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Anticorruption Review

September 24, 2010

WRITE UP ON:

 

 

 

SURVEY ON THE PERFORMANCE OF ANTI-CORRUPTION AGENCIES

 

 

 

 

 

WRITTEN BY: PAUL O. OGENDI

 

 

 

 

SUBMITTED TO:OKETCH-OWITI


 

TABLE OF CONTENTS

 

  • Introduction   4
  • GLOBAL SCENE ON CORRUPTION.. 7
  • LOCAL SCENE ON CORRUPTION.. 8
  • TI Global Report on Corruption 2006-Kenya.. 9
  • Legal and institutional changes. 9
  • Challenges  10
  • Investment Programme for Economic Recovery Governance. 13
  • Role of Ministries  15
  • The National Anti-Corruption Plan.. 16
  • ANNEX 1: SPEECH BY THE HON. JUSTICE AARON G. RINGERA EXECUTIVE DIRECTOR/CHIEF EXECUTIVE KENYA ANTI-CORRUPTION COMMISSION DURING THE NATIONAL ANTI-CORRUPTION PLAN STAKEHOLDERS’ CONFERENCE, 30TH MAY 2006 AT THE BOMAS OF KENYA.. 17
  • Analysis of other Countries Approach on Corruption.. 20
  • HongKong  20
  • South Africa   22
  • Uganda   27
  • Corruption ‘decentralised’ along with government functions. 30
  • What Government has done so far in Kenya.. 32
  • Prosecution   35
  • STATISTICAL SUMMARY OF CRIMINAL CASES FINALISED IN COURT FROM MAY 2003 TO DATE ( NAIROBI ONLY) 35
  • Statistical Summarry of files forwarded to the attorney general. 35
  • Judiciary   36
  • Chief Justice Evan Gicheru rules on corruption.. 36
  • Analysis of performance. 39
  • THE ROLE OF THE JUDICIARY, KENYA ANTICORRUPTION COMMISSION (KACC) AND THE ATTORNEY GENERAL IN THE FIGHT AGAINST CORRUPTION: ANALYSIS OF AREAS OF DIVERGENCE AND DIVERGENCE WITH SUGGESTIONS FOR THE FUTURE. 76
  • The role of the judiciary in the fight against corruption.. 77
  • The role of K.A.C.C. in the anti-corruption crusade. 79
  • The role of the Attorney General in the fight against corruption.. 80
  • The Comprehensiveness of the Anti-Corruption and Economic.. 81
  • Crimes Act   81
  • 1. Defining the offence of “corruption” and “economic crime”. 81
  • The Independence of the judiciary in the fight against corruption.. 90
  • The Independence of the office of the Attorney General in the. 90
  • fight against corruption.. 90
  • The relationship between the AG’s office and KACC. 92
  • Comparative Appraisal – The Case Of Lesotho.. 92
  • Recommendations and Conclusions. 95
  • Kenya Anti-Corruption Commission performance. 96
  • INVESTIGATIONS  96
  • Reports received by the Commission.. 96
  • Ongoing Major Investigations. 97
  • Sting Operations  97
  • Covert Operations  98
  • Challenges  99
  • TRACING AND RECOVERY OF ASSETS. 99
  • Investigations for Asset Tracing. 100
  • Traced Public Assets  100
  • Recovered Public Properties. 102
  • Recovery of Embezzled Public Funds. 103
  • Asset Recovery Proceedings. 103
  • Implementation of Reports by Watchdog Agencies and Institutions. 103
  • Challenges faced in the course of Asset Tracing and Recovery.. 104
  • PREVENTIVE SERVICES. 105
  • National Anti-Corruption Plan (NACP). 105
  • Public Service Integrity Programme. 105
  • Development of Information, Education and Communication (IEC) Materials. 105
  • Training, Research,Advocacy and Governance (TRAG). 106
  • Outreach Programme  106
  • Training of Trainers  107
  • Anti-Corruption Training and Sensitization Seminars. 107
  • Media and Communications Programmes. 107
  • CORRUPTION PREVENTION.. 108
  • Systems Reviews (Examinations and Corruption Risk Assessments). 109
  • Registration and licensing of motor vehicles and enforcement of traffic laws. 109
  • RESEARCH PROGRAMMES. 110
  • National Corruption Perception Survey. 110
  • Enterprise Survey  111
  • Ministry of Finance. 111
  • Introduction   112
  • Public Sector Reforms. 112
  • Deepening Ministerial Rationalization.. 113
  • Strategic Planning  113
  • Staff Rightsizing  113
  • Results Based Management (RBM). 114
  • Waste Free Clean Up Kenya Campaign. 114
  • Performance Contracts. 114
  • Ministry’s Capabilities and Competences. 115
  • 6 Corruption   118
  • SPEECH BY MR. M. G. WAWERU, COMMISSIONER GENERAL OF KENYA REVENUE AUTHORITY DURING THE EAST AFRICAN REVENUE AUTHORITIES COMMISSIONERS GENERAL MEETING…. 121
  • God bless you all. 124
  • Governance Justice Law and Order Sector.. 124
  • Role of MOJCA and GJLOS. 127
  • The new government and GJLOS. 127
  • Ethics, Integrity & Anti-Corruption. 130
  • National Anti-Corruption Campaign Steering Committee. 130
  • The seven critical pillars of the Government.s plan are: 131
  • Cabinet Committee on Corruption. 132
  • Public Complaints Unit 132
  • Declaration of Assets and Wealth. 133
  • Governance Dividend  133
  • Governance, Justice, Law & Order Sector Reform Programme. 133
  • LEGISLATIVE REFORMS.. 135
  • The Anti-Corruption & Economic Crimes Act, 2003. 135
  • SOCIAL PROGRAMMES. 136
  • ROLE OF THE PRIVATE SECTOR.. 136
  • THE CHALLENGE  136
  • Investigation and Prosecution of Corruption and Economic Crimes. 137
  • Public Education and Corruption Preventive Services. 139
  • Press and Media Reports Analysis.. 140

Political prosecution. 141

  • Be careful on proposal to grant amnesty to looters. 142
  • No talks on dubious deals, says AG.. 143
  • Conclusion Summary.. 144
  • Kenya May 25 2004  145
  • Economic Recovery Strategy (ERS) for Wealth and Employment Creation, June 2003. 146
  • Economic Recovery Strategy. 146
  • III……………………………………………………………………… Reforms instituted under ERS (contd.). 147
  • Allocation of Land.. 147
  • Legislative Reform  -Challenges. 148
  • Judicial Reform Judicial Reform.. 149
  • Some Indicators of Government Performance. 149

 

 

 

 

 

 

 

 

 

Introduction[1]

Whilst corruption is a universal problem, it is currently particularly harmful in some developing countries where there may be more opportunities and fewer resources for controlling it. Corruption exists in all societies to varying proportions and Kenya is no exception. The country has experienced corruption since pre-independence days. Corruption has contributed to decline in economic growth, deterioration of infrastructure, inadequate health facilities, and drugs, running down of public institutions, and increased poverty incidences, among others. Kenya’s economy recorded a negative growth of -0.3% by 2000 – the worst performance since independence. Currently over 56% of Kenyans live below the poverty line, therefore efforts to combat corruption directly support goals to eradicating poverty and promoting human security for all and contributing to achieve the UN’s global development agenda in several key areas, popularly called the millennium development goals.

A survey of perception of corruption in Kenya (2002) shows that Kenyans (93%) believe that corruption has caused much harm to the country and that up to 84% have been personally affected by corruption. Transparency International Corruption Perception Index(1998, 2000, 2002, 2003, 2004) shows the performance of Kenya where in 1998 it was  placed 73rd out of the listed 85 countries; 1999, 90th out of 99 countries surveyed; 2000, 82nd out of 90; 2001, 84 out of 91 countries while in 2002 , 96th out of 102 and in 2003 it was 123rd out of 133; in 2004 it was ranked 124 out of 146 countries; The daily bribery survey (2002) shows that Kenyans pay an average 16 bribes  a month simply to get on with their lives, indicating there is a widespread culture of corruption.

Corruption may be costing Kenya as much as US$ 1billion a year, nearly a quarter of the governments annual spending[2]. It should be noted that failure by the government to prevent corruption in the 1990s led to donors’ suspension of crucial development aid to the country for about a decade.

Official records reveal that some of the earliest efforts in fighting corruption in Kenya started in the colonial era in the 1920s. These efforts led to the enactment of Prevention of Corruption Ordinance (Cap 65) in 1956. The legislation was not in foresight that corruption will occur in later years but because the phenomenon was then serious enough to warrant a specific law to deal with it. Largely because of realization that this problem has worsened in the 1980s, this law (now an act) was amended in 1992 to create the Anti-Corruption Squad in the police department. However, the force was only active for a short while and in 1995, it was disbanded. The act was again amended in 1997 to create the Kenya Anti-Corruption Authority with investigative and prosecutorial powers. The act was in a surprise declared unconstitutional by a constitutional court in 2000 and subsequently dissolved.

In 1998, parliament constituted a parliamentary select committee on corruption. It was broadly mandated to explore the origins, causes, and effects of corruption in Kenya and report back to parliament. The committees work culminated in a report on corruption in Kenya, which was tabled before parliament in June 2000. The committee also proposed the Anti-Corruption and Economic Crimes Bill (2000) to replace the prevention of corruption Act (Cap 65)

The enactment of the Anti-Corruption and Economic Crimes Act 2003, the Public Officers Ethics Act 2003, and the establishment of the Kenya Anti-Corruption Commission in May 2003 are some of the new government’s measures to fight corruption. The two Acts provide an improved legislative platform for the fight against corruption in Kenya.

The other measures include the purge on the Judiciary through a judicial integrity committee in September 2003. other anti-corruption entities in the country now includes Ministry of Justice and Constitutional Affairs(MOJCA) and a National Anti-Corruption Steering Committee which was launched by the government in 2004 to spearhead a country – wide anti-Corruption awareness raising-campaign and the committee is composed of representatives from government, civil society and the private sector. In the recent past, various stakeholders in preventing and fighting corruption. These include the media, NGOs, Public, and private sector institutions, civil society, religious organization, professional bodies, and associations. This emergence of several organizations fighting corruption in the country arises from an understanding that no person or organization however powerful or committed can win the war alone. It will require the participation of all individuals and institutions, incorporating a variety of approaches, to overcome corruption.

 

GLOBAL SCENE ON CORRUPTION

Corruption can be found in all walks of life. It hinders economic development, diverts investments in infrastructure, institutions and social services and also undermines efforts to achieve other country specific targets.

The international community has become increasingly concerned with the problem of corruption and its negative impact on economic growth and poverty alleviation. Development partners, international organizations, non-governmental organizations and academic experts on corruption have advocated for an integrated and comprehensive approach to fighting corruption around the globe. This includes: introducing new or mended legislation aimed at reducing public officials’ opportunities for rent-seeking; building alliances with other governments in the struggle against corruption by signing international anti-corruption agreements; and the implementation of anti-corruption programs. Action against corruption is high on the global agenda. Anti-corruption efforts by the international community have led to the establishment of global and regional

Initiatives to fight corruption. Among them are the UN Convention against Corruption; the African Union Convention on Preventing and Combating Corruption; the UN Convention against Transnational Organized Crime; the UN Declaration against Corruption and Bribery in International Commercial Transactions; and the International Code of Conduct for Public Officials. In addressing the problem of corruption, a number of countries in Africa and Asia have developed and implemented anti-corruption initiatives with varying levels of success. Experience from successful countries like Hong Kong, Singapore and Botswana have taught us that there are at least six important components to any anti-corruption strategy namely:

(i) Raising awareness and public education;

(ii) Institution- building across all sectors (judicial, legislative, executive, private, civil society, media);

(iii) Prevention;

(iv) Enforcement;

(v) National and international anti-corruption and

(vi)Money laundering legislation; and,

(vii) Establishing partnerships at the national and international levels

LOCAL SCENE ON CORRUPTION

Corruption is a complex and multifaceted phenomenon and is as old as Kenya’s history. Corruption emerged in tandem with the systematic distortion of socio-cultural values that governed the African way of life. Virtues such as reverence for elders and people in authority and the traditional hospitality of gifts or token exchange got perverted and were transformed into outright demands for bribes before service could be rendered.

In the 60s and 70s overt corruption in Kenya centered on opportunities presented by interventionist policies through which the State sought to manage economic activities. The political and economic reforms of the late 80s through the early 90s, particularly the liberalization of foreign exchange and trade regimes, eliminated many of the earlier opportunities where corruption manifested itself. However, other forms of corruption such as bribery in revenue collection, property transfers, and procurement, emerged. Poor institutional governance and ineffective law enforcement have led to distorted public policy thus leading to misallocation of resources. As a show of commitment to the fight against corruption, Kenya was the first country worldwide to ratify the United Nations Convention against Corruption (UNCAC), signing this landmark international treaty prior to all other signatories, including the host country, Mexico. The Government has also signed the African Union (AU) Convention on the Prevention and Combating of Corruption. Kenya adopted the UN Convention against Corruption and has made great strides in the fight against corruption. Key among these is the publishing of the Witness Protection Bill, to provide for protection of whistle-blowers in line with the UNCAC. There has also been vigorous enforcement of the Anti-Corruption and Economic Crimes Act, 2003 and the Public Officer Ethics Act, 2003. In addition, in an attempt to fight organized crime, both national and international, the Government is working on Anti-money laundering and the proceeds of crime legislation. That law, when it comes to pass, will assist in the tracing, freezing and eventual confiscation of the proceeds of all crimes.

Other initiatives undertaken by the Government in the fight against corruption include:

a) The abolition of harambees in government offices and the proscription of public servants from presiding over harambees.

b) Initiatives to end land grabbing in Kenya.

c) The establishment of commissions of inquiry with mandates and responsibilities to address and resolve significant existing problems, for example, the Commission of Inquiry into the Goldenberg Affair and the Commission of Inquiry into Land-Grabbing in Kenya referred to as the Ndung’u Land Commission.

d) The purge on the Judiciary to weed out corrupt elements from the seat of Justice.

e) Introduction of a professional, performance-driven, results-based, management style of government.

f) The overhaul of the administration of parastatals and semi-autonomous Government   Agencies through execution of service charters, execution of performance contracts by Chief Executive Officers and the implementation of a Monitoring and Evaluation system by the central government.

g) The return to meritocracy in public sector appointments.

h) Enhancement and improvement of democratic space, transparency and accountability in all public institutions in Kenya,

i) Legislative reforms geared towards combating corruption such as the Public Procurement and Disposal Act, 2005 and The Privatization Act, 2005. Besides these strides in the fight against corruption, it is critical to note that the war on corruption is not an event, but a process. A successful anti-corruption strategy must incorporate these facts and understanding if it is to succeed in the long run.

TI Global Report on Corruption 2006-Kenya[3]

Legal and institutional changes

  • John Githongo, President Mwai Kibaki’s special adviser on governance and ethics,

resigned in February 2005. The Minister for Justice and Constitutional Affairs subsequently announced in April that the office would be scaled down because the Kenya Anti-Corruption Commission was already performing some of its functions (KACC), which became operational in February 2005.[4] Githongo’s resignation and the diminution of his office could weaken the fight against corruption and may signal that corruption is no longer on the president’s list of priorities (see below).

  • In August 2004, parliament passed a law on public procurement and disposal. The law is aimed at establishing transparent and accountable procedures for procurement and the disposal of unserviceable, obsolete or surplus stores and equipment by public entities. It also proposes the establishment of a public procurement oversight authority.
  • In June 2004, the Commission of Inquiry into Illegal and Irregular Allotment of Public Lands published a report on illegal allocation of land under previous governments.

It recommended the need for a redress policy to ameliorate the crisis resulting from the illegal allocation of public land and, in particular, public utility land. The report further proposes the enactment of legislation to ensure that the revocation process is conducted

effectively and to modify any existing obstructive provisions in Kenya’s land laws. It

also proposes the establishment of a land titles tribunal to review suspect cases. At the

time of writing, however, very few of these recommendations had been implemented

Challenges

There is growing pessimism about the government’s fight against corruption. Part of the problem lies in the government’s lack of a coherent anti-corruption strategy and its inability to investigate and prosecute new cases of graft. As President Mwai Kibaki, who came to power in December 2002, has been unable to stamp his authority on the fragile National Rainbow Coalition (NARC), he has built new alliances, including some with members of the previous government who are suspected of corruption. This makes it risky for him to take drastic measures against corrupt political and administrative heavyweights, as it could take only a few arrests to make the entire coalition crumble.

Indeed, the president’s chief adviser on governance and ethics, John Githongo, resigned in February 2005, frustrated by new corruption networks and what was perceived as ineffectual support from the president.

