers at the National Bank of Kenya (NBK), even as they insisted the bank is not up for sale and that its business strategy was sound. Top of the list was selling of 12 branches and firing of 290 senior staff, among them managers, in the ongoing restructuring at the bank in which the Government has significant stake. Claims that the bank advanced millions of shillings to one of its directors also featured during the sitting. NBK Chief Executive Officer Munir Ahmed was further tasked to provide details of the sale of the branches. He, however, did not provide actual figures on the assets sold but informed the committee the sale prices were above the market value. MPs claimed the decision to sell the assets and the ongoing changes at the bank had been "choreographed to lower the standing of the bank so that some individuals can buy it at a throwaway price". The bank boss said over 200 staff voluntarily retired, among them managers who opted for early retirement as they were close to the requisite age Ahmed said the bank was doing well as opposed to reports, adding that the restructuring provided a better working environment for its growth. He told the committee that the bank recorded a profit before tax of Sh707 million in the first quarter ended March 31, 2015, an improvement from the Sh588 million posted in a similar period in 2014. The committee also questioned the reason behind Capital Market Authority not allowing the bank to launch a rights issue.
Editorial:  Extending time to pass key Constitutional Bills must be done prudently

MPs will have an informal Kamukunji to change the dates for the passage of key Constitutional Bills as August 27th nears without them discussing them as stipulated in the Constitution. A total of 28 Bills were required to have been passed by August 27th. The House requires a two-thirds majority of 233 MPs to be present and voting to extend the deadline of any constitutional Bill from the date set in the Constitution. Legislators have claimed that the delay is due to failure by key institutions to draft and publish the Bills in time for debate. Perhaps the wisdom of not wanting to rush Bills is to ensure they are accorded the quality time they deserve so as not to pass half-baked laws that will have a grave impact on the republic. CIOC has proposed 12 months extension to pass the Bills. These Bills have a huge impact on Kenya as they directly affect the core of the country. They should be prioritized as a matter of national importance. Read more

Quote of the Week

Sentiments by Hon. Judah Ole Metito during discussions on the Media Council Bill 2013 on the 14th November, 2013

“The media is very important to the society as it has been alluded to by my colleagues who have spoken. It can be used for very many important and positive aspects. Let me just quote about four. One, the media can play a very critical role in bringing national unity and cohesion in the country. That is a very positive element of the media. It is also important to note that the media can be used to portray the country in a very positive way through imaging globally. You will remember when we were with you in Massachusetts; the Speaker of the House of Representatives said, “We are ready to continue giving Kenya more aid on one condition; that they will not bring athletes to run in Boston again”. We asked him why and he said, “Because I have a son who is a runner and he will never win so long as Kenyan athletes are in the race”. That has been known because of the positive imaging of this country by our media. Thirdly, the media can as well be used for economic development of the country by highlighting investment opportunities and tourism opportunities that are in a country. So, this is a very positive element that the media can be used for. Finally, the media can be used to build human resource capacity in the country through informing and educating the masses. An informed and educated society is very productive. The media can play that role.” Read hansard

Lest we Forget!


Question by Hon. Wilber Ottichilo to the Minister of Justice on the realization of gender parity/equity in national assembly and senate on 29th August 2012.

“…(a) how the Government will ensure that there will be gender parity and equity in all elective positions and more specifically in the National Assembly and the Senate as contemplated in Articles 27(8) and 81(b) of the Constitution which provides that not more than two-thirds of the Members of the elective public bodies shall be of the same gender, is realized in the 11th Parliament; and, (b) whether he is aware that there is a high potential of a constitutional crisis if the above matter will not have been addressed before the next General Elections.” Read hansard

Newsmaker this week:

National Assembly Speaker Justin Muturi ruled that only the High Court can determine if a Bill seeking to move the General Election date from August to December requires a referendum. Mr. Muturi said any Bill touching on a constitutional amendment should be subjected to a court interpretation, dealing a blow to the draft law that is already before the House. Its sponsor, Ugenya MP David Ochieng, may now have to seek the interpretation at the High Court before bringing it back to the House, although the speaker did not categorically ask him to do so. The proposed law has sparked controversy. Mr. Muturi said the National Assembly was not the right place to determine whether a constitutional amendment should be subjected to a popular vote or not. He was responding to concerns raised by lawmakers last week that the proposed law could require a referendum. “The question of whether or not the Bill proposed by the member for Ugenya should be subjected to a referendum is that of construing and interpreting the Constitution. “Indeed, any attempt by the Speaker to make such a determination would be in blatant violation of the Constitution, which, pursuant to Article 165 (3)(d), gives the High Court the jurisdiction to hear any question requiring the interpretation of the Constitution,” said Mr Muturi. Profile

Bills in the National Assembly 

Bills at the Committee of the whole House

The Fisheries Management and Development Bill (National Assembly Bill No. 20 of 2014) is sponsored by The Leader of the Majority Party 
Hon. Aden Duale
(The Business Registration Service Bill (National Assembly Bill No.13 of 2015) is sponsored by The Leader of the Majority Party 
Hon. Aden Duale
The Special Economic Zones Bill (National Assembly Bill No. 6 of 2015) is sponsored by The Leader of the Majority Party 
Hon. Aden Duale
The Prohibition of Anti-Personnel Mines Bill (National Assembly Bill No. 7 of 2014) is sponsored by The Leader of the Majority Party 
Hon. Aden Duale

Bills in the second reading

THE EXCISE DUTY BILL (NATIONAL ASSEMBLY BILL NO. 28 OF 2015) is sponsored by The Leader of the Majority Party Hon. Aden Duale
THE FINANCE BILL (NATIONAL ASSEMBLY BILL NO. 27 OF 2015) is sponsored by Chairperson, Departmental Committee on Finance, Planning and Trade Hon. Benjamin Langat
THE POLITICAL PARTIES (AMENDMENT) BILL (SENATE BILL NO.3 OF 2014) is sponsored by Chairperson, Departmental Committee on Justice and Legal Affairs Hon. Samuel Chepkonga
THE STATUTE LAW (MISCELLANEOUS AMENDMENTS) BILL (SENATE BILL NO. 4 OF 2014) is sponsored by Chairperson, Departmental Committee on Justice and Legal Affairs Hon. Samuel Chepkonga




Public Participation

The National Assembly is seeking contributions on the Magistrates Courts' Bill 2015. The Bill has undergone first reading and has been committed to the Departmental Committee on Justice and Legal Affairs for consideration and thereafter report to the House. Written memoranda can be sent to the Clerk of the National Assembly P.O. Box 41842 – 00100 or hand delivered to the office of the Clerk, Main Parliament Buildings or emailed to on or before Wednesday 26th August 2015 at 5.00pm

The National Assembly is seeking contributions on the Kenya Defence Forces (Amendment) Bill 2015. The Bill has undergone first reading and has been committed to the Departmental Committee on Defence and Foreign Relations for consideration and thereafter report to the House. Written memoranda can be sent to the Clerk of the National Assembly P.O. Box 41842 – 00100 or hand delivered to the office of the Clerk, Main Parliament Buildings or emailed to  on or before Thursday 27th August 2015 at 5.00pm

Senate on recess

The Senate adjourned on Thursday last week until Tuesday, 15th September, 2015

Kenya Defense Forces Bill 2015

There is a draft Kenya Defense Forces Bill 2015 which proposes to amend the current Act and has a raft of far reaching amendments. You can download and read it here

Access to information Bill

There is a draft Access to Information Bill 2015 which intends to give effect to Article 35 of the Constitution; to confer on the Commission on Administrative Justice the oversight and enforcement functions and powers and for connected purposes. You can download and read it here