 In February 2005, the US and German governments suspended millions of dollars of grants they had promised in support of anti-corruption programmes in the wake of Githongo’s resignation and the government’s failure to deal with known cases of corruption.[5]  Other donors stated that they were reviewing their stance, but requested to see steps taken to combat new cases of corruption.[6] Also in February, the British High Commissioner, Edward Clay, announced he had presented a dossier to the authorities detailing alleged graft in 20 procurement contracts, and demanded a full and transparent investigation of them.[7] This is only the latest in a series of setbacks. The president’s main strategy in 2003 was to create new anti-corruption institutions and set up inquiries into past scandals. The new institutions have proved to be ineffectual, however, and inquiries inconclusive. For instance, a report by the Commission of Inquiry into Illegal and Irregular Allocation of Public Lands, presented to the president in June 2004, made sweeping recommendations, proposing changes to the law and demanding that illegally obtained land titles be revoked.[8] Grants of government land were widely abused under the former government. The Ministry of Lands has promised action, but little has been taken since the report’s publication, except for the eviction of squatters, which critics see as a political move.[9] The fate of the Public Officer Ethics Act is also indicative of the weakening fight against corruption. The 2003 law requires public officers to disclose their assets and eschew conflicts between private interests and public duty. But asset disclosures are confidential and inaccessible to the public.  In the meantime, the fate of prominent political figures allegedly involved in the Goldenberg scandal, which is estimated to have cost Kenya more than US $600 million, has yet to be decided. These include former president Daniel arap Moi, the former vicepresident and current education minister, George Saitoti, and the former finance minister and vice-president, Musalia Mudavadi.[10] In another high-profile case, known as the Anglo-Leasing scandal, six people were charged in February 2005, including senior government officials, but no cabinet members resigned in the wake of the scandal. Even where reforms have been attempted, as in the judiciary, they are incomplete. For example, tribunals set up in 2003 to investigate High Court and Court of[11] Appeals judges suspended for corruption were halted in late 2004 by a spate of litigation by the judges concerned. This could make it harder to appoint such tribunals in future. In April 2005, the Kenyan branch of the International Commission of Jurists released a report on judicial independence and accountability. It pointed out that measures aimed at fighting corruption in the judiciary were not in accordance with international standards, noting in particular that publicising allegations of corruption against judges and magistrates before they had been notified themselves was deeply irregular. Concerns were also raised about the lack of transparency in disbanding the tribunals set up to investigate judges, and the subsequent creation of new tribunals.[12] In September 2004, the commissioners of the Kenya Anti-Corruption Commission were appointed with Aaron Ringera, a prominent judge, as its director. While this could restore some public confidence, the KACC lacks the power to prosecute and its investigations depend on the diligence of Attorney General Amos Wako, who is embroiled in a scandal of his own. In July 2005 the High Court of Kenya asked President Kibaki to appoint a judicial tribunal to suspend Wako over alleged misconduct,[13] after the Law Society of Kenya filed a  private case against him over allegations of abuse of office and failure to prosecute corruption cases. Wako used his powers to terminate the case, but the legality of this move – when he himself was the subject of the indictment – is before the Constitutional Court. In the meantime, the alliance between civil society and the government is crumbling and key civic groups have pulled out of joint anti-corruption initiatives. In February 2005, the Child Rights Advocacy, the Documentation and Legal Centre, the Coalition on Violence Against Women, the International Commission of Jurists Kenya, the Kenya Human Rights Commission, the Centre for Minority Rights and Development, TI Kenya, the Federation of Women Lawyers, the National Council of NGOs and the Law Society of Kenya all suspended their participation in the Governance, Justice, Law and Order Sector reform programme, citing loss of faith in the government’s commitment to anti-corruption reform. Earlier, representatives of the Federation of Women Lawyers, TI Kenya, The Standard newspaper and the Institute for Education in Democracy resigned from the National Anti-Corruption Steering Committee, the government–civil society body launched in May 2004 to lead a national anti-corruption campaign. Its executive director, Jane Kiragu, also resigned, saying the committee needed more logistical support than was available. In August 2005, while opening a meeting for anti-corruption officials in Nairobi,[14]  Minister for Justice and Constitutional Affairs Kiraitu Murungi admitted that the NARC government’s fight against corruption had lost momentum. The prognosis for the future fight against corruption is not good. In December 2004, Transparency International published the Global Corruption Barometer 2004, which showed the persistence of corruption in Kenya and low levels of public confidence in the government’s ability to deal with it. Some 36 per cent of Kenyans reported that they or their family members had paid a bribe in the past 12 months.[15] The police topped the list of the most corrupt institutions by scoring a figure of 4.3 on an index of 1 to 5. This appeared to correlate to rising levels of insecurity. Political parties, parliament and customs ranked next. Though 41 per cent of Kenyans thought that corruption would decrease, 55 per cent thought that it would stay the same (20 per cent) or increase (35 per cent). TI Kenya’s 2005 Kenya Bribery Index paints a similarly gloomy picture. Incidences of corruption have fallen somewhat, but the average size has increased, particularly in dealings with the judiciary and police. More than 57 per cent of those surveyed believed that corruption in Kenya has remained the same.

Investment Programme for Economic Recovery Governance

Most of the problems bedeviling Kenya and its people arise from the many years of bad governance and poor economic management. The rapidly growing poverty, food insecurity and economic collapse are largely related to the previous government’s inability to manage the country affairs in the best way possible. The poor management, excessive discretion in government, appointments of people of dubious characters and political interference and lack of  respect for professionalism led to widespread   corruption, gross abuse of public office in many government departments and incorrigible tolerance – if not outright encouragement of mediocrity and lack of standards. For these reasons the solution of the current national crisis is to be found in our ability to reclaim professionalism and confidence in public officers, and guaranteeing efficiency.

In an effort to revive the economy and meet the expectations of Kenyans for better living conditions, the starting point is better governance, improved security in the country and restoration of the rule of law.

These steps are necessary because bad governance, insecurity and breakdown of the rule of law have led to misappropriation of productive resources thereby undermining economic development by discouraging investors, both local and foreign, raising the cost of doing business, and leading to the withholding of financial support by Kenya’s development partners. The impact of these adverse developments are manifested in the decline in economic performance, increase in poverty and galloping unemployment over the years.

The NARC Government has demonstrated strong commitment to addressing Kenya’s problems of governance. The measures already taken or in the process of being implemented include:

  • The creation of a new Ministry of Justice and Constitutional Affairs and a new department, under the President’s Office, in charge of Governance and Ethics;
  • The passage into law in May 2003 of two key pieces of legislation:-

(a) The Anti Corruption and Economic Crimes Act which created the Kenya Anti-Corruption Commission with responsibility to investigate corruption and economic crimes; and

(b) The Public Officers Ethics Act which provides for codes of conduct for all public officers including members of parliament, the executive and the judiciary, and which compels all officers to declare their wealth including that of their spouses and dependent children.

  • Arraignments in Court of persons involved in corruption; The Attorney General and the Anti-Corruption Police Unit are producing quarterly reports on progress made in investigating and prosecuting cases of corruption;
  • The establishment of task forces to review all contracts relating to jobs undertaken for Government and for which payments are pending;
  • The recommencement of the constitutional review process in April 2003 with a view to early establishment of a new constitution that will provide a more effective political and institutional framework for governance;
  • The programming for legislation of other governance-related bills such as the Public Procurement and Disposal of Public Assets, Financial Management and Accountability Bill, etc within the 2003/04 Financial Year; and
  •  The establishment of a Commission to investigate and report on the Goldenburg scandal so that proper prosecution can follow and Government can recover some of the money.

Further measures that are contemplated to strengthen governance and human rights include the creation of the Office of Ombudsman to be responsible for investigating reported cases of official abuse of power and establishment of a Truth and Justice Commission to deal with past abuses of human rights and other injustices.

Role of Ministries

The process of reforming government functions has been ongoing for sometime now. The PRSP/MTEF budgeting process has been under implementation since 1999. Within this framework government ministries have been grouped into eight sectors for effective budgeting and management of public resources. The NARC government further refined this by taking into account new political dispensation and core functions of the government as defined by the new administration. The eight sectors are: finance; public administration; public safety, law and order; agriculture and rural development; tourism, trade and industry; physical infrastructure; information and communications technology; and the social sector. In addition to these an appropriate macroeconomic framework has been recognized as vital to the realization of strategies specified in each of these sectors. Given the strong Government’s commitment to deliver the election promises and the high public expectation, the government and implementing  agencies are to be held  accountable for the realization of strategies set out in this Strategy.

The responsibility of ministries and government departments are clearly defined in the Presidential Circular No. 1 of 2003. Thus implementing free primary education within the social sector for example is to be executed within the mandate of the Ministry of  education and related institutions such as the Teachers Service Commission.  Reconstruction and rehabilitation of physical infrastructure especially roads and up-grading of slums will be implemented by the Ministry of Roads, Public Works and Housing. Similarly local government reforms, public sector performance, regulatory and competition law reforms, governance, and security issues are to be implemented by the public administration and public safety, law and order sectors. Keeping stakeholders fully informed and on board is crucial to the success of this Recovery Strategy. Consequently, regular sharing of information through workshops, seminars, and even through the information communications technology are an integral part of the implementation, monitoring and evaluation. A quarterly progress report on implementation of this economic recovery programme will be prepared and published by NESC. Collaboration with the non-state partners, the Non-Governmental Organizations and the Civil Society will be coordinated by the relevant sector/ministry to ensure that the participation of all stakeholders is fully integrated in the implementation process.

The National Anti-Corruption Plan

The National Anti-Corruption Plan was launched on 5th July 2006 at Kenyatta International Conference Centre (KICC), Nairobi. Over 600 stakeholders attended the launch from the Executive, Legislature, Judiciary, Private Sector, Religious Sector, Civil Society Sector, Media Sector and the Professional Society Sector. Each sector including the individual Kenya resolved to advance the national governance agenda in fighting corruption.[16]

The national Anti-Corruption Plan defines corruption as-

  • Abuse of position or office for personal advantage or for the advantage of another person;
  • Bribery, theft, embezzlements and fraud;
  • Evasion of payment of government revenues, taxes, rates, fees and other dues;
  • Practicing of nepotism, tribalism, and clanism: The action plan identifies the ; Practicing discrimination on the basis of religion, or gender or disability; Inversion and distortion of social values including soliciting for and giving sexual and other favours; and Negligence of professional ethics.

The government of Kenya continues as a top priority in its agenda, with its policy of zero tolerance in the war against corruption. Although much has been achieved, more remains to be done. The war against corruption will only succeed with support from and active participation of all the stakeholders. A national anti-corruption plan is the rubric within which contribution and participation of all the Kenyan society, and all stakeholders, will be channeled to ensure that there is synergy countrywide.

The action plan identifies specific time bound actions that the country plans to implement during July 2006-June 2007. The key interventions are in the following broad areas:

  • Prevention
  • Transparency and public access to government information;
  • Public awareness and participation in the fight against corruption;
  • Accountability and integrity of government officials;
  • Governance improvement in high priority sectoral ministries and institutions;
  • Investigation of Economic crimes and recovery of assets;
  • Strengthening of the prosecutorial capacity;
  • Strengthening of the legal platform
  • Enhancing the capacity of the judiciary
  • Economic reforms
  • Public financial management improvements;
  • Scaling down the role of the public sector and bureaucracy;
  • Financial sector contribution to anti-corruption;
  • Measurement of results and overall progress.

ANNEX 1: SPEECH BY THE HON. JUSTICE AARON G. RINGERA EXECUTIVE DIRECTOR/CHIEF EXECUTIVE KENYA ANTI-CORRUPTION COMMISSION DURING THE NATIONAL ANTI-CORRUPTION PLAN STAKEHOLDERS’ CONFERENCE, 30TH MAY 2006 AT THE BOMAS OF KENYA

Hon. Minister, Ministry of Justice and Constitutional Affairs, Hon. Ministers and Assistant Ministers in attendance, Hon. Members of Parliament, Hon. Judges, Distinguished Representatives of Stake Holders, Members of the Diplomatic Community here present: All Protocols Observed.

Today’s National Stakeholders’ Conference to discuss this Draft National Anti-Corruption Plan (NACP) is a watershed in the war against corruption in our beloved country. It is the culmination of a long and torturous journey that began way back under the auspices of the then Kenya Anti-Corruption Authority (KACA).

My brief this morning is merely to give some background information on the process that has brought us to this historic day.

However, before I do so, let me say this;

The development of a National Anti-Corruption Plan has been informed by the insight that the war against corruption in Kenya had hitherto been largely ineffective for the reason that it lacked vision, was disjointed and incoherent. We take the view that corruption is a multi-faceted phenomena which requires to be addressed by multiple actors under the auspices of a national plan which recognises the imperative to reduce or eliminate the 

incentives for corrupt conduct and fundamentally alter the inclination to corrupt behaviour in a climate of strong political will to deal with the menace.

Specifically, we realise that the responsibility of fighting corruption cannot be entrusted to one institution such as an anti-corruption authority or commission. Corruption remains an all-pervading social and economic vice which cannot be defeated without the joint collaboration of the Government, the private sector, civil society, the media, development partners, the international community and, above all, the people of Kenya themselves in their individual and group formations.

Consequently, The Kenya Anti-Corruption Authority (KACA) formed a Steering Committee to shepherd the preparation of a national anti-corruption plan. That Committee organised a broad-based, participatory Stakeholders’ symposium at the Kenya School of Monetary Studies in November 2000. The output of the symposium was a Draft National Anti-Corruption Plan document. That Draft NACP was scheduled for validation by 12 sectoral groups following which the Plan would have been launched in early 2001.

This, however, was not to be, as the Kenya Anti-Corruption Authority was declared unconstitutional by the High Court on 22nd December 2000.

The NARC Government came to power with a strong commitment to fight corruption. Measures were taken to clean up the Judiciary, procurement and forests officers were removed from their much-abused offices, Commissions of inquiry were appointed, the abuse of the harambee system was halted while the practice of public land grabbing was brought to a screeching halt.

The government also passed necessary legislation in the form of The Anti-Corruption and Economic Crimes Act and The Public Officer Ethics Act of May 2003 to anchor a sustainable fight against corruption. An anti-corruption Commission was also created.

When in September 2004 my colleagues and I were appointed to the helm of the Kenya Anti-Corruption Commission, we decided that one of the priority programmes had to be the revitalisation of a National Anti-Corruption Plan as its relevance had not diminished in any way. In that regard, the Commission was fully supported by the then new Ministry of Justice and Constitutional Affairs.  

In the endeavour to move the agenda forward, the Kenya Anti-Corruption Commission,

i. Reconstituted the NACP Co-ordinating Committee;

ii. Convened various sectoral consultative meetings.

iii. Collated each stakeholder’s contribution with a view to updating the National Anti-Corruption Plan taking into account the radical changes that had taken place since the year 2001;

iv. Worked with a Steering Committee of Key Stakeholders to organise this Symposium to validate the Draft National Anti-Corruption Plan and

v. Provided secretarial support to the process

Honourable Minister, Ladies and Gentlemen,

At the end of this symposium, if the Draft National Anti-Corruption plan meets the approval of the stakeholders and with your approval, the Commission proposes to:-

i. Underwrite the initial printing of the National Anti-Corruption Plan.

ii. Coordinate a Public launch of the National Anti-Corruption Plan.

iii. Collaborate with sectoral stakeholders in establishing an implementation plan.

iv. Establish a Secretariat to oversee the implementation of the Plan through the support of the Governance, Justice, Law and Order Sector Programme-GJLOS, and

v. Collaborate with stakeholders in conducting periodic reviews of the National Anti-Corruption Plan implementation process.

Hon. Minister, Distinguished Participants,

The Kenya Anti-Corruption Commission has no doubt that a National Anti-Corruption Plan is critical in the Government’s efforts to mainstream the Anti-Corruption agenda and to promote Ethics and Integrity in the country’s individual, corporate and social structures.

With the support of the Government, the legal and institutional framework is already in place. We also have the human capacity and resolve to succeed.

Ladies & Gentlemen,

With those few remarks, it is now my pleasure to invite the Hon. Minister for Justice and Constitutional Affairs to deliver the Keynote Address and officially open the Conference.

Thank you.

Analysis of other Countries Approach on Corruption

 

Hong Kong[17]

HongKong

Bertrand de Speville (de Speville, 1997) discussed Hong Kong’s war on corruption

from the viewpoint of his previous position as Commissioner of the Independent Commission Against Corruption (ICAC). The ICAC is a statutory body established in 1974 whose sole purpose is to fight corruption and which had evolved a three-pronged attack strategy. Hong Kong was highlighted as an example of a society where the incidence of corruption had dramatically decreased over time. The focus of de Speville’s contribution involved an assessment of the transferability and adaptability of the “Hong Kong model”, the costs of the ICAC, the precise character of the model itself, the future of corruption in Hong Kong now that it had ceased to be a British Crown Colony and where there were question marks over the East Asian NIC model of development. Corruption had once been a serious problem in Hong Kong: it was widespread, deeply rooted, well-organised and tolerated. It affected every part of the public services of the Crown Colony. The causes of corruption were related to rapid

population and economic growth, Hong Kong’s recently-arrived immigrant population (principally from China where corruption was endemic) and the administration’s wish to regulate and control the economy. Corruption was also an especially difficult problem in the police force. Public disquiet at levels of corruption, and the disappearance of a senior European police officer under investigation on corruption

charges, precipitated action.

The anti-corruption strategy involved investigation, prevention, education and enlistment of support. A key element of the strategy was the ICAC, which operated in both the public and the private sector and sought to co-ordinate the separate parts of the strategy. It recruited mainly investigators from the police at first,

but also employed civil servants, engineers, accountants, media experts and officers for community relations. The ICAC organized corruption prevention studies for public bodies and private sector companies. It also conducted mass media and public education campaigns against corruption. The character of investigations changed over time, with private sector corruption attracting increasing attention in response to public complaints. In the 1990s there were prosecutions of prominent members of the

business community, including the Chairman of the Stock Exchange. The longer-term effects of the strategy were growing community trust in and support for the ICAC, a cleaner public service and business sector and a greater understanding of corruption and why it is damaging. In terms of the future, de Speville argued that Hong Kong would not slip back into corruption because of its experience in combating corruption, its separate juridical status and the commitments of both the Hong Kong people and the Chinese government. How far the “Hong Kong model” would be transferable is problematic, since it is very  much a product of a particular social environment and polity – a small “city-state” with a distinctive culture and a highly efficient administrative machine operating in a society characterised by sustained high economic growth. The ICAC was well-resourced and used seconded and expatriate staff. It had intensive selection and training programmes and its public education programmes were excellent. While it was thus a relatively expensive model to emulate, it is worth noting de Speville’s comment that the ICAC was not the strategy itself but was a mechanism for implementing the broader strategy that included the enforcement of the law and the winning of popular support.

South Africa

Legal and institutional changes

  • The Division of Revenue Act came into effect in April 2005. Its objective is to promote transparency and equity in the allocation of resources to municipalities and provinces, and to promote accountability by ensuring that all allocations are reflected in their budgets. Corruption is rife at local government level, with serious backlogs of service delivery in many poorer areas. The act is an attempt to improve public expenditure management, although the Financial and Fiscal Commission has raised concerns over the conditionalities introduced through the act in the allocation of funds.

The Financial  Services Ombud Schemes Act 2004 was signed into law in February 2005. The act provides for the recognition of financial services ombudsman schemes; outlines minimum requirements for them; promotes consumer education; and empowers the Ombud for Financial Services Providers to act as a statutory ombudsman in certain cases. Though many providers have been members of  voluntary complaints schemes; unscrupulous, non-member institutions have in the past sold inappropriate products, given inadequate advice or otherwise duped naive, less-literate citizens.

  • The Companies Amendment Act, signed into law in October 2004, aligns company law with the Prevention and Combating of Corrupt Activities Act of April 2004. The amendment empowers the Registrar of the Court to debar directors and other company officers who have previously been convicted of fraud or other criminal activities in the operation of a company, and to maintain a public register of their identities. Such naming and shaming is intended as a deterrent against fraud.
  • The Second National Anti-Corruption Summit in March 2005 resolved to include ethics education in school curricula to raise awareness among young people. The summit also asked the Law Commission to investigate the Protected Disclosures Act regarding the inadequate protection of whistleblowers and to report to parliament by the end of the year (see below).
  • The Johannesburg Securities Exchange Social Responsibility Index launched in 2003 was revised in October 2004 in an attempt to implement the recommendations of the government’s 2002 ‘King 2’ report on corporate governance. The index includes a requirement that companies report on their political donations. The index is voluntary, but it sets a standard and is thought to be the first of its kind in the developing world.

 

MPs incriminated in ‘Travelgate’ scandal

MPs are issued with vouchers each year to defray travel expenses between their constituencies and the parliament in Cape Town. Allegations of misuse of the vouchers first surfaced in 2003, leading to an investigation in which more than 100 MPs and seven travel agencies were questioned in 2004.[18] The alleged frauds included the exchange of vouchers for cash; use of vouchers by family and friends; use of airfare vouchers for accommodation and vehicle hire; and MPs holding shares or receiving financial benefits from the travel agents involved. When two of the travel agents involved were closed down, 40 MPs entered plea bargains with the elite Scorpions investigation unit.[19] The first five MPs were convicted in March 2005, with sentences ranging from R40,000 (US $5,800) or one year’s imprisonment, to R80,000 (US $12,000) or three years in prison.[20] Under the constitution, an MP can only lose a seat if sentenced to more than 12 months’ imprisonment, without the option of a fine.

South Africa now finds that nearly a quarter of its legislators have been incriminated in questionable behaviour.

The confidential report of the investigation, undertaken by PricewaterhouseCoopers (PwC), recommended new investigations and legal action. Parliament appointed a special task team to consider its findings and the National Prosecuting Authority (NPA), which oversees the Scorpions, South Africa’s elite crime unit, is also investigating. The report points out that the entire system for processing air tickets for MPs[21] was overseen by a single employee, whose work was never checked by her superiors. The PwC report says there was insufficient accounting information available to determine whether MPs were party to the fraud, what the extent of the fraud was and whether MPs received undue benefits from travel agents. Smuts Ngonyama, spokesman for the ruling African National Congress (ANC), noted that the party will initiate ‘relevant organisational disciplinary processes’ against its MPs and the opposition has called for convicted MPs to ‘do the honourable thing and resign’.[22] In June 2005, the ANC announced that five of the convicted MPs had resigned, while three more who had plea-bargained are no longer in parliament.

Another 21 current or former MPs are expected to stand trial in July 2005. The fallout from Travelgate has been varied. On the one hand, it showed that the anti-corruption bodies and judiciary have a fair degree of independence and are able to carry out their functions without hindrance, even when high-ranking members of the ANC were involved. On the other, there have since been moves to ‘muzzle’ the  Scorpions by incorporating the unit into the regular police force. A judicial commission of inquiry has been convened to determine the Scorpions’ future. That decision could signal the strength of the government’s commitment to fighting corruption at the highest levels.

Deputy president removed for alleged bribery

The US $5 billion arms purchase of 2000 came under intense scrutiny in 2003 when former NPA head Bulelani Ngcuka announced that, although the Scorpions had found prima facie evidence of corruption against Deputy President Jacob Zuma, the state would not prosecute because the case was ‘not winnable’.[23] Some interpreted the trial since October 2004 of Zuma’s financial adviser, Schabir Shaik, as a trial of Zuma by

proxy. When Justice Squires found there was a ‘generally corrupt relationship’ between Shaik and Zuma, President Thabo Mbeki removed Zuma from his post in June 2005.

The NPA announced plans to indict Zuma, whose first court appearance was scheduled for 29 June. Zuma maintains he is innocent, retains the deputy presidency of the ANC and enjoys wide grassroots support among trade unionists and youth, who claim that he was framed. The judge found that Shaik had solicited a bribe on Zuma’s behalf from French defence company Thomson-CSF (now renamed Thales) to protect it from the investigation into the arms deal.[24] The trial also investigated questionable loans totaling more than R1 million (US $146,000) from Shaik to Zuma.[25] The consequences for the former deputy president and the country’s oversight

institutions are far-reaching. Zuma has refused to comment on whether he will enter the race to succeed President Mbeki, but his supporters maintain that the Scorpions’ investigation and Shaik’s trial were designed to discredit Zuma and stall his presidential ambitions. The trial highlighted weaknesses or abuse in oversight mechanisms in parliament, the director of public prosecutions, the public protector and the auditor general. The Joint Investigation Team (JIT), which first looked into the arms deal in 2001, found that although there was some corruption, it did not significantly influence the contracts.[26] Since the JIT included investigators from all the above oversight bodies, the court verdict calls into question the rigour of their enquiries. There have been allegations of extensive executive interference in the auditorgeneral’s report.

The opposition Democratic Alliance (DA) has called for the former defence secretary,

Pierre Steyn, to testify before the Parliamentary Standing Committee on Accounts

(SCOPA). Steyn had resigned from his post, questioning the legality of the arms deal and arguing that the procurement process was irregular[27]. The fact that the JIT deliberately bypassed SCOPA prevented it from exercising its oversight role. Some commentators feel that this whole episode has weakened SCOPA, transforming it from a rigorous and nonpartisan regulator into an arena for political manipulation. DA MP Eddie Trent stated: ‘The challenge now is for parliament to ensure both the executive and the Auditor- General are made to account for their conduct in the arms deal.’[28] The Shaik trial highlighted Zuma’s alleged failure to declare his loans from Shaik to parliament’s Public Accounts Committee.[29] The Shaik trial also shows up the responsibility of multinational corporations for the ‘supply side’ of international bribery. The OECD’s 1999 Anti-Bribery Convention could mean increased scrutiny for Thales and other companies implicated in the arms deal.

Whistleblower law found wanting

In March 2005, the deputy director-general in the justice department, Michael Tshishonga, brought a R2 million (US $292,000) defamation lawsuit against former justice minister Penuell Maduna, alleging that Maduna had called him a ‘dunderhead’ and ‘a relic from the Bantustans’ in a televised statement in October 2004. Tshishonga has recently been reinstated as managing director of the Master of the High Court after Maduna suspended him on grounds of contravening the Public Service Code of Conduct.[30] The office of the Master of the High Court is responsible for the appointment of liquidators of insolvent estates. Tshishonga went public in October 2003 with allegations of corruption and nepotism involving Maduna, insolvency practitioner Enver  Motala, and a senior official in the Master’s office.[31] Tshishonga accused Maduna of maintaining a corrupt relationship with Motala that had earned the latter fees of R50 million (US $7.8 million) over a period of two years from appointments he received from Leon Lategan of the Master of the High Court’s office. Tshishonga had initially reported his concerns about Motala to the then director general of justice, Vusi Pikoli. When nothing happened, he blew the whistle. Tshishonga was then hauled before an internal disciplinary hearing and Maduna suspended him.[32] The internal hearing stemmed from the Public Service Code of Conduct, which states ‘that an employee must use appropriate  channels to air his or her grievances or to direct representations’. The hearing concluded in July 2004 that Tshishonga’s statements were protected under the Protected Disclosures Act (PDA) of 2000, the legislation that protects whistleblowers.

However, the justice department refused to reinstate Tshishonga on the grounds

that it ‘is still studying the findings of the disciplinary hearing and will decide on the

course of action to take once this process is complete’. He took the department to Labour Court, which ordered his reinstatement as of February 2005.[33] Detectives arrested Motala on 2 July 2004 on charges of fraud and corruption, together with eight other people. Lategan has been redeployed to ‘training and evaluation’ pending the outcome of the investigation. South Africans are now waiting to see if Maduna will be prosecuted or will be allowed to walk away. Will Pikoli, recently appointed national director of public prosecutions, be called upon to explain his failure to take action after Tshishonga, then his deputy, informed him of the irregularities? What message is being sent to potential whistleblowers? Though well intended, the PDA appears to have failed whistleblowers in several instances, not only because it sets out exactly to whom disclosures are to be made, but also how the informant wishes to claim its protection. The act specifies that a whistleblower must make what is referred to as a ‘protected disclosure’ to a specified group of persons if he or she wishes to avoid suffering ‘an occupational detriment’. The manner in which the disclosure is made is also regulated. Government employees, of whom Tshishonga was one, are free to register grievances as long as a prescribed procedure is followed. It was his apparent failure to follow procedures that resulted in disciplinary action being taken against him. The disciplinary offence – and the legal confusion – derives from the public service regulations, and what they proscribe in terms of communicating, especially outside the

Further reading

John Daniel, Roger Southall and Jessica Lutchman (eds), State of the Nation: South Africa 2004–2005

(Cape Town: HSRC Press, 2004)

Hennie van Vuuren, ‘National Integrity Systems: South Africa’ (Johannesburg: Transparency

South Africa, 2005)

TI South Africa: www.tisa.org.za

Notes

Uganda

Legal and institutional changes

  • The government issued a White Paper in October 2004 recommending that the Inspector General of Government (IGG) be given more latitude to arrest and prosecute persons involved in corruption or abuse of public office. This would amend sections of the Leadership Code Act of 2002 to bring it in line with the 1995 Constitution, which grants the IGG prosecutorial powers. A previous constitutional ruling in May 2004 trimmed the IGG’s powers. To strengthen the institution, the White Paper proposed the creation of an anti-corruption tribunal to try cases. The agency was re-energised after the appointment in January 2005 of a new IGG, Justice Faith Mwondha, and her deputy, Raphael Obudra Baku. They instructed all MPs and political leaders to declare their wealth before the end of March 2005 and warned that those who did not comply would face legal action (see below).
  • In July 2004, the Directorate of Ethics and Integrity (DEI) launched a four-year strategy to combat corruption and rebuild integrity in public office. The programme, due to run from 2004 to 2007, aims to improve the enforcement and coordination of existing law and to ensure that the public is actively involved in the fight against corruption. The DEI has drafted whistleblower protection legislation that will be submitted to parliament after the presidential and parliamentary elections in March 2006. The DEI is also reviewing the Prevention of Corruption Act 1970 with a view to presenting a new version to parliament.

Institutional failure looms

Despite an extensive legal framework and ample opportunity for participation by media and civil society, the lack of political will to curb corruption has led Uganda to the brink of institutional failure. Corruption by politicians and officials is one of the biggest challenges facing the country.

One case involved Major Roland Kakooza Mutale, a senior adviser to President Yoweri Museveni who made a major contribution to his re-election in 2001. A May 2003 report by the Inspector General of Government recommended that Mutale be sacked for refusing to declare his wealth under the 2002 Leadership Code Act. He was relieved of his post as adviser soon afterwards.  This was the start of a widening rift between the IGG and the government. Senior officials were already disgruntled to

find their wealth and possessions published in the media in 2002. Mutale took the matter to court and got President Museveni to swear an affidavit in his support, effectively condoning his refusal to comply with the law.[34] By March 2004, a constitutional court ruling in Mutale’s favour had contrived to render entire sections of the Leadership Code Act null and void. This duel between the IGG and the government is a clear demonstration of a flagging institutional system in Uganda. It also exposed a weakened judiciary that is unable to temper the powerful executive A second incident occurred in May 2004 when the solicitor general refused to surrender files on the James Garuga Musinguzi case when asked by the IGG. The GG had expressed alarm at the amount of compensation awarded by the government to Musinguzi, a city tycoon and rancher. Musinguzi was due to receive UShs13 billion (US $7.4 million) as compensation for the confiscation and redistribution of his ranches in Rakai. The case was handled out of court through an ‘amicable arrangement’ between the solicitor general’s office and Musinguzi.[35] When the solicitor general refused to hand over the file, the ombudsman ordered his

arrest. Mutale promptly mobilised a platoon of soldiers to protect him.[36] This interference in the execution of the IGG’s duties was a serious breach of the 1995 constitution which states that the IGG ‘shall be independent in the performance of its functions and shall not be subject to the direction or control of any person or authority and shall only be responsible to parliament’.[37] The fact that Mutale could carry out such an operation without legal or political backlash indicates how cosmetic the government’s commitment is to implementing the rule of law. It also raises questions about the IGG’s survival. Another negative milestone was passed in August 2004 when the High Court nullified a report into allegations of corruption at the Uganda Revenue Authority.[38]  A petition was issued by two members of the commission of inquiry after a disagreement with the chairperson over sections in the report. Instead of allowing further inquiries to be made regarding the contested passages, the court decided to expunge the document altogether. The decision reflected a failure of the court’s moral responsibility to bring acts of corruption to justice; it also meant that no further legal action could be taken against

those implicated. Following cases like these it is no surprise that, according to various auditor general reports from 2001 to 2003, more than UShs2 billion (US $1.1 million) is lost to corruption every year. A further setback nearly occurred in September 2004 when the cabinet proposed  to the Constitutional Review Commission that the offices of the Ombudsman and the Human Rights Commission be merged, a move that would have stripped the latter of its powers of prosecution. The proposal was dropped after protests from public and civil society organisations questioning the government’s commitment to fighting corruption.[39] Uganda’s institutions are facing challenges of a systemic nature, making them subject  to the whims of politics. The constitution of 1995 is a case in point: while clearly providing for presidential term limits and the question of succession, parliamentarians voted to scrap term limits in July 2005, paving the way for President Museveni to seek re-election in March 2006. The decision to amend the constitution sets a bad precedent that a hallowed document can be altered to suit the political climate.

Corruption ‘decentralised’ along with government functions

Political corruption at local government level has increased since 1996 when the new government ushered in a process of decentralisation of governance to local councils under the 1997 Local Government Act. Uganda’s local governments have responsibility for revenue collection, planning, resource allocation and service delivery, including primary education, primary health care, water and sanitation, rural roads and agriculture. Such weighty responsibilities combined with weak legislation, lack of oversight, poor remuneration, costly campaign bids and an electorate that expects favours from politicians, rather than transparent government, provide ample opportunities for corruption.  In some cases, local politicians have virtually taken over the award of tenders, especially for the construction of schools, dams and health units, usurping the mandate of district tender boards. In a tender for electrical installations for the Kasaali maternity ward in Rakai district in 2003–04, the only pre-qualified firm,  Kamungolo General Services, was not awarded the contract, which went instead to a firm that had not even put in a bid.

 In Kabira sub-county in 2004, the construction of teachers’ residences for Bukaala Primary School was awarded before a call for tenders was issued, making it effectively futile for other contractors to bid.

8Decentralisation was aimed at offering citizens increased participation at the local

level. But a detailed study of corruption in local government found that people’s

confidence has been eroded, and the quality of public infrastructure and services is

deteriorating. The main channels of political corruption in Uganda’s local government bodies are:

influence peddling; diversion of resources; giving contracts and jobs to supporters and

family members; presenting bogus allowance claims; colluding with civil servants to

embezzle resources; bribery; presenting false documents in order to qualify for elected or competitive positions; using public vehicles for personal work; and political interference in decision-making. The position deemed most corrupt by the

general public is that of district chairman, which wields so much power that it has

virtually usurped local boards, commissions and civil servants, including tender boards and public accounts committees, in deciding resource allocations. Residents

of Baitambogwe and Buwaya in Mayuge reported that many politicians and council

or board members have new properties and expensive lifestyles, yet they have no

other clear sources of income to back up such wealth. Politicians feel pressure to

amass wealth before leaving office so that re-election bids can be financed, and so they can survive if not re-elected. The health and education sectors are worst hit by local-level corruption. The Muggi Health Centre II in Buwaya subcounty,

Mayuge district is one example. There, the local MP halted construction[40]

Further reading

Directorate of Ethics and Integrity, National Strategy Document to Combat Corruption and Rebuild

Ethics and Integrity in Public Office, 2004–2007, Kampala, 6 April 2005

Human Rights and Democratisation Programme of DANIDA, ‘Anti-Corruption Manual for Civil

Society in Uganda’ (Kampala: DANIDA, unpublished)

Transparency International Uganda (TIU), The Impact of Political Corruption on Resource Allocation

and Service Delivery in Local Governments in Uganda (Kampala: TIU, 2005)

TI Uganda: www.transparencyuganda.org

What Government has done so far in Kenya[41]

Despite the high incidence of corruption as highlighted above Government has

undertaken several efforts to fight corruption and promote issues of ethics and integrity. Some of these are as highlighted below.

Political accountability; The government has made significant strides in creation of a political and economic environment that is condusive to fighting corruption and building Integrity in public office. In this regard, so far, three ministers have resigned and taken political responsibility for causing grave losses and/or mismanagement of public offices.

Constitution reform: It has been clearly articulated in the constitution that, “all

public offices shall be held in trust for the people’, that ‘all persons placed in positions

of leadership and responsibility shall, in their work be answerable to the people’ and

that ‘all lawful measures shall be taken to expose, combat and eradicate corruption

and abuse or misuse of power by those handling political and other public offices”. In

this regard the supreme law clearly states the position of the country with regard

corruption.

Establishment of specific institutions: The government has specifically established

institutions to deal with corruption. These include the Directorate of Ethics and

Integrity preceded by the Anticorruption Unit that was formed in 1996, and the

Inspectorate of Government.

Decentralisation policy: In 1993, Government introduced the decentralisation policy

to further its commitment to devolve and transfer power, responsibilities and

resources to local governments and to bring services closer to the people. It is

believed in the long run that with this policy in place, it will be easier for civil society

and the population at large to monitor and check public officials who are misusing

public resources.

Liberalisation and privatisation: The process of divesting public enterprises and

parastatals previously owned and run by government, as a measure to reduce

monopoly which provides a fertile ground for carrying out corrupt acts, has been

undertaken

Civil service reform: A process of reviewing and re-organised public service, with

the intention of reducing the size of civil service to one which is small, better paid,

more efficient and less corrupt, is ongoing. In this regard there has been improved

remuneration of judicial officers, political leaders and top civil servants as one of the

means of plugging the ‘need’ for corruption attributed to poor remuneration.

Performance of Anti-Corruption Agencies

Department of Public Prosecution – Attorney General’s Office

Core functions of State Law Office

The strategic objectives of the State Law Office as stated in the Strategic Plan are to:-

  • Improve the quality of legal services to government ministries and/or departments and the general public
  • Enhance work ethics, integrity and professionalism so as to eliminate corruption
  • Enhance constitutional development
  • Deliberately and positively respond to the HIV/AIDS scourge
  • Develop and implement a comprehensive monitoring and evaluation system
  • Establish adequate linkages and collaboration amongst safety, law and order sector agencies/ministries, departments and other institutions
  • Strengthen change management
  • Develop appropriate structures and optimal staffing levels
  • Ensure that laws are responsive to the country’s socio-economic development needs.