Kenya to see changes in the land sector

The government is planning to change the law on the acquisition of land for big projects in a bid to lock out speculators who are front-running the State by acquiring the parcels and seeking heavy compensation. Authorities are reviewing the rules on compulsory land buying to save its major projects from being stalled or delayed due to lengthy exchange processes. Acting Lands Cabinet Secretary Fred Matiang’i said the plan will ensure that the cost of acquiring land is manageable. Land acquisition has threatened to stall the construction of the standard gauge railway with governors in areas where the line passes leading residents to protest over poor compensation. It has been the same for big infrastructure such the Lamu coal plant, wind farm in Nyahururu with road constructions also falling in this category. To address this, Lands Principal Secretary Mariam El Mawi said the government is finalizing authentication, verification and digitization of land records to ensure that all registries go online and are interconnected. The government will then finalize the mapping of the various transport and logistics corridors set to be constructed while giving ample safeguards for critical infrastructure more so the pipeline, which requires adequate buffer zones. The move, according to the PS, will help the government consolidate all land records and ease access to investment and the development of infrastructure.

Prominent personalities with large parcels of land that were acquired irregularly will be compelled to give them back to the public if a Bill before Parliament is passed into law. The Community Land Bill of 2015 states that whereas a community claiming or occupying land identifies the extent and the boundaries of its land to the satisfaction of the Land Cabinet secretary, the registrar may commence the process of reverting the land to the said community. A land report compiled by lawyer Paul Ndung’u and released in 2004 named prominent personalities and families as having engaged in grabbing of huge tracts of public land. The proposed law is expected to address increased cases of land disputes in the country that have left scores injured and others killed. The Bill states that community land will have to be registered and every member of the community allowed to benefit equally from it. The Lands CS will have powers to make regulations to ensure provisions in the Constitution on community land rights are upheld. The Bill seeks to provide for recognition, protection and registration of community land rights besides providing for how to manage and administer community land. It will also spell out for the role of county governments, particularly in dealing with unregistered community land. The county governments will hold in trust all unregistered community land on behalf of the respective communities. The CS may also provide guidelines for converting other categories of land into community land and the fees payable for any application or the issuing of a certificate for the land transactions. Land owned by a pastoral community shall be available for use by all the members for the grazing of their livestock in line with the registered community’s conditions. The community land may, however, be converted to public land through compulsory acquisition, transfer or surrender by the registered owners. However, the State will only compulsorily acquire such community land for public purpose in accordance with the law and upon prompt payment of just compensation to the person or persons. The community land may be held as communal, family or clan or reserve land. The CS also has a role to play in determining royalties to communities from income generated from resources within community lands. The Bill also gives every Kenyan a right to, either individually or in association with others, acquire and own property.

Bills sets out formula for sharing of oil revenues

County governments where oil will be extracted are the biggest beneficiaries in the sharing of revenues coming out of the resource. According to the Petroleum (Exploration, Development and Production) Bill, 2015, the devolved units will get 20 per cent of the national government share with oil companies. Communities will also get another five per cent, leaving the national government with 75 per cent that will go to the exchequer to be distributed to other parts of the country through the national budget. The amounts allocated out of the shared revenue, however, should not be twice those set aside by the National Assembly in that year. Residents in these counties will also have their share to be used to fund projects and offer services, and will be managed by a trustee on their behalf. The amount should not, however, exceed a quarter of that due to the county government in consultation with the local community. An Upstream Petroleum Regulatory Authority will be established to oversee the activities in the sector that is expected to contribute significantly to the economy in a few years. 

IEBC registers 81, 923 voters

Only 81,923 Kenyans have registered as voters since April 2013. This is despite concerted efforts by politicians and various groups to encourage the youth to enlist as voters ahead of the 2017 elections. The figure exposes a perceived voter apathy among young people, who appear non-responsive to political campaigns and the continuous voter registration campaign by the Independent Electoral and Boundaries Commission. In an interview with the Nation the poll agency’s chief executive, Mr Ezra Chiloba, called the number discouraging, given the huge interest in acquiring ID cards. In the last national voter registration drive in 2012, 5.6 million people registered by the National Registration Bureau were listed as voters. Details obtained from the bureau indicate that 1.9 million Kenyans have acquired new IDs since 2013, in total contrast to those seeking voters’ cards. This portrays an unexplainable lack of interest in voter registration by the ID applicants.

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