Focus for action:

The State Law Office aims to concentrate its efforts and resources on activities

aimed at:

  • Improving the quality and delivery of legal services to government ministries and the general public by improving the professional capacity of the State Law Office both in qualitative and quantitative terms.
  • Decentralizing most of the legal services provided by the State Law Office to the provinces and districts so as to improve accessibility of legal services closer by the poor and to reduce delays in the administration of justice.
  • Automating and modernizing the operations of the State Law Office for effective and efficient delivery of services through computerization, improving library services, and adequate provision of office space, facilities and equipment.
  • Ensuring speedy drafting, publishing or republishing of the relevant bills in consultation with the relevant line ministries,
  • Improving linkages and developing better collaboration between the State Law Office and its key stakeholders and all governance, justice, law and order sector institutions to achieve an effective, efficient and robust legal and judicial system that responds to the changing needs of Kenyans.

 

Strengths Weaknesses

1. Qualified and professional  staff

2. Increased commitment from staff

3. An established organizational structure

4. A fairly well established network of offices at the provincial and district  Levels

5. A moderately established ICT system that is expanding

6. A fairly established library

7. Existing registries supporting filing of cases and their retrieval

Strategic Plan for State Law Office

Strategy 2.4: Enforce compliance with the Public Officer Ethics Act.

Corruption is still a concern in the SLO despite the efforts made so far. If the policy of zero tolerance on corruption was to be achieved, the SLO must lead from the front. It should be free of corruption to demonstrate the seriousness of the legal sector to   provide good governance. The Solicitor- General will make sure that all officers comply with the Public Officer Ethics Act.

Capacity to implement and enforce the Public Officer Ethics Act will be improved at the SLO. Subsidiary legislation to support the Act will be finalized.[42]

Prosecution[43]

STATISTICAL SUMMARY OF CRIMINAL CASES FINALISED IN COURT FROM MAY 2003 TO DATE ( NAIROBI ONLY)

NO OF CONVICTIONS                                                   14

DISCHARGE UNDER S 87 (a) OF THE CPC                25

DISCHARGE UNDER S 89 (5) OF THE CPC                 9

ACQUITTALS                                                                  12

APPEALS                                                                           1

TOTAL                                                                             61

Statistical Summarry of files forwarded to the attorney general

SUMMARY OF CASES OF FILES FORWARDED TO THE ATTORNEY GENERAL FROM MAY 2003 TO DATE 

Total No. of files forwarded to the Attorney General        157

No. of files recommended for prosecution                         120

No. of files recommended for administrative or other action 5

No. of files recommended for closure                                    32

No. of files where recommendation to prosecute accepted  108

No. of files indicated as accepted because prosecution is already underway and they are before court, but A-G yet to respond to KACC’s report                   5

No. of files where recommendation to prosecute accepted but files referred to CID for re-evaluation of evidence                                                             9

No. of files where recommendation for administrative or other action accepted2No. of files where recommendation for closure accepted                        25

No. of files where recommendation to prosecute not accepted 3

No. of files where recommendation for administrative or other action not accepted  0

No. of files where closure not accepted                           3

No. of files awaiting Attorney General’s action              6

The KACC in addition to the above had 18 civil cases filed against or by them.

 

Judiciary

Chief Justice Evan Gicheru rules on corruption[44]

Chief Justice Evan Gicheru has defended his move to gazette new rules that will frustrate efforts by those implicated in graft to avoid arrest by resorting to constitutional references.

Gicheru said the Legal Gazette Notice No. 133 of 2001, also known as the Chunga Rules, were being used by suspects to stall corruption and other criminal cases.

He likened the move to German physicist, Albert Einstein, saying “We cannot solve our problems by using the same kind of thinking we used when we created the problems.”

“The new rules under Legal Gazette Notice No. 6 of 2006 are designed to protect rights and freedoms of individuals through a simple and time regulated procedure,” he said.

Speaking in Nakuru on Wednesday at a dinner organised by the Rift Valley Law Society of Kenya in his honour, Gicheru. said those criticising the notice should read the rules carefully.

“One should read the rules and understand them and not just issue statements for political advancement,” he said.

He said the ‘Chunga Rules’ contributed to delay because proceedings before other courts were automatically stayed pending the conclusion of the reference to the High Court.

Gicheru said the new rules were formulated to allow the protection of the rights and freedom of individuals through constitutional references heard and determined within the shortest time possible.

He said stay of proceedings would only be made where necessary depending on the nature of the proceedings and the issues raised in the reference.

He said there would be cases that do not call for stay of proceedings, especially those that were of overriding public interest

Judicial graft investigated [45]
4th April 2005 President Kibaki’s promise of a renewed crackdown on corruption began to take shape yesterday with the appointment of a standing committee to investigate allegations of graft within the Judiciary.

The committee, set up by Chief Justice Evan Gicheru, will collect information on all judicial staff, including judges and magistrates, and court processes and investigate cases of alleged corruption and unethical behaviour.

Such committees would be formed every two years and were aimed at establishing integrity as a “permanent feature of the Judiciary and to guarantee its impartiality and independence,” the CJ said.

The first committee will also recommend action to beat graft and suggest ways to punish minor cases that fell short of warranting a judge’s dismissal.

As well as considering a disciplinary system for the Judiciary, the committee will also propose ways of vetting judges and magistrates and running regular checks on their fitness to hold office.

It would have to be “an orderly and efficient method consistent with rules of natural justice,” said the CJ. The new team, called the Integrity and Anti-Corruption Committee, is headed by Appeal Court judge Mr Justice Onyango-Otieno, and will present its findings to the CJ on September 30.

Its other members are Mr Justice Paul Kihara (vice-chairman), senior principal magistrate Stephen Nyang’au Riechi, principal magistrate Stella Munai Muketi and senior economist Samuel Kipkoech Kiptorus.

Representatives of the Attorney General’s office, the Ministry of Justice and Constitutional Affairs and the Law Society of Kenya were free to attend the committee session’s as ex-officio members, the CJ said.

The committee follows one set up in March 2003 and headed by the then Mr Justice Aaron Ringera. His report ended with 23 judges being suspended and 82 magistrates sacked.

Announcing the new committee, the CJ also launched a three-year plan which if implemented would see the creation of a supreme court and the position of a deputy chief justice.

It would cost Sh11 billion to implement and help reform the Judiciary which Chief Justice Gicheru added needed to be separate from other wings of the government and draw money direct from the Consolidated Fund.

The plan, part of the administration’s Economic Recovery Strategy states that creating a deputy chief justice and a supreme court would help to streamline reporting relationships in the Judiciary and improve work flow and performance.

There should also be a deputy chief registrar to help administer court registries. Also proposed is a deputy chief court administrator and more divisions to streamline and strengthen finance, auditing, procurement and information communication technology departments.

Other new divisions should include planning and research and property and security, the report recommends. If created, the supreme court, which is also suggested in the draft Constitution will fall under the deputy chief justice.

Heading the Judiciary would be the Chief Justice, followed in the pecking order by the Judicial Service Commission, the deputy CJ, the Supreme Court, Court of Appeal, High Court, Chief Registrar, National Council of Law Reforms and the deputy chief registrar.

Judges, magistrates and other judicial staff who spoke before the plan’s launch called for an alternative way to resolve disputes in the mainstream judicial system.

Mr N. Nyamache from Almaco management consultants, who were hired to liaise with the Judiciary in developing the strategic plan, named the achievement of a predictable and impartial justice system, speeding up prosecutions and clearing the backlog of cases as the major challenges facing the department.

Others were limited access to justice, inadequate facilities, cumbersome laws and procedures, a lack of independence and poor public image.

Mr Justice R S Omollo said it was first time since Independence that the Judiciary had been asked to set out how their affairs should be conducted.

Of the magistrates’ recent strike, Chief Justice Gicheru said the Government could not afford the 1,000 percent pay rises they had demanded and they said that instead they would be given 200 percent in two months.

The fate of those suspended following the strike will be known in a month’s time when the Judicial Service Commission will meet to consider the matter.

Meanwhile, those suspended will continue receiving half salaries, the CJ said. The Ringera committee which preceded the new one announced yesterday, compiled a report containing allegations of corruption.

Analysis of performance[46]

 Background

An overview of the reform initiatives in the Judiciary in the last three years and

their success or failure can only be possible if one analyses the role played by

the head of the Judiciary during that period. Without any doubt, the character

and commitment of the head of this institution in post independence Kenya

has played a significant role in determining the character of the Judiciary and

the success of any reform initiatives. For, notwithstanding the lack of political

support for radical reform, Chief Justices like the late C.B. Madan and even,

surprisingly, the late Justice Zaccheus Richard Chesoni, made laudable attempts

to enhance the status of the Judiciary and implement reforms.66

The period in issue began with the unexpected death of Chief Justice Chesoni

in September 1999. His death ignited intense debate on the choice of his

successor. Media commentaries indicated the achievements and qualifications

of several judges who at the time were widely thought to be most qualified to

succeed him.

Bernard Chunga, then the Director of Public Prosecutions (DPP), did not

feature anywhere in the debate. Therefore, his appointment was received with

utter consternation: it was simply unbelievable that the then President Moi

could have skipped the entire Bench and appointed someone not only bereft of

judicial experience but also with a questionable human rights record to hold

such an important judicial office!

It was probably a mark of the contempt with which the Government held

public opinion that Bernard Chunga not only became judge but the leader of

this otherwise esteemed institution. Anyway, those were the days when merit

counted for nothing in appointments to public service and his appointment

should not really have come as a surprise. Chunga’s tenure, though, was mired

66 Justice Madan was posthumously honoured by the Law Society of Kenya (LSK) for his

commitment to the dignity and independence of the Judiciary. As for Justice Chesoni, the

Kwach Committee was appointed in his tenure (to establish the challenges and propose

reforms to the Judiciary on which see below. He also appointed a powerful implementation

committee, which included, among others, the current Chief Justice. This committee was never

heard of in the Chunga years.

in controversy from the word go and it appeared as if he was not going to last

long anyway. Yet he lasted the same way he had as the tenacious State

prosecutor who hauled scores of political dissidents in Kenyan courts in the

1980s, many of them on trumped up charges.

This Chapter, however, is not intended to focus on the merits and demerits of

Chunga’s appointment but rather to examine the reforms (or lack thereof) that

took place during his tenure and to highlight the opportunities that the

Judiciary as an institution both missed and gained during that season. I will

begin by looking at the institution that Chief Justice Chunga inherited from his

predecessor and how he dealt with the fundamental problems facing it. Then I

will trace his strategy and attitude to reform and how these two factors

impacted on the Judiciary’s struggle to regain public confidence.

 

A litany of woes under Chief Justice Chunga

When Chunga became Chief Justice, the entire structure of the State was

threatened with endemic corruption. Several independent audits revealed a

bleak and almost imponderable scenario. Transparency International (TI)

ranked Kenya amongst the world’s most corrupt countries and many

international bodies shunned Kenya due to state supported corruption. The

Judiciary was not spared and in its report on Kenya The Risk Advisory Group

Limited stated that

“there was unanimity … that the Judiciary lacks integrity and is corrupt.

This sentiment was expressed across the political divide, the business

community and other interest groups. The Chief Justice did not share

this view.”

Public confidence in the administration of justice, in the courts and the judges

and magistrates was at an all time low at the time of Chunga’s appointment.

Judicial performance had deteriorated, a fact very evident in the declining

quality of decisions, casual disregard for the doctrine of stare decisis as well as a

mounting case backlog. These were some of the problems that Chunga

inherited from his predecessor. Controversial though his appointment had

been, there was still hope that the zeal and energy he had displayed early in his

career would be deployed in tackling these problems. But as will be seen

shortly, he emerged to be a most conservative and anti-reform-minded Chief

Justice.

The Kwach Committee

At the time Chunga became Chief Justice, the Committee on the

Administration of Justice (popularly known as the Kwach Committee) was

already in place having been appointed by Justice Chesoni in January 1998.[47] Its

stated mandate was to investigate “judicial rectitude.” The Committee’s report

was delivered a few months into Chunga’s tenure. Being a peer review of the

Kenyan Judiciary by its own members, the Kwach report was greeted with a lot

of optimism and at the time was arguably the most opportune and most

legitimate vehicle for judicial reforms. This report in many ways can be used as

a yardstick to measure Chunga’s attitude and performance in regard to judicial

reform.

One of the recommendations made by the Committee was that a Code of

Ethics be introduced in the Judiciary. Such a code, the Committee argued,

would be used to spell out prohibited conduct and set out penalties for

transgressions. The Implementation Committee drafted the Code in 1999 and

one of the most poignant provisions in it was a requirement that judicial

officers re-commit themselves to the oath of allegiance and a judicial oath.

The draft Code was circulated to all judicial officers in 1999.[48] However, it

appears as though the Code never effectively came into force. Had it been

enforced, a remarkable stride would have been made in the direction of

arresting impropriety in the Judiciary. This perhaps was the first lost

opportunity of the Chunga era to take on corruption and judicial impropriety

head-on.

Other attempts to subject judicial officers to some form of control and in

particular to the provisions of the Advocates Act (Cap. 16) and Advocates

Practice Rules floundered thanks to stiff resistance from within the Judiciary.

The case of Law Society of Kenya v. William Kipsiro Tuiyot where the Mombasa

Law Society challenged the appointment of the late Justice Tuiyot on the basis,

inter alia, that he had been involved in professional misconduct, eventually died

off as a result of opposition from the bench with the support of the Executive.

Gained and missed opportunities in implementing the Kwach Report

Administrative and institutional reforms aimed at minimizing the impact of

corruption and improving efficiency as recommended by the Kwach Report

were adopted with varying degrees of success during the Chunga era. These

include a transfer policy geared to reducing undue familiarity; hearing matters in

open court; vetting of judicial appointments; and declaration of assets by all

judicial officers and paralegal staff.

Gained opportunities

These administrative strategies saw a number of measures to counter

corruption taken, including:

(a) reorganization of the courts including the High Court to create the Commercial Court, Family Court, Criminal Court and Civil Court;

(b)        creation of more magistrates’ courts in areas outside Nairobi and enhancement of pecuniary jurisdiction.

The reorganization of the High Court into several divisions and creation of

more magistrates’ courts outside Nairobi was no doubt a gained opportunity in

the Chunga era. There is no doubt that the more specialized court divisions and

in particular the commercial division significantly improved the administration

and delivery of justice. It is important to note, however, that the success of the

commercial division had more to do with the vigour with which the

“stakeholders,” and especially the banking sector, lobbied for improvements in

the division than the Judiciary’s own commitment to reform. This would partly

explain why other divisions like the family and criminal divisions have not had

the same comparative success.

Furthermore, even the specialized divisions have continued to be plagued by

the same structural inadequacies that affect the Judiciary as a whole and it is no

wonder that when the purge on corrupt and inefficient officers was underway,

even the relatively efficient commercial division was not spared.

The increase in pecuniary jurisdiction for magistrates has resulted in the

reduction of case backlog in the High Court. Furthermore, it reduced the

necessity of aggrieved parties to travel and engage counsel for trial in the few

stations that hold a High Court. This did bring justice closer to the people and

is laudable. Unfortunately, there has been no corresponding investment in the

infrastructure that would allow the enhanced jurisdiction to be more effectively

exercised by the magistrates. One would have wanted to see greater efforts in

capacity building by way of training, provision of research material and

personnel if this enhancement was to have a real impact in the delivery of justice.

Another critical proposal by the committee was enhanced remuneration and

terms of service for judicial officers. The Kwach Committee adopted

recommendations of earlier committees such as the Waruhiu Commission,

Kotut Commission and Masime Commission, which had all recommended

better terms as a way of fighting corruption in the Judiciary. Although the

proposal was implemented under Chunga’s tenure,[49] its impact on corruption is

less than clear. There is no direct empirical evidence to show that better terms

of service resulted in a decline in the level of corruption in the Judiciary. It may

have resulted in better job satisfaction but probably not reduction of corruption

and corrupt practices by judicial officers.

 

Lost opportunities

The Kwach Committee recommended hearing of all but exceptional matters in

open court in order to limit access to chambers. However, the rules were not

amended to reflect this proposal. In addition, Chunga chose not to implement

the Code of Ethics. If implemented and properly administered, the Code of

Ethics would no doubt have yielded positive impact not just in the fight against

corruption but also in restoring honour and credibility to the Judiciary.

The failure to bring into law the elaborate vetting procedures[50] proposed by the

committee for the appointment of judges and magistrates was perhaps the

biggest opportunity lost during these years. Patronage continued to remain the

main guiding factor in the appointment of judges and in this way the Judiciary

was flooded with corrupt, lazy and incompetent individuals whose allegiance lay

not with the rule of law but with the appointing authority. This is perhaps the

biggest problem that has bedeviled the Judiciary as an institution.

Regarding the proposal on declaration of assets, it is doubtful as to whether it

was implemented. Yet this was one very critical proposal by the Kwach

Committee, which would have gone a long way in identifying the corrupt

elements in the Bench, had it been implemented upon its release in 1999.

 Other lost opportunities

In failing to effect many of the positive proposals by the Kwach Committee,

Chunga as Chief Justice showed his lack of forward thinking. Many of the

changes went to the core of the institution and called for a radical attitude to

reform. As already mentioned, such an attitude was lacking in Chunga who

often displayed an ultra-conservative stance to reform in the Judiciary.

One such instance was the infamous outburst by the former Chief Justice in

derision of the recommendations made by a visiting team of judges from

Commonwealth countries.[51] The Advisory Panel of Eminent Commonwealth

Judicial Experts[52] had been set up by the Constitution of Kenya Review

Commission in conjunction with the Kenyan Section of the International

Commission of Jurists to advise on constitutional reforms regarding the

Judiciary.

As testimony to Chunga’s hostility to the Panel, a team delegated by the Chief

Justice to meet the Panel declined to discuss the Panel’s specific terms of

reference. These included examining the financial and administrative autonomy

of the Judiciary and constitutional jurisdiction and structure of the courts.[53]

The Panel of eminent jurists noted that there was a “crisis of confidence” in the

Judiciary and that there were widespread allegations of corruption in the

institution and general lack of public confidence in it. Some of the overall

recommendations that Chunga later displayed open hostility to included:

  • an effective interim mechanism to investigate allegations of judicial misconduct pending completion of the constitutional review process;
  • measures aimed at making the Judiciary more accountable and open to public scrutiny be put in place;

that the process of judicial appointments and removal be made more transparent;

  • that a committee be set up to receive complaints about the conduct of any judge in Kenya. The committee would comprise the A-G, LSK, civil society and academia.

It is instructive how the recommendations by the Panel reveal the failure to

address the very same issues dealt with by the Kwach Committee. The failure

by the Judiciary to effect many of the proposals of the latter committee and the

Chief Justice’s personal hostility to the Panel of eminent jurists was another lost

opportunity.

 Constitutional reform process

While the Judiciary by virtue of its privileged position in the socio-political

arena should have played a leading role in the constitutional review process, in

reality the Judiciary ended up largely alienated from and hostile to the process.

Although the Judiciary managed to collectively forge a set of recommendations

that it presented to the Review Commission, certain events were to set the

Judiciary on a collision course with the general review process.

The most notable of these events was the proposal contained in the Draft Bill

for the new Constitution demanding that judges resign en masse and apply afresh

for their jobs. The immediate reaction by the Judiciary came by way of a civil

suit filed by two judges seeking to bar deliberations on the contentious clause.[54]

The judges’ case had been preceded by similar one by two advocates.[55] The

cases were unprecedented in their distasteful and contemptuous disregard for

the rule of law and constitutionalism. And as the Kenyan Section of the

International Commission of Jurists[56] noted in its report the Judiciary’s position

“overshadowed any positive contribution of the Judiciary to the constitutional

review.”

6 Conclusion

In the final analysis even though several administrative changes whose effect

was to enhance the efficiency of the Judiciary were carried out in these years,

the requisite radical administrative and institutional measures necessary to

restore the Judiciary to its proper place as a guardian of justice and the rule of

law were never taken. At the end of Justice Chunga’s tenure, the Judiciary was

more discredited than it had been when he took over.

The root cause of this failure was Chunga’s own intransigent and hawkish

attitude to reform coupled with a political environment that was hostile to any

significant change in the Judiciary. The Chief Justice’s ultra-conservative

approach to reform meant that he could only implement those measures that

were not politically sensitive while ignoring the real changes that needed to be

made. His over-reliance on administrative choices denied the Judiciary the

chance to carry out vital though painful institutional reforms necessary to

reverse the decline in the credibility and effectiveness of the Judiciary as an

institution. The decision by some members of the Judiciary to file cases against

the Review Commission and the National Constitutional Conference during

Chunga’s tenure is clear evidence of lack of leadership on his part to guide this

beleaguered institution through the broader legal reform process.

From the foregoing discussion the last three years can only be described

accurately in one simple way; they were lost years for judicial reform.

 

The Ringera Report on judicial corruption in Kenya: Which way forward for judicial reform?  [57] 

 Introduction

The last several months have been a season of passion for the legal and judicial

sector of Kenyan society. A lot of things have occurred very fast. But there has

been very little time for reflection. At times, it has appeared as if some of the

actors or commentators have been caught up and intoxicated in the exigencies

of the moment. Perhaps there is need for the key stakeholders and actors in the

sector to take a step back and reflect on what has been achieved, the pros and

cons of the steps that have been taken, and to design the way forward for the

sector with sobriety and circumspection.

The dice was cast at the beginning of the year by the apocalyptic warning by the

new Minister for Justice, Hon. Kiraitu Murungi, that he would ensure “radical

surgery” of the Kenyan Judiciary. Soon thereafter, there commenced a highprofile

investigation, interrogation, arraignment and prosecution of a High

Court Judge, Hon. Samuel Oguk, on charges of corruption. Following hot on

the heels of this was a very public campaign, initially by sections of Civil

Society, for the resignation of the then Chief Justice, Hon. Bernard Chunga.

The ostensible reason was his controversial track record as an overzealous

prosecutor of democracy crusaders in the 1980s and early 1990s.

However, it was not lost on many that he also had an abominable record as

head of the Judiciary. And this, perhaps, should have been the primary reason

for agitating for his departure. Ultimately, the new President, H. E. Mwai

Kibaki, established a tribunal to inquire into Justice Chunga’s suitability as

Judge and Chief Justice. Penultimately both Justice Chunga and Justice Oguk

resigned from the Judiciary. Curiously, the corruption charges against Justice

Oguk were simultaneously abruptly terminated. Rumours abounded that both

former judges had negotiated “sweetheart” retirement deals with the

Government and carried fat wallets into the sunset of their careers.

With the gazettement of the tribunal to “try” Chunga, President Kibaki had, as

provided by the current Constitution suspended the former and appointed

Appeal Court Judge, Justice Evans Gicheru as Acting Chief Justice. This

kicked up a legal storm on at least two fronts: that, in the run-up to the historic

December 2002 General Elections, Justice Gicheru had not distinguished

The author is the Chief Executive Officer of the East Africa Law Society (EALS). The views

expressed herein are the writer’s and not those of the East Africa Law Society.

himself as a reformist Judge and, more importantly, that his appointment was

unconstitutional since the same Constitution explicitly stipulates that an Acting

Chief Justice shall be a puisne (High Court) Judge and not an appellate Court

Judge. Section 61 (4) of the Constitution provides that:

“If the office of Chief Justice is vacant, or if the Chief Justice is for any

reason unable to discharge the functions of his office, the President

may appoint a puisne Judge to act as Chief Justice, and a puisne Judge so

appointed shall exercise the functions of that office until a person is

appointed to and assumes the functions of that office, or until the Chief

Justice resumes those functions, as the case may be, or until his

appointment is sooner revoked by the President.”

This potentially damaging controversy was, perhaps fortuitously, short-circuited

with the resignation of Chunga and the subsequent “confirmation” of Justice

Gicheru as Chief Justice.

Thereafter, in March 2003, and with uncharacteristic stealth, the President

appointed eight new Judges to the High Court[58] and elevated two long-serving

High Court Judges to the Court of Appeal.[59] Civil Society, especially the Law

Society of Kenya (LSK), complained that they had not been consulted, much

less informed. There were muted murmurs that a number of the new

appointments were not suitable. Almost as though in response to this, the

President, through a luncheon speech to LSK, read on his behalf by his

Minister for Justice and Constitutional Affairs, Hon. Murungi launched an

assault on the private Kenyan Bar and LSK itself for what they alleged was

rampant unethical conduct and defalcation (or theft) of clients’ funds by

practising lawyers. This assault was sustained by, among others, Hon. Murungi

himself, and his Assistant Minister, Hon. Robinson Njeru Githae. LSK,

sections of Civil Society, individual lawyers and some other commentators

responded with blazing guns, alleging that this was a back-handed attempt to

muzzle outspokenness and criticism of governmental follies and foibles.

The dust had not settled on this recurrent controversy when Chief Justice

Gicheru, received, and immediately commenced speech and action on the

“Ringera Report”[60] which is the central focus of this Chapter. And in the

backdrop of all these has been the waxing and waning of virulent controversy

Kenyan odyssey in the earnest search of a new constitutional dispensation;

The Chief Justice’s rhetoric and actions in the aftermath of the Ringera Report

included thinly veiled threats to those fingered in the Report (whom, he said,

knew themselves) to resign or face the public humiliation of constitutional

tribunals to inquire into their (allegedly) corrupt conduct. Since the (till-then)

un-named Judges did not resign, the President “named” the Judges, by

appointing two tribunals to investigate their conduct. By a special issue of the

Kenya Gazette, President Mwai Kibaki appointed the following tribunals: 82

“(a) A tribunal to investigate the conduct of Judges of

Appeal

The Tribunal

(1)   Justice (Retired) Akilano Molade Akiwumi – Chair of the

Tribunal

(2)   Justice (Retired) Abdul Majid Cockar

(3)   Justice Benjamin Patrick Kubo

(4)   Senior Counsel Phillip Nzamba Kitonga

(5)   William Shirley Deverell Counsel to Assist the Tribunal: Mbuthi Gathenji Secretary to the Tribunal: Margaret Nzioka

Court of Appeal Judges to be investigated:

(1)        Richard Otieno Kwach

(2)        Amritlal B. Shah

(3)        A. A. Lakha

(4)        Moijo M. ole Keiuua

(5)        Effie Owuor

(6)        Phillip N. Waki

82 See Kenya Gazette Vol. CV – No. 101 of 15th October 2003 (Gazette Notices numbers 7280,

7281, 7282 and 7283).

The other tribunal was:

“(b) A Tribunal to investigate the conduct of Puisne (High Court) Judges

The Tribunal

(1)   Lee G. Muthoga – Chair of the Tribunal

(2)   Justice John Mwera

(3)   Justice Leonard Njagi

(4)   Daniel Musinga

(5)   Isaac Lenaola Counsel to assist the Tribunal: Philip Kipchirchir Murgor Secretary to the Tribunal: Muchai Lumatete

High Court Judges to be investigated:

(1)        Daniel K. S. Aganyanya

(2)        Tom Mbaluto

(3)        A. Mbogholi Msagha

(4)        Gideon Mbito

(5)        I.C.C. Wambilyiangah

(6)        Roselyn Nambuye

(7)        Richard C. N. Kuloba

(8)        D. M. Rimita

(9)        Sarah C. Ondeyo

(10)      Andrew I. Hayanga

(11)      A. G. A. Etyang’

(12)      J. V. Odero Juma

(13)      Johnstone K. Mitey

(14)      J. Kasanga Mulwa

(15)      G. E. Omondi Tunya

(16)      Robert M. Mutitu

(17)      Lawrence Peter Ouna.”

As provided by the Constitution, the said notices also suspended the abovenamed

23 Judges. There followed widespread public and international approval

with the above bold steps taken to tackle judicial corruption head-on. These

have, however, been accompanied by some reservations, on both substantive

and procedural grounds.

Meanwhile, an immediate sideshow opened. A palpable frenzy began about the

immediate backlog of cases considered bound to arise from the dockets of the

23 “named” Judges. It was reported that the Chairperson, or the Council, of

LSK was to be consulted or had angled itself to be consulted concerning

possible replacement appointments. Consequently there were rumours of an

“LSK List” of replacement Judges. Later there were rumours of other lists by

some other key legal and human rights organizations as well. There were some

suggestions that there need not be such a great rush to appoint new Judges;

that the superior courts would be going on recess in the near future anyway;

and that appointment of Commissioners of Assize could plug any gaps. These

debates were also rendered moot by further presidential action. 15 days after

the Judges’ suspensions, the President swore in 11 new acting Judges as

follows:

To the Court of Appeal:

1)  Justice John Walter Onyango Otieno83

To the High Court:

(1)   Kaburu Bauni

(2)   George A. Dulu

(3)   Isaac Lenaola

(4)   Patrick J. Kamau

(5)   Mary Muhanji Kasango

(6)   Paul Kariuki Kihara

(7)   David Maraga

(8)   Daniel Kiio Musinga

(9)   Jackton Boma Ojwang’

(10) Roselyne V. Wendoh

As before, there was support as well as some reservations about this move.

The reservations centred on discomfort with the apparent haste in acting as

well as the opaque nominations process, reminiscent of the KANU84 era. In

fact, the appointments ignored even the Ringera Report’s own

recommendations on how to recruit replacement Judges!85 Also, at least two

respected lawyers, Richard Omwela and Wilson Kalya, publicly turned down

the appointments, citing extremely short notice, lack of prior consultation, and

lack of information or even a sense of clarity as to the terms and conditions of

work. Thus controversy exacerbated rather than abated.

83 He was previously a High Court Judge and, incidentally, was a member of the “Ringera

Committee.”

84 The Kenya African National Union, the political party that was in power from independence

from Great Britain in 1963 until it was defeated in December 2002 by the National Rainbow

Coalition (NARC).

85 See the discussion of the aftermath of the Ringera Report, below.

Meanwhile, 20 days after the gazettement of the Tribunal (i.e. on 4th November

2003), LSK delivered the Report of its own Judicial Corruption Investigation

Committee to the Chief Justice. Reportedly, the Report fingered 8 more Judges

who had not featured on the Ringera Report; these remain un-named in the

public domain. LSK itself came under increasing public pressure to act on its

own errant members rather than focussing solely on errant Judges. Eventually,

at the end of November, LSK announced some changes designed to improve

its disciplinary regime and to promote ethical practice of law generally.

Meanwhile, unsubstantiated rumours abounded that there may be further

appointments to the Bench. This has only heightened the lobbying and

agitation. The melodrama continues to unfold.

Thus it has indeed been a season of passion: of heightened emotions, anxieties and

expectations, anger and hunger, appointments and disappointments. For a

while, it appeared that the majority of the players, even the leaders, of the legal

sector institutions were caught up in a whirlwind, a period of heady

intoxication. It would be ideal to slow things down, to take a step back from

the ups and downs of the entire season and to calmly reflect on what happened,

and what is the best way forward.

2 The Ringera Report: an overview

The Report of the Integrity and Anti-Corruption Committee of the Judiciary,

whose title is An Anatomy of Corruption in the Kenyan Judiciary, is a thorough and

comprehensive 76-page document. It has a two-part Schedule, but which is

confidential at the moment. Part A of the confidential Schedule details the

allegations against the 5 Court of Appeal and 18 High Court Judges, as well as

similar allegations against 82 Magistrates and 43 Paralegal Officers “implicated

in judicial corruption, misbehaviour or want of ethics.” Part B lists judicial

officers implicated in misconduct in their extra-judicial capacities.

The main report, which is in eight chapters, elaborates on the following: The

Establishment and Terms of Reference of the Committee; Definition of

Corruption; The Causes of Corruption in the Kenyan Judiciary; The Magnitude

and Level of Corruption in the Judiciary; The Impact of Corruption on the

Performance of the Judiciary; Identification of Corrupt Members of the

Judiciary; Strategies for the Detection and Prevention of Corruption; and Other

(Legislative and Administrative Reform) Matters. Chapters 7 and 8 of the

Report give very comprehensive recommendations on how to put a halt to

impunity in judicial corruption and several progressive proposals on the way

forward for the Kenyan Judiciary.

Most of the recommendations are not new; they have been repeated and

recycled in various prior reports, from within the Judiciary (such as the

“Kwach Report”86) as well as from without (such as the “Commonwealth

Judges Report.”87) The single most glaring and curious omission of the report

is that it makes absolutely no mention of constitutional reform or fundamental

overhaul of the institution of the Judiciary. It seems content to tweak at the

edges and propose minor surgery of the current statutory and administrative

dispensation concerning the Judiciary.

With regard to the Schedules, several members of the public, and especially of

the legal profession, have lamented that some of the judges, both of the Court

of Appeal and the High Court, that are perceived to be among the most

corrupt are not on the list! This has caused quite some disenchantment with the

Report and obviously affects its credibility in the eyes of the public. Of course

it can easily be argued that the Ringera Committee could only act on specific

allegations made to it, by specific individual complainants against specific

individual judicial officers; as such it would not proceed against a judicial officer

merely on the strength of rumors in the air. This is easy to understand: the

public has become jaundiced by numerous Task Forces and Commissions of

Inquiry which engage them and produce wonderful Reports that are rarely

implemented. Thus, perhaps, many potential complainants could have kept

away, not believing that the Judiciary would have implemented this particular

Report so expeditiously. Some may have been afraid of coming forward, fearing

repercussions from the judicial officers. Perhaps, now armed with renewed

faith in the Judiciary, coupled with confidence that their cases will not be

prejudiced, many more will be willing to come forward. The above

notwithstanding, the upshot of all this is that there may be judicial officers with

a legacy of corruption who are still serving on the Bench. And this would mean

that the work of “cleaning the Bench” and ridding it of corrupt elements has

just begun, and is nowhere near complete.

The continuum of legal and judicial reform

There may be a mistaken notion that the Ringera Report, a monumental work

in its own right, is either the commencement or the epoch of judicial reform.

In fact, there are already observations that, with the purge on the “old” judges

and their replacement with “new” judges, the problems besetting the Judiciary

are over and that all will now be well. This is clearly not the case. The Judiciary,

86 The formal and full citation of this Report is Republic of Kenya (1998) The Report of the

Committee on the Administration of Justice. Presented to the Hon Justice Z.R. Chesoni, CJ;

Chairman, Hon Justice Richard Otieno Kwach, Government Printer, Nairobi. It was released

and published in 1998.

87 The full and formal title of this Report is The Kenya Judiciary in the new Constitution: Report of the

Advisory Panel of Eminent Commonwealth Judicial Experts. It was released and published in May

2002.

despite being one of the three all-important arms in the traditional trichotomy

of government, is, in reality, only one of the key players in what is now known

as the legal and judicial sector. Other players include the public and private Bar,

and NGOs. The public Bar consists of the offices of the Attorney General,

Director of Public Prosecutions, Ministry of Justice, and other Government

lawyers. The private Bar comprises lawyers in private legal practice, under the

vanguard of LSK while Civil Society is composed of the human rights NGOs,

which have metamorphosed into a distinct and important category of their

own. In a broader (and more realistic) perspective, the legal and judicial sector

also includes the Police, Prisons, the Probation Service, Community Service

Orders Agencies, the Children’s Department and perhaps even Immigration

and Revenue authorities. All these agencies and players work intimately with

each other and are inextricably inter-twined. Each has a profound effect on the

others. Frequently, they all meet in the courtroom.

In terms of recent exertions towards legal and judicial sector reform, one can

commence with the enactment, in 1982, of the Law Reform Commission Act,88

establishing the Kenya Law Reform Commission (KLRC). KLRC was to be a

permanently vigilant monitoring agency that would interact with all sectors of

society, identify areas that need legislative or other reform, carry out in-depth

research and consultations, and recommend appropriate legislative or other

action. Due to myriad reasons, this did not work out quite as planned. 10 years

later, in 1992, Attorney General S. Amos Wako established several Task Forces

with specific mandates to look into certain areas that were considered in need

of urgent legislative reform and report back to him. In the fullness of time, all

of the Task Forces reported back and some of their recommendations and

proposals were implemented. In 2000, the key principals of the legal and

judicial sector, led by the then Chief Justice (the late) Zaccheus Chesoni and

Attorney General Wako, established The Legal Sector Reform Co-coordinating

Committee (LSRCC).

This was the first attempt at sector-wide consultation, dialogue and consensus

towards erecting a reform master plan. It incorporated, as equally influential

stakeholders, the Judiciary, the public Bar, the private Bar, civil society and

other key Government agencies. It had an overall Steering or Co-ordinating

Committee, a Technical Sub-Committee and a fully-fledged Secretariat. Various

intensive brainstorming workshops and consultations carried out therein

resulted in a comprehensive 2000 Report, even though the fortunes (and the

influence) of the LSRCC continued to wax and wane. The process was

rejuvenated in 2002, now taking the form of an Expanded Legal Sector Reform

Co-ordinating Committee (E-LSRCC), which after its own intensive workshops

and other consultations produced a revised 2002 Report. In the new year

(2003) and under the new political dispensation, this has gradually

metamorphosed into the Governance, Justice, Law and Order Sector (GJLOS),

88 Cap. 3.

incorporating the Police, Prisons, the Probation Service, the Children’s Service,

the Immigration Department and the anti-corruption agencies, among others.

The Judiciary is squarely in the middle, perhaps at the apex, of all these

endeavours, since all these agencies and individuals coalesce before the courts.

Thus, in an ideal scenario, judicial reform should be synchronized with, and

feed into, reform of other players in the sector. If any, or any few, of the

stakeholders or agencies moves much faster or slower, or in utter disregard of

the others, the attempts at reform will not “gel;” they will be futile. This is the

whole ethos behind the GJLOS and its predecessors. Thus, in order to multiply

gains, judicial reform must be more comprehensive and must be in tandem

with reform of other sector players.

Even in terms of purely judicial sector reform, the Ringera Report should be

seen in its true light: as an important intervention, but only one in a continuing

series of crucial reform milestones. In recent times, one can trace judicial

reform to the establishment in 1998 by the late Chief Justice Chesoni, of the

Committee on the Administration of Justice (the Kwach Committee). The

Committee carried out a similar in-depth study and a countrywide public

consultative exercise. It released a damning Report; complete with a

confidential listing of some judicial officers against whom credible allegations

of corruption or other impropriety had been made. Subsequently, the Chief

Justice established an Implementation Committee, headed by the current Chief

Justice Gicheru, to follow up to fruition the Kwach recommendations and

proposals. The jury is still out on what was achieved.

The next important milestone was the publication of the Report of the Advisory

Panel of Eminent Commonwealth Judicial Experts in May 2002. This Panel was

assembled and facilitated by the Kenyan Section of the International

Commission of Jurists, for and at the invitation of the Constitution of Kenya

Review Commission (CKRC), and with the full approval of the then Chief

Justice Chunga. It passed a severe indictment of the state of the Judiciary and

proposed a raft of recommendations and proposals for constitutional,

legislative as well as administrative reforms. They recommended a “short sharp

shock” intervention to restore a modicum of sanity in the Judiciary. Their

Report kicked up a storm. Chief Justice Chunga tried to rubbish it,89 and most

of the rest of the country, especially the legal fraternity, rose up in

overwhelming support of it. The Report’s recommendations, together with

others from civil society and the general public, formed the major basis for the

provisions regarding the Judiciary in the draft Constitution, itself released in the

eye of yet another public storm in October 2002.

89 See also Kamotho Waiganjo’s contribution (Chapter 4) in this volume (discussing Chief

Justice Chunga’s reaction to the Commonwealth Judicial Experts’ Report).

Upon assuming office, Chief Justice Gicheru unveiled a number of innovative

and bold administrative reforms. He appointed principal judges to head the

Court of Appeal (Justice Richard Otieno Kwach, JA) and the High Court

(Justice Daniel S. K. Aganyanya, J), respectively. He also established the

Integrity and Anti-corruption Committee on 19th March 2003. Some analysts

say that its genesis was actually as a Sub-committee of the Judicial Reform

Committee. The Judiciary has neither confirmed nor denied this.

Be that as it may, the Committee’s mandate was confined to matters regarding

the fight against judicial corruption. It was not meant to and did not address

the overall institutional structure of the Judiciary. Nor did it address related

issues such as efficiency, incorporation of case management or information

technologies or linkages with the other arms of government or institutions on

the legal landscape, including the private Bar and Civil Society. And as has

been noted before, the Committee did not concern itself with the larger

constitutional reform debate or even how the Judiciary could look like in a new

constitutional dispensation, which may be operational by the end of 2004.

Thus the wheel of judicial reform continues; as well, the entire vehicle of legal

and judicial reform continues. And the Ringera Report has immensely enriched

both processes.

The “naming” of judges by the Ringera Report

Conscientious members of the legal fraternity have commended the Ringera

Report, appreciating and applauding that the Committee managed to achieve so

much in a relatively short time, with limited resources, and in an environment

that cannot be said to have been conducive. This is as it should be. Something

had to be done, quickly. A “short, sharp shock,” as recommended by the

“Commonwealth Judges.” It has also been argued that a lot of the sitting judges

had proven to be conservative and anti-reform and that, therefore, the first

plank of any meaningful reform was to focus on weeding out those that no

longer deserved to be on the Bench and commencing afresh with new judges

who would favour reform. This, though Machiavellian, seems to find favour

with many observers and commentators.

Serious issues have been raised though whether due process and the

constitutionally guaranteed presumption of innocence was observed, or

whether these principles were sacrificed at the altar of expediency and urgency.

Many have argued that if the Ringera Committee was going to open its doors to

receive complaints, the least it could have done, to observe the minimum

dictates of natural justice, was to put the allegations to the respective judicial

officers, before forming an opinion on them. Evidently, this was not done. It

is reported that the Committee feels that due process principles have not been

violated since the “named” judges will have ample opportunity to defend

themselves before the tribunals. Is this good enough? Critics argue that even

the Kenya Police do not arrest a suspect immediately a complaint is lodged

against him or her. They first investigate, then interrogate and record

statements from both the complainant and the suspect, then evaluate these

before they decide to arrest and arraign. In this case, apparently no statements

were sought and no interactions were initiated with the “named” judges prior

to the Report or indeed at any time before the publication of the Kenya

Gazette Notice that suspended them. It does appear as if, by the very public

“naming and shaming” the judges have already been tried, convicted and

sentenced in the court of public opinion.

Principle 17 of the United Nations Basic Principles on the Independence of the

Judiciary stipulates that:

“A charge or complaint made against a judge in his/her judicial and

professional capacity shall be processed expeditiously and fairly under

an appropriate procedure. The judge shall have the right to a fair

hearing. The examination of the matter at the initial stage shall be kept

confidential, unless otherwise requested by the judge.”

The principle clearly requires speedy processes and early involvement of the

judicial officer in question.

Questions have also been raised as to the suitability of an exclusively in-house

team of judicial officers to carry out this investigation in the first place. The

unanswered question is “who will investigate the investigators?” The Ringera

Committee’s members were:

Hon. (Mr.) Justice Aaron Gitonga Ringera – Chair

Hon. (Mr.) Justice John Walter Onyango Otieno

Hon. (Mrs.) Wanjiru Karanja

Hon. (Mrs.) Margaret W. Muigai – Secretary

These four judicial officers actually enjoy a very high confidence rating,

especially within the practising Bar. Nevertheless, it has been argued, they were

not in a position to hear complaints about their own conduct as judicial officers

in a fair manner. Either they could have downplayed complaints against

themselves; or they could have swept them under the carpet. Or alternatively,

potential complainants would not be courageous enough to lodge complaints

against them. Justice is about perceptions. In terms of justice being manifestly

seen to be done, they cannot avoid the lingering perception that they were not

under any or any sufficient scrutiny in order to ensure that they were different

from the colleagues they eventually “named.” If the perception is that you

would have been a judge in your cause had anyone had the courage to complain

to you about you; or even that no reasonable person would have had the

courage (or foolhardiness) to complain to you about you, then this vitiates the

integrity of the report, or, at the very least, punctures its credibility. Many

commentators felt that the investigating committee’s membership should have

been broadened, perhaps to incorporate representation from the Attorney

General, the Kenya Anti-Corruption Commission, the Law Society of Kenya

among others.

Indeed, the “Commonwealth Judges” had recommended as follows:

“27. The Panel recommends that as an interim measure there be a

Committee to receive complaints about the conduct of any Judge in

Kenya in order to assist the Chief Justice in the discharge of his

constitutional obligation to decide whether a complaint ought to be

investigated by a tribunal appointed by the President under section

62(5).”

The Judges added:

“28. We recommend that the Committee be set up by the Attorney

General and include the following:

􀂃 A member appointed by the Attorney General to represent the

Republic of Kenya

􀂃 A member nominated by the Law Society of Kenya

􀂃 A member nominated by the International Commission of

Jurists (Kenya Section)

􀂃 A member nominated by the Federation of Women Lawyers of

Kenya

􀂃 A member nominated by the faculties of law of Kenyan

Universities.”

How would the Committee proceed?

“The Committee shall be responsible for selecting a Chairperson from

among its members. It is crucial that the members of this Committee be

persons of unquestionable integrity, competence and resolve. The

Committee must be provided with adequate resources to fulfill its role,

including office space, staff and equipment.”90

The proposal that the Committee be set up by the Attorney General was

perhaps due to the very obvious intransigence and resistance to change

manifested by the former Chief Justice, Chunga. Thankfully, his successor,

90 Pages 40, 41 and 51 of the Panel Report.

Chief Justice Gicheru has manifested the exact opposite. Nevertheless, the

further proposal of the Panel of Commonwealth Judges was that there should

be representation of other non-judiciary stakeholders. Perhaps this should have

been explored.

With regard to procuring, even preliminarily, the views of the judicial officer

accused of misconduct, the Panel stated:

“We recommend that the mandate for the Committee be as follows:

􀂃 To receive complaints about the conduct of any Judge in Kenya

from any source.

􀂃 To assess the merits of such complaints and to refer to the

Chief Justice any complaints that he should consider for

investigation by a tribunal pursuant to section 62(5) of the

Constitution of Kenya.”[61]

The Panel goes on to recommend that

“(…) After preliminary examination, where it appears that a complaint

may be well founded, the judge in question should be provided with a

copy and invited to provide a reply in writing. Where the Judge’s

response does not resolve the matter, the Committee will gather further

information by interviewing the complainant and any others who may

have relevant information (…).”

And that

Upon completion of its fact finding, where the complaint appears to be

serious enough to warrant referral to the Chief Justice, fairness must be

extended to the Judge involved. Complete disclosure should be

provided to the Judge who should be given the opportunity to respond

in writing and his or her response must be included in the report of the

Committee, if it decides to refer the matter to the Chief Justice. Where

a complaint is referred to the Chief Justice, the Committee may make

its report public. Experience in other jurisdictions has demonstrated

that where a Judge has engaged in serious misconduct, and is presented

with the evidence that his or her misconduct has been exposed, the

Judge will resign rather than face the embarrassment of a formal inquiry

and the inevitable result of removal.” [62]

In summary, the Panel recommended the following standards:

“The process followed by the Committee must reflect:

􀂃 Sensitivity to the complainant.

􀂃 Fairness to the Judge and respect for judicial independence.

􀂃 Credibility in the eyes of the public.”

The prevailing perception is that the second standard: fairness to the Judge and

the preservation of judicial independence was not wholly adhered to. It has

been criticized on the basis that you do not preserve and protect the

Constitution by violating the Constitution; that you should not violate

constitutionalism at the altar of convenience or expedience. And nonchalantly

violating the rights of the body of individuals to whom the citizenry should run

for protection of human rights sets a very poor platform for protection and

promotion of human rights.

 

5 The aftermath of the Ringera Report

The Ringera Report was received with widespread applause and appreciation;

and rightly so. It is the first report that not only identified corrupt Judicial

Officers, but also named them publicly and specifically called for their

punishment. And, whereas this was not widely disseminated to or discussed

with the wider public, the Report also had a comprehensive set of

recommendations for the appropriate reform of the Judiciary. We strongly feel

that the myriad progressive recommendations of the Ringera Committee

should be widely debated and implemented. This should incorporate previous

recommendations by the Advisory Panel of Eminent Commonwealth Judicial

Experts, (of May 2002) and those of the (Kwach) Committee on the

Administration of Justice (1998) as well as those of the Governance, Justice,

Law and Order Sector Reform (GJLOS) Programme and its predecessors.

With regard to the treatment of the “named” Judges, we regret that this

deteriorated rather than improved after their gazettement and suspension. The

“named” Judges and magistrates are reported to have formally received, in

written form, the allegations against the almost one month after the Gazette

Notice that named and suspended them, and established the Tribunals to “try”

them. This was grossly unfair and unjust, probably even illegal. As at the

submission of this essay[63]  the Tribunals that will try those that opt to defend

themselves against the allegations have neither published Rules of Procedures

nor sitting dates. This is clearly inordinate delay. The current Kenyan

Constitution, the African Charter on Human and Peoples’ Rights, the Universal

Declaration on Human Rights and the International Covenant on Civil and

Political Rights are very clear and insistent on the need for a speedy trial. The

maxim “Justice delayed is Justice denied” should have applied as much (if not

more!) for Judicial Officers on the dock as it should apply to the litigants who

routinely come before them.

The confidential Schedule to the Ringera Report, which contained the names

and particulars of the accused Judges, remained under restricted circulation

even after the gazettement of the tribunals and attendant “naming” of the

Judges. Meanwhile, a number of key public figures, including, reportedly, the

Chief Justice Gicheru and the Assistant Minister for Justice and Constitutional

Affairs, Hon. Githae issued public calls for the named Judges to resign to

obviate the need for the tribunals. These increasingly incessant calls began

acquiring the look and feel of blackmail, or intimidation, or at least a campaign

for forced resignations. Coming especially from the custodians of

constitutionalism and human rights, this is not ideal. Some have argued that in

the interests of saving time and costs, the named Judges should just “go home”

so that we move on, as a country, and as a Judiciary. We respectfully disagree.

We submit that constitutionalism must be observed, regardless of

inconvenience or cost. If, in the case of Judges, we begin taking short cuts to

guarantees and processes stipulated by not only our Constitution, but also the

International Bill of Rights, then will we stop the legacy of violations? Can we

guarantee that those vested with state power will not continue to disregard

these constitutional guarantees when they find it exigent or inconvenient?

At the end of October 2003, the Registrar of the High Court, William Ouko,

issued circulars to the effect that the named Judges should vacate their official

residences (presumably to make way for the incoming Judges) and further that

their salaries and other allowances and benefits would be stopped forthwith.

This immediately aroused indignant protest and condemnation from the

affected Judges, sections of the Legal and Human Rights fraternity and the

public at large. The Government was accused of trashing the constitutional

guarantees of presumption of innocence and due process. Their actions

suggested that they had “tried, convicted and sentenced” the named judges.

Meanwhile, the shock naming of the 23 Judges, 82 Magistrates and 43 Paralegal

Officers had a profound effect on the administration of justice. The courts,

and the legal system in general, were not prepared for it and had not made

contingent arrangements. On the first few days after the gazettement, several

court matters went unheard as the remaining judicial officers struggled to keep

the judicial machine going, at least calling out and adjourning cases that were

scheduled to be handled by their colleagues. Obviously, the Judiciary had not

prepared itself for this, and may not have clearly thought through the impact of

the gazettement and subsequent suspensions. This is not surprising and neither

can blame be heaped upon its principals. This was an unprecedented

development in the whole of East and Central Africa, indeed in the whole

continent. Thus, while eventually it was announced that all the Judges must

proceed immediately on suspension, it was also decided that the “named”

magistrates (and, presumably, Paralegal Officers) would continue with their

duties until they received further communication.

Partly as a result of this shock and attendant mayhem, there developed the

frenzy, recounted above, for urgent recruitment of replacement Judges. Some

lawyers actually pointed out that there need not be any rush to recruit new

Judges; that Commissioners of Assize would suffice; and that before long, the

High Court and Court of Appeal would proceed on vacation. These arguments

did not sway the determination to appoint. Hence the appointment of acting

Judges presumably as provided for under section 61(5) of the current

Constitution.

It was widely reported in the mass media that Chief Justice Gicheru, the

Minister for Justice and Constitutional Affairs, Kiraitu Murungi, and his

Assistant Minister, Robinson Githae essentially made the judicial appointments.

It was also reported that the Chair of LSK, Ahmednasir Abdullahi was

consulted; in fact it was alleged that he had a list, which was rationalized and

harmonized with that of the aforementioned three public officials. Some

sources also had it that the names of all the considered candidates were

forwarded to the Advocates Complaints Commission, for an indication

whether or not they had any pending complaints of a disciplinary nature. None

of these reports were denied by any of the parties mentioned above. If, thus,

we were to accept them at face value, we applaud that, for the first time in

recent history, there were attempts both to consult the private Bar, through the

Chair of LSK as well as to consider potential appointees’ ethical track record,

through the Advocates’ Complaints Commission. This is a definite and

commendable break from past practice.

It was, however, grossly imperfect. For one, the current Constitution does not

provide any role for politicians in the appointment of Judges, either of the High

Court or Court of Appeal. Section 61(2) provides that:

“The puisne Judges shall be appointed by the President acting in

accordance with the advice of the Judicial Service Commission.”

Section 61(5), which provides for appointment of acting Judges, provides:

“If the office of the puisne Judge is vacant or if a puisne Judge is

appointed to act as Chief Justice or is for any reason unable to

discharge the functions of his office or if the Chief Justice advises the

President that the state of business in the High Court so requires, the

President, acting in accordance with the advice of the Judicial Service

Commission, may appoint a person who is qualified to be appointed a

Judge of the High Court to act as a puisne Judge; and a person may act

as a puisne Judge notwithstanding that he has attained the age prescribed

for purposes of section 62(1).

Meanwhile, section 64(3), which provides generally for appointment, discipline,

tenure, etc for Judges of the Court of Appeal, provides that:

“The foregoing provisions of this part shall apply in respect of the

Judges of Appeal as they apply to puisne Judges.”

And meanwhile, section 68, which establishes the Judicial Service Commission

stipulates:

“(1) There shall be a Judicial Service Commission which shall consist

of:

(a) the Chief Justice as Chairman;

(b) the Attorney General;

(c) two persons who are for the time being designated by the

President from among the puisne Judges of the High Court and

the Judges of the Court of Appeal; and

(d) the Chairman of the Public Service Commission.”

It is clear that the intention, in the current Constitution, was to professionalize

and depoliticize judicial appointments, save, perhaps, that of the Chief Justice.

Whereas the current constitutional provisions, especially those relating to the

composition of the Judicial Service Commission have been criticized, they are

the provisions still in force now. Thus the Justice Minister and his Assistant

were unconstitutionally involved in the recruitment of the acting judges. And,

we opine, any attempt at varying the implementation of the existing

constitutional provisions is something upon which a broader consensus (than

just that of the Chief Justice and the Justice Minister) should be sought and

procured before acting. In a fair and just scenario, the ruling as well as the

opposition parties should have been allowed an input; if not all politicians were

to be involved. This could have been achieved even through the Parliamentary

Legal and Judicial Affairs Committee.[64]  Otherwise we run the risk of giving the

impression that the ruling party is packing the Bench with its supporters and

sympathizers, in a manner reminiscent of the former regime.

The second major sticking point was the lack of clarity of what criteria were

used to arrive at the nominees who were eventually sworn in by the President

as acting Judges.[65] Media reports only talked of lists: by the appointing

authorities, by LSK and, reportedly by other stakeholders. Sections of Civil

Society, especially ICJ-Kenya[66], called for principled appointments, if any. They

felt that it was better for the appointing authorities to publish clear criteria of

what they were looking for in possible appointees, and then open the field for

any person who qualified to apply. Otherwise, the appointments risked giving

the impression that there was favouritism or cronyism, reminiscent of the

former regime. The appointing authorities actually disregarded the

recommendations of the Ringera Report, which was the actus novus intervenus

(the causative factor) that led to the judicial “vacancies” in the first place! In its

recommendations regarding recruitment and promotion, the Ringera Report

proposed:

“7.4.2 We agree that recruitment and promotion ought to be transparent and

merit based. To achieve that, we recommend the following measures:

(i) Vacancies for Paralegals, Magistrates and Judges ought to be publicly

advertised and the advertisement should clearly indicate the

qualifications required for the job;

(ii) Shortlisted candidates should be vetted for personal integrity and

probity by appropriate means;

(iii) Serving Judicial Officers should not participate in the interviewing of

candidates in respect of whom they have a personal interest; (…).”[67]

This resonates with the proposal by the Advisory Panel of Eminent

Commonwealth Judicial Experts who proposed that appointment, discipline

and removal of Judicial Officers should be done by a restructured, revamped

and broadened Judicial Service Commission, whose composition would

include:

􀂃 A full-time Chairperson whose qualifications shall be comparable to that

of a Supreme Court Judge.

􀂃 One member appointed by the Chief Justice.

􀂃 Two lay members of the public appointed by the President in consultation

with the proposed Parliamentary judicial affairs committee.

􀂃 Two members nominated by the Law Society of Kenya.

􀂃 Two members elected by the faculties or schools of law of the universities

of Kenya.

􀂃 Three Judges elected by the Supreme Court, Court of Appeal and High

Court respectively.

􀂃 Two members elected from the subordinate courts.

􀂃 One member representing the Public Service Commission, nominated by

the Public Service Commission.

􀂃 The Attorney General as an ex-officio member98.

Meanwhile the draft bill of the Constitution of Kenya, as published by the

Constitution of Kenya Review Commission, with regard to the appointments

to the (proposed) Supreme Court, Court of Appeal and High Court, provides,

under section 194(4) that:

“The other judges of the superior courts of record and the Chief Kadhi

shall be appointed by the President acting in accordance with the advice

of the Judicial Service Commission and with the approval of the

National Council.”

There have been suggestions that the appointing authorities should apply the

spirit – if not the letter – of the draft Constitution, that is, to professionalize

judicial appointments, indicate clearly and in advance the criteria to be used to

determine suitability, level the playing field so that any qualified person has a

chance to apply, and broaden the number of institutions to be involved in the

recruitment as well as the level of consultations before recruitment.

THE ROLE OF THE JUDICIARY, KENYA ANTICORRUPTION COMMISSION (KACC) AND THE ATTORNEY GENERAL IN THE FIGHT AGAINST CORRUPTION: ANALYSIS OF AREAS OF DIVERGENCE AND DIVERGENCE WITH SUGGESTIONS FOR THE FUTURE.[68]

 

Introduction

Corruption is a complex malevolence with corrosive social, economic

and political costs. Countries throughout the world have realized that

corruption is the single greatest obstacle to economic and social

development. It damages the rule of law, hampers the performance

of public institutions, hinders the delivery of public services, promotes

market misallocation and inefficiency, undermines the optimal

allocation of resources and challenges the authority of legitimate

States[69]. The fight against corruption is therefore not simply a ‘moral’

or ‘cultural’ one; it is a practical crusade for national integrity and

development, and a struggle for human dignity and liberation. The

consequences of endemic corruption in Kenya over the last 2 (two)

decades led to severe levels of poverty, the practical collapse of public

institutions and the growth of an apathetic culture in which there

was little respect for law, order and justice[70].

The National Alliance of the Rainbow Coalition [NARC] was

catapulted to power on, among others, the anti-corruption platform.

This, by itself, is evidence that, in principle, Kenyans are agreed that

the fight against corruption should be carried with utter ruthlessness.

There may be differences of opinions regarding the methods that have

been, and that continue to be employed in the fight. Again, as

commonplace debate would indicate, in spite of the initiatives already

instituted both by the current and former regimes in Kenya, the battle

against corruption is far from won. Consensus, however, once again

surrounds the facts that for an effective fight against corruption, a

strong institutional framework is a conditio sine qua non.

This paper sets out to examine the role of three institutions in the

fight against corruption. The paper shall examine the following issues:

• The respective roles of the Judiciary, the Kenya Anti-

Corruption Commission and the office of the Attorney

General in the fight against corruption.

• The comprehensiveness of the Act establishing and governing

KACC in comparison with the legal regime addressing

corruption.

• The independence of the three institutions from political

interference in the fight against corruption (especially official

corruption).

• The relationship between the AG’s office and KACC –

strengths and weaknesses of having both institutions.

• A comparative study on the above institutions and

mechanisms used in another commonwealth country.

• The paper shall conclude with recommendations on ways of

making the institutions more independent and effective.

 

The role of the judiciary in the fight against corruption

Corruption encompasses a number of offences clearly defined by

statutes in Kenya. As a matter of constitutional promise, particularly

that part dealing with fundamental rights and freedoms, every person

charged with a criminal offence is entitled to a fair hearing before an

impartial tribunal established by law.[71] Ex facie, every person against

whom corruption allegations are leveled is entitled to the determination

of the question whether he has really been corrupt before courts of

law. It is these courts of law that constitute the judiciary.

Before the inception of the Anti-Corruption and Economic Crimes

Act[72] the judicial jurisdiction to deal with corruption questions lay

with ordinary magistrate courts. Currently, the criminal jurisdiction

to deal with corruption cases vests in the special anti-corruption courts

marshaled by anti-corruption magistrates. In addition to these offices

of magistracy created under the Anti-Corruption and Economic Crimes

Act, there too exists jurisdiction in the ordinary magistrate’s court to

deal with corruption cases by virtue of the existence of corruption

related offences under the Penal Code, Cap 63 of the Laws of Kenya.[73]

Statistically, the special Anti-Corruption courts have not convicted a

single corruption offender since their inception in 2003.

With the exception of the run away corruption that would involve

bribery of a police constable, the high ranking corruption that would

involve top echelons of parastatals and senior government officials

wielding massive powers has attracted two convictions since the

inception of the NARC regime. So far, one of the convictions has

been overturned by the High Court[74] and the other has suffered the

blow under the presidential constitutional prerogative of clemency[75].

With the high level of perception of official corruption by the general

public in Kenya, these statistics are discouraging. They portray efforts

against corruption as either half hearted, or just out rightly ineffective.

The civil jurisdiction to deal with corruption cases, concerned with

cases of recovery of corruptly acquired assets, vests in the High

Court.[76] Since the inception of the two crucial anti-corruption statutes

in Kenya, these are the Anti-Corruption and Economic Crimes Act

and the Public Officers ethics Act, there has been no single recovery

of corruptly acquired assets in Kenya. This sounds even more bizarre.

The rest regarding the judiciary shall be addressed later in this paper.

The above suffices to address the apparent performance of the

judiciary in the fight against corruption. It should be remembered

that the performance of the judiciary in the anti-corruption war

depends largely on the performance of other institutions and cannot

be judged in isolation.

The role of K.A.C.C. in the anti-corruption crusade

The roles of KACC are as set out in the Anti-Corruption and

Economic Crimes Act, namely:

1. To carry out investigations on any matter or conduct

constituting corruption or economic crime;

2. To investigate the conduct of any person that in its opinion is

conducive to corruption or economic crime.

3. To assist any law enforcement agency in Kenya in the

investigation of corruption or economic crimes.

4. To render advice and assistance to any person who may lodge a

request to it on ways in which the person may eliminate corrupt

practices.

5. To examine the practices and procedures of public bodies in

order to facilitate the discovery of corrupt practices and to secure

revision of methods of work or procedures that may be

conducive to corrupt practices.

6. To advise public bodies on ways and means of preventing

corruption.

7. To educate the public on the dangers of corruption and

economic crimes and to enlist and foster public support in

combating corruption and economic crimes.

8. To investigate the extent of liability for the loss of or damage

to any public property and institute civil proceedings against

any person for the recovery of such property or for

compensation.

A substantial part of the work of K.A.C.C and particularly the “sting”

of the work, that is, investigations are, understandably, shrouded in

mystery. There is no open “web page” that one can log on to get the

number of cases reported, the number so far dealt with and the possible

follow up efforts to realize the fruits. The average tax payer is left to

rely on the occasional press releases by the Commission and other

anti-corruption agencies.

As pointed up above, the Commission’s assets recovery efforts seem

to have stopped at the attempt at injuncting transactions in the Yaya

Centre, which efforts hit a cropper on a procedural technicality. There

are no other reported efforts geared towards asset recovery at the

Kenya Anti-Corruption Commission. It is public knowledge that the

Commission has not recovered any asset that might have been acquired

corruptly since its inception.

The role of the Attorney General in the fight against corruption

The office of the Attorney General is constitutional. The most

pronounced role of the office of the Attorney General in the anticorruption

war is the prosecutorial function. Under Section 26 of the

Constitution of the Republic of Kenya, the Attorney General is the

repository of all radical prosecutorial powers. It behoves the Attorney

General to prosecute all corruption and economic crimes under the

Anti-Corruption and Economic Crimes Act. As a matter of statutory

obligation, the Attorney General is required by the Act to prepare

and submit to the National Assembly annual reports on the number

of corruption and economic crimes prosecutions his office conducts

in every calendar year.

Although the Attorney General is yet to perform this reporting

function as envisaged under the statute since its inception in 2003,

the Attorney General’s office has already set up the Anti-Corruption,

Economic and Serious Frauds Section within the office of the D.P.P

to handle all cases arising from the Anti-Corruption and Economic

Crimes Act. This section operates within a more conducive working

atmosphere in “state-of-the-art” offices at the National Social Security

Fund House within Nairobi’s Community area.

The failure by the judiciary to register many convictions in corruption

related offences in Kenya sends a fairly negative message in terms of

the Attorney General’s performance of his prosecutorial function.

The Comprehensiveness of the Anti-Corruption and Economic

Crimes Act[77]

1. Defining the offence of “corruption” and “economic crime”

The offence of corruption is defined in Section 2 and Section 71 of

the Act. The most important thing to note is that all offences defined

as corruption in the now repealed Prevention of Corruption Act CAP

65 are part of the offences envisaged under the Act. Economic crime

is defined broadly to include acts that lead or cause loss or damage to

public property, public service, public benefit or public funds and

includes failure to pay taxes, excessive payment for goods and engaging

in a project without prior planning.

The challenge is always to ensure that the list is comprehensive enough

and that its interpretation is broad enough to cover new aspects of

corruption. This requires a continuous revision of the definition of

corruption under the Act. Two curious examples may be given. The

first case may be one where a company is awarded a contract to

construct some road and proceeds to do sub-standard work. It may

not be possible under Sections 44 and 45 of the Act to penalize such

a company because the offence created under the Section applies to

public officers making payment for such services and not the

companies doing them. The other example may be in cases where

public officials deny government from receiving the real value for its

money or impede the delivery of efficient service to members of the

public and give excuses such as “the file is missing”, “come next

week” or even in cases of blatant exercise of discretionary power

such as high handedness or the denial of a favourable motor vehicle

inspection report. These delaying tactics in many cases are a means

to extort bribes. In order to be effective, it might be necessary for the

Act to define conduct against fair administration and efficient service

delivery of public service as part of corrupt behaviour.

A broad definition of corruption has implications on the workload

of the Commission and there is need for the Commission to identify

its ability to effectively discharge its functions in the context and to

be prepared to create partnerships with other public authorities to

assist it in the discharge of its functions.

2. The operational powers and role of Kenya Anti-Corruption

Commission76

The Kenya Anti-Corruption Commission is established under PART

III of the Act with the following powers:

• The power to investigate matters relating to corruption and

economic crime;

• The power to advise public authorities on methodologies of

eliminating corruption including policy changes; and,

• Public education and mobilizing the public to support anticorruption

initiatives

To facilitate the work of the Commission, especially is ability to

investigate corruption; the Commission may cooperate with other

appropriate bodies. In addition[78], the Commission has power to require

the production of information relating to property, to search premises

with a warrant[79], arrest persons[80] and charge them with offences, and

to apply ex parte to Court to have travel documents of a suspected

person(s) surrendered[81], to commence recovery proceedings of

unexplained assets[82]; and where necessary, to apply ex parte for orders

to prohibit the disposal or other dealing of a suspects property. [83]

The success of the fight against corruption does not only lie in the

investigation of persons accused of corruption or economic crimes,

but involves the role of the Commission in evaluating and

recommending on legal, policy, institutional and procedural reforms

to prevent and eliminate corruption. For this matter, the Commission

must be prepared and be courageous enough to recommend policy

changes that will improve political accountability, public sector

management, civil society participation in public affairs, institutional

restraints of power and for a competitive private sector. 

An important aspect of the work of the Commission is civic

education. All the outstanding examples of anticorruption agencies

found in Singapore, Hong Kong, Botswana, South Africa and Australia

relate their success to the building of a public awareness,

understanding and support for the fight against corruption.[84] This

partnership will first help to deter corruption because of the publicity

and vigilance of the citizenry and second, will help the Commission

in detecting crime. Although the Commission may rely on

communications from the public, the National Assembly, the AG,

Ministers or other public authority to act, much of the success of

anticorruption will largely depend on the initiative of the Commission.

3. The statutory obligations of the commission[85]

The main statutory obligations of the Commission relate to its reports.

The Commission is required to make at least three types of reports as

follows:-

• An investigation report to the Attorney General setting out

the results of an investigation and the recommendation of

the Commission on whether the person or persons may be

prosecuted for economic crime;

• A quarterly report setting out the number of investigation

reports made to the Attorney-General and other statistical

information relating to such reports.

• An annual report setting out the financial statement of the

Commission, a description of the Commission activities,

information on results of investigations, summary and status

of civil proceedings instituted by the Commission, detail

relating to complaints made to the Commission. The Annual

Report is to be presented to the Minister and the Advisory

Board within four months after the end of the financial year

 (that’s by October of every year). The Minister is then to lay

the Report before the National Assembly. The Commission is

also to ensure that the Report is published in the Kenya Gazette.

Other statutory obligations of the Commission relate to the following:-

• The Commission is required to inform in writing, a

complainant whose complaint it has declined to investigate

or discontinued investigation and of the reasons thereof[86];

• The Commission is to gazette at least once a year, all the

persons who are convicted of corruption and who are

consequently disqualified from holding public office for a

period of ten years from the date of the conviction[87];

• The preparation of annual estimates;[88]

• The keeping of proper books and records of account of

income, expenditure, assets and liabilities.[89] The Commission

shall also prepare and cause its annual accounts to be prepared

and audited in accordance with the Exchequer and Audit Act.

4. The sentencing policy under the Act

The liability of persons convicted of corruption and economic crimes

is established under various sections of the Act and includes the

following:-

• A fine not exceeding one million Shillings or a jail term of ten

years or both[90]. The Act is not clear whether the penalties

prescribed here are applicable to offences under the repealed

Prevention of Corruption Act or indeed under any written law.

• An additional mandatory fine if the person received

quantifiable benefit or any other person suffered a quantifiable

loss. The amount of the fine shall be equal to two times the

amount of the loss or benefit or both.[91]

Liability to compensate any one including a public body, a

private body or person who suffers loss as a result of

corruption and economic crimes[92].

• A person who receives a benefit the receipt of which amounts

to an offence under the act is liable for improper benefits.

Such a person is liable to pay interest at the prescribed rate,

on the amount payable[93]; and to forfeit unexplained assets

or an amount equivalent to the value of the assets[94].

• Persons/officers charged with corruption are liable to

suspension from service with half pay during the

investigation and if convicted, are to be disqualified from

public service without salary for a period of ten years after

the conviction.[95] In addition persons guilty of corruption

offences are disqualified from election or appointment as

public officers for a period of ten years from the date of the

conviction. The fact that this section does not apply with respect

to an elected office if the Constitution sets out the qualifications

for the office means that it does not bar one from election as

President or as a Member of the National Assembly.

As a general statement, it seems the case that the sentencing policy

may not be appropriate to discipline the conduct of private business

which has a deliberate policy to corrupt public officials for certain

benefits. For example, if a telecommunications company bribes an

officer of the Communications Commission of Kenya in order to

secure a license to operate mobile telephones, it should be possible

to penalize such a company by barring it from conducting business

with the Government or denying it license to operate all together.

This is because the reality on the ground is that some private

companies especially multinationals are known very well as institutions

that give money to their principal officers to influence procurement

and tendering of contracts. It would be of no use in such a case to

penalize the officer of such a company and leaving the company to

go scot-free. In any event, if such a company has benefited from

corruptible acts of public officers or its managers, it ought to be

possible to recover such benefit from it.

Again, just as is the case in the definitions of what amounts to

corruption, the Commission should continue to make effort to ensure

that the sentencing policy is relevant and deterrent enough to serve

the purpose of discouraging corrupt activities.

5. The relationship of the Commission/ Act with other

institutions/Laws and its independence.

The Commission is established as an independent body answerable

only to Parliament[96]. In public law theory, the concept of independence

involves the institutional, decisional and financial independence of the

body concerned. Unfortunately, the Commission’s expenditure is subject

to the approval of Treasury, a factor that is likely to impede the functions

of the Commission[97]. The ideal position would have been for the

Commission to present its estimates directly to Parliament. Nevertheless,

the practical reality is that the Commission must continue to assert its

authority and to cultivate a friendly rapport with the Treasury, to ensure

that its operations receive adequate funding.

The Commission will also find it necessary to cultivate a rapport with

the Criminal Investigations Department, the Office of Attorney

General, the Office of the Director of Public Prosecutions, and the

Special Magistrates all of who will be crucial in the prosecution of

the cases investigated by the Commission. Moreover, it will also be

necessary to work with the National Audit Office and the relevant

Committees of the National Assembly. Disputes between government

departments have great operational impact and should be avoided as

much as possible. In respect to the laws, the Commission will necessarily familiarize itself with other laws that may impact on its

work. These laws will definitely include the Constitution, and laws

relating to public finance and management.

6. Important innovations of the Anti-Corruption and Economic

Crimes Act 2003

The Act makes four important innovations. First, the regime of

corruption orthodoxically associated with the public sector has been

extended to cover the private sector as well. The definition of “private

sector” and “private body” envisaged under Section 2 of the Act

includes voluntary organizations, charitable organizations, companies

and partnerships, clubs and any other body or organization howsoever

constituted. There has been obvious corruption in NGOs, C.B.Os,

companies, multinationals, and Cooperative societies that has served

to drain public resources. This definitely is a bold step in the fight against

the vice, but the Commission must move to establish systems and

processes that will facilitate the effective implementation of the law.

The most valuable innovation of the Act is the fact under Section

57, unexplained assets may be taken by courts as corroboration of

the fact that a person accused of corruption or economic crime

received a benefit. This presumption of corruption shifts the burden

of proof to the accused and hence making it possible for the

Commission to overcome the problem of evidence that complex

syndicates of corruption may provide.

Thirdly, Under Section 12, the Act grants itself extraterritorial

application. This is an interesting domestication of the general

International Law principle that states have jurisdiction over their

citizens, individuals or corporations wherever they may be found[98].

Consequently, a Kenyan national may be brought before Kenyan

Courts for corruption offences committed in a foreign Country. In the famous American case of Blackmer vs. United States[99] an American citizen implicated in the Teapot Dome Scandals of the 1920s fled to France where he was ordered to return to the United States to testify in a Criminal trial. Though he argued that he was immune from jurisdiction of the United States while he resided in France, the Supreme Court held thus;

[Blackmer] continued to owe allegiance to the United States.

By virtue of the obligations of citizenship, the United States

retained authority over him, and he was bound by its laws

made applicable to him in a foreign country. Thus, although

resident abroad, the petitioner remained subject to the taxing

power of the United States… For disobedience to its laws

through conduct abroad, he was subject to punishment in the

Courts of the United States…Nor can it be doubted that the

United States possesses the power inherent in its sovereignty

to require the return to this country of a citizen, resident

elsewhere, whenever the public interest requires it, and to

penalize him in case of refusal.”[100]

Perhaps in the anticipation of this possibility, the Commission under

Section 12(3) has even been given the exceptional authority of

working in collaboration with foreign governments and international

and regional organizations. It will be interesting to see how the

Commission seeks to implement this provision in the light of the

new developments in international law.[101]

Finally, the Act under Section 65 has provided for the protection of

informers. This is an important legal aid to ensure that there is no fear

whatsoever of vindication should one divulge information relating

to corruption102. This should act as an incentive for persons to report

any acts of corrupt practices.

The Independence of the judiciary in the fight against corruption

As pointed out earlier in this paper, a substantial part of the fight

against corruption involves criminal litigation. Most of this litigation

occurs in the magistrates courts. Since corruption is a crime it would

be useful to examine its likely perpetrators. Crime is committed at

many different levels in society by persons at those levels. Thus junior

civil servants or officers are more likely to commit petty crime;

managers to commit serious fraud; senior government mandarins in

cahoots with big business, massive fraud and looting. This usually

leads many to conclude that the most harmful corruption and crime

is the white collar type which, involves the crème de la crème of society.

Such people have influence in society.

With the publicly acknowledged measly earnings within the ranks of

the magistracy, there is a potential framework of compromise of the

justice system by the corrupt, but powerful, individuals through

financial manipulation of the magistrates.

Further, magistrates do not enjoy security of tenure in office. Since

corruption, particularly official corruption involves the high and the

mighty in the political system, it is probable that should the magistrate

convict such a person and then a successful appeal is undertaken, there

may be a revenge act once the person resumes the high office of power.

To this extent, it would appear that the infrastructural set up of the

judiciary to fight corruption is not immune from manipulation and

thus, its independence is suspect.

The Independence of the office of the Attorney General in the

fight against corruption

The office of the Attorney General is established under Section 26 of

the Constitution as an office in the public service. The principal role

played by the Attorney general in the anti-corruption war is the

prosecutorial role by virtue of his powers under Section 26(3) of the

Constitution of Kenya. Section 109(5) of the Constitution confers

security of tenure upon the person of the Attorney General. Further,

Section 26(8) of the Constitution prescribes that in the exercise of his

prosecutorial powers as set out in the Constitution, the Attorney General

shall not be subject to the direction of any other person or authority.

The above constitutional prescriptions appear to guarantee the

independence of the Attorney General which independence should,

all other factors remaining constant, be felt in the manner in which he

handles corruption related cases. It does not require emphasis that a

substantial work of the office of the Attorney General is conducted

by officers subordinate to the Attorney General. As a consequence,

the conditions of service of these officers must be considered in

evaluating the overall independence of the office.

A legal issues magazine, ‘The Lawyer’ noted as follows in an exclusive

interview with the immediate former Director of Public Prosecutions:

‘Murgor pauses here to compare the terms of service of the

Kenya Anti-Corruption Commission and the department of

Public prosecutor. In other jurisdictions, he notes, the practice

is for the salaries of prosecutors to be better than those of

the investigators. In Kenya, the reverse is the case, and an

absurd and demotivating one. While state counsels – the public

prosecutors – in the State Law Office earn about Kshs. 26,000

per month, the investigators – policemen in the Kenya Anti-

Corruption Commission – earn about Ksh. 200,000.00. And

the DPP – even with the super negotiated new terms – earns

about a quarter of what the Director of KACC makes’.

It is apparent from the foregoing interview that the officers subordinate

to the Attorney General are not guaranteed financial independence

which might be a cause for financial manipulation.

Further, the recent casual removal of the Director of Public

Prosecutions from office has led to the realization that the holder of

that office does not enjoy security of tenure. He is thus an executive

appointee and may operate at the whims of the executive even in the

face of massive official corruption.

The relationship between the AG’s office and KACC.

As matters stand now, the role of KACC in the combative approach

towards corruption ends at the investigative stage and the office of

the Attorney General is expected to take over and prosecute the matter.

The revelations from the interview with Mr. Murgor cited above

reveals that in spite of the enthusiasm with which investigations may

be undertaken, the “demoralized” officials at the state law office may

not undertake the prosecution with similar enthusiasm.

Further, it is worthy of note that the success or failure of the anticorruption

is largely a question of public perception. The buck-passing

between the office of the Attorney General and the Kenya Anti-

Corruption Commission leads to loss of public confidence.

Consequently, the much needed public support in the fight against

the vice may be lost.

Comparative Appraisal – The Case Of Lesotho

Lesotho has been selected for the comparative case study for the

reason that it shares a common law tradition with Kenya and it has

had to deal with corruption in the course of executing one of the

largest water projects in the world – the Lesotho Highlands Water

Project. Particular regard shall be had to the prosecutorial authority

under the anti-corruption authority in Lesotho and the dividends that

this has borne particularly in the Lesotho Highlands Water Project

referred to above.

The Lesotho Highlands Water Project is of significance to this paper

because like the Goldenberg gold and diamonds export refund scheme

in Kenya, it is deemed to be a case of corruption quite unprecedented

not only in the history of Lesotho but also of Southern Africa.[102] The

legal regime for the combat of corruption in Lesotho is the Prevention

of Corruption and Economic Offences Act, 1999.

The implementing institution under this Act is the Directorate on

Corruption and Economic Offences which consists of a Director,

two Deputy Directors and ‘such other officers of the Directorate as

may be appointed’.[103]

The functions of the Directorate are spelt out as:

a) To receive and investigate any complaints alleging

corruption in any public body;

b) To investigate any alleged or suspected offences under

the Act, or any other offences disclosed during the

investigation;

c) To investigate any alleged or suspected contravention

of any of the provisions of the fiscal and revenue laws

of Lesotho;

d) To investigate any conduct of any person, which in the

opinion of the Director, may be connected with or

conducive to corruption;

e) To prosecute, subject to Section 43, any offences

committed under the Act;

f) To assist any law enforcement agency of the Government

in the investigation of offences involving dishonesty or

cheating of the public revenue;

g) To examine the practice and procedures of public bodies

in order to facilitate the discovery of corrupt practices

and to secure the revision of methods of work or

procedures which in the opinion of the Director, may

be conducive to corrupt practices;

h) To instruct, advise and assist any person, on the latter’s

request on ways in which corrupt practices may be

eliminated by such person;

i) To advise heads of public bodies of change in practice

or procedure compatible with the effective discharge of

duties of such public bodies which the Director thinks

necessary to reduce the likelihood of the occurrence of

corrupt practices;

It is discernible from the foregoing that the major step forward with

the Lesotho statute is the vesting of prosecutorial powers in the

Directorate.

The Lesotho statute is however, objectionable on three fronts;

1. The Directorate is a public office subject to the Public

Service Act 1995. It is my considered opinion that this

renders the Directorate to operate like any other department

of government – equal to a water works inspector – and

thus lacking in the much needed independence.

2. The manner of appointment of the Director is such that it

portrays him purely as an appointee of the political regime

of the day. There is lack of involvement of other

stakeholders like parliament in the process of appointment.

3. In the absence of separate corporate status for the

Directorate, it is not practical for it to pursue its objectives

without interference. This is because the procurement

procedures of the Directorate may be subject to approvals

from other government bureaucracies like Permanent

Secretary’s approval which may sometimes be a very

frustrating process.

The most practical signification of the handling of corruption related

cases in Lesotho related to the Lesotho Highlands Water Project which

was undertaken under the auspices of the Lesotho Highlands

Development Authority.

Massive corruption having been unveiled by the audit conducted by

the firm of Ernest & Young in the early 1990s massive investigations

were launched leading to the unearthing of the accounts of senior

parastatals heads in Swiss Banks. By December 1999, prosecutions

commenced and the prosecuting authorities were faced with a barrage

of lawyers never before witnessed in the High Court of Lesotho. The

Chief Executive of the parastatals was convicted in 2002 and

sentenced to 18 years imprisonment. His appeal was dismissed save

for the sentence that was reduced to 15 years imprisonment.

This a real example for the Kenyan sentencing authorities (read the

judiciary) which has earned the bad name for sentencing corruption

related offenders to contemptible terms of prison.

Recommendations and Conclusions

There can be no fixed strategy for the war against corruption. The

more the anti-corruption mechanisms evolve, the more corruption

mutates and takes new forms to avoid the existing legal framework. As

a result, there is continued need to keep re-looking at our legal

frameworks against the realities on the ground and forging a way forward.

The most urgent need for the anti-corruption strategy in Kenya at the

moment is to complete the autonomy of the Kenya Anti-Corruption

Commission by vesting it with prosecutorial powers. This will make

the buck to stop at the Commission’s door hence obviate a situation

where the buck has kept on passing between the Attorney General’s

office and the Commission on progress in the anti-graft war.

As noted above, the Kenya Anti-Corruption Commission is not

financially independent. The Commission’s expenditure is subject to

the approval of Treasury, a factor that is likely to impede the functions

of the Commission105.

The ideal position would have been for the Commission to present its

estimates directly to Parliament. The Commission may have to consider

105 Section 13 of the Act

this as a short term proposal since independence is at the centre of the

public confidence in the Commission and its overall functioning.

There is no gainsaying that the current establishment of the Kenya

Anti-Corruption bodies has been the consequence of a battle long

fought. As a country, Kenya needs now to build on what we have and

not to demolish structures and start new ones which will require so

much “acclimatization” with there roles before the tax payer begins

to reap dividends.

Kenya Anti-Corruption Commission performance[104]

INVESTIGATIONS

The Commission conducts investigations into all

corruption-related matters, reported to it, as defined by

the Act. Upon completion of investigation the files are

then forwarded to the Attorney General for prosecution.

The Commission also carries out investigations to trace

assets suspected to be corruptly acquired with a view to

instituting civil recovery proceedings on behalf of the

Government and other public bodies.

Reports received by the Commission

The Commission received and analyzed a total of 7,888

reports as compared to 3,234 in 2004/05, reflecting an

increase of 144%.Out of these reports, 1,150 (15%) fell

under our mandate and were allocated for investigation

by the Commission; 885 (11%) were forwarded to other

Investigative agencies because they disclosed criminal

offences which do not fall under our Act; 1,474 (19%)

were referred to Public Service Institutions for

administrative intervention; 59 (1%) required additional

information, whereas 4,071 (51%) reportees were

appropriately advised. After analysis, 249 (3%) reports

were found to deserve no further action either because

appropriate action was being taken by other agencies, or

because they lacked sufficient information to facilitate

investigations. In the latter case,

the reports were from anonymous sources, thereby

making it difficult to contact them for more

information.

Ongoing Major Investigations

The Commission is undertaking investigations into scores of cases involving allegations of grand corruption by public officers and private contractors whose value is estimated at Ksh.75.1 billion.

Sting Operations

During the year under review the Commission handled

five hundred and fifty one Trap and Sting Operations

leading to the following:

a) Arrest and charging of over 140 suspects in court,

among them senior government officers from the

Office of the President, Kenya Revenue Authority,

Ministry of Lands, Nairobi City Council and a lawyer

in private practice.

b) Increased reporting of bribe demands because of the

publicity which resulted from the sting operations.

c) The trend for public servants to make outright

bribery demands from members of the public has

reduced leading to them devising new ways and

methods by which bribes are given, for fear of being

detected.

Covert Operations

In the year under review, covert operations were carried

out by the Commission in relation to the recruitment of

staff for the disciplined forces which had a major

national impact as detailed below:

a) Kenya Police: Investigations revealed that the

recruiting officers were receiving bribes ranging from

Ksh. 70,000/- for male recruits and Ksh.100, 000/-

for female recruits. Following a report submitted to

the Commissioner of Police by KACC the exercise

was cancelled.

b) Administration Police: Preliminary Investigations

revealed the exercise was marred by corruption.

During the recruitment exercise, KACC operatives

arrested a senior administration police officer

collecting a bribe of Ksh.40, 000/-.

As investigations progressed it was revealed that

there was an excess of approximately 600 recruits

who were recruited irregularly above the approved

number of 996 recruits. The excess recruits have

since been sent back home under unexplained

circumstances. Investigations are still on-going.

c) Armed Forces: The Commission carried out

undercover operations in the Armed Forces

recruitment which led to administrative action being

taken against senior military officers, including a

Colonel and a Major.

d) Undercover operations were also conducted into the

recruitment of KWS Rangers and Prisons Warders.

Challenges

a) There has been a marked increase of reports received

in the year leading to a huge volume of work. This

has strained the current human resource in the

Commission.

b) Inadequate legislative protection of whistle blowers

and witnesses has limited the number and quality of

reports submitted to the Commission due to fear of

victimization. The Commission is in the process of

installing a web-based anonymous reporting system

which will gurantee anonymity and confidentiality

of the whistle blowers and other informants.

c) Failure by the public to understand the core

functions and mandate of the Commission has led to

increased receipt of reports that should be handled

by other agencies.

d) Failure by the public to appreciate that prosecution

trial and conviction is not part of the Commissions

mandate has led to unrealistic expectations.

e) Suspects and witnesses leaving the jurisdiction in

the course of investigations therefore complicating

and protracting the process of investigations.

TRACING AND RECOVERY OF ASSETS

The Commission is mandated to investigate the extent

of liability for the loss of/or damage to any public

property and to institute civil proceedings for the

recovery/restitution of such property for compensation.

The Commission’s mandate hinges on the establishment

of a connection between a specific person(s) with the

property allegedly damaged or lost. The Commission is

further mandated to investigate persons reasonably

suspected of corruption and economic crime and to

institute forfeiture proceedings in respect of

unexplained assets against them. This process involves

asset tracing/tracking which entails filing of applications

in Court to facilitate investigations into suspect bank

accounts, search of premises and seizure of evidential

material and travel documents of persons under

investigation.

During the report period, the Commission filed and

prosecuted 78 applications. Seventy four of these applications were for search and seizure warrants for

investigating bank accounts and premises of persons

suspected of involvement in corruption; and four

applications were for orders to impound

passports/travel documents of persons under

investigation. The Commission obtained and executed

orders in all the applications.

 Investigations for Asset Tracing

The Commission investigates allegations against

persons suspected to have acquired property through

corrupt conduct.  below indicates some of the

ongoing investigations undertaken by the Commission

during the period under review estimated value of

Ksh.1.5 billion.

Traced Public Assets

The Commission has set out to trace and recover

corruptly alienated, lost or damaged public property in a

multifaceted approach that ensures firm and faithful

enforcement of the law. The process of tracing/tracking

is complex and time consuming. However, the

Commission has traced several assets and identified

several cases of tax evasion in both rural and urban areas

whose total estimated value is Ksh. 7 billion, as listed

below.

a) up market residential estate in Nairobi suspected to be

property of the City Council of Nairobi. (Case to be filed

in court)

b) residential house in Lavington Nairobi- property reserved

for the use of the Mayor of the City Council of Nairobi, but

suspected to have been fraudulently sold. (Case filed for

recovery of residential house)

c) 58 Acres of land in Karen property belonging to KPLC Staff

Retirement Benefit Funds Scheme. (Case to be filed in

court)

d) 4 large farms (Kitale, Nakuru) suspected to have been

corruptly acquired. (Case to be filed in court)

e) 15 Residential properties in prime locations (Nairobi,

Kitale, Eldoret) suspected to have been corruptly acquired.

(Case to be filed in court)

f) a five star hotel at the Coast suspected to have been

acquired with proceeds from Anglo leasing type contract

(Caveat in place to preserve the property).

g) Mt Elgon Hospital (Kitale) – alleged to have been

fraudulently transferred to a private company from a public

trust. (Case filed for recovery)

h) 236 acres land in Tigoni belonging to KARI alleged to have

been irregularly acquired. (Case filed for preservation)

i) 3 plots (Nairobi, Kitale, Eldoret suspected to have been

acquired with proceeds of corruption and economic crime

(Case to be filed in court)

j) 3 blocks of residential Flats (Nairobi) suspected to have

been acquired with proceeds of corruption and economic

crime(Caveat in place to preserve the property)

k) 679 acres of land belonging to Rift Valley Institute of

Science and Technology – Nakuru. (Case filed for recovery)

l) suspected tax evasion by a local bank. (Case to be filed in

court)

m) a Flower Farm in Machakos District alleged to have been

acquired with proceeds from the Anglo Leasing type

contracts (Caveat in place to preserve the property)

n) suspected evasion of stamp duty payable upon registration

of a transfer in respect of L.R. No.10074 C.R. 27784/1

belonging to the Municipal Council of Malindi. (Case to be

filed in court)

 

Recovered Public Properties

During the period under review, the Commission issued

over 450 demand notices in respect of illegally or

irregularly alienated public land. Pursuant to the

notices, 48 title documents were surrendered to the

Commission. These were in respect of public properties

in rural and urban areas whose approximate value is Ksh.

97.29 million. The Commission has commenced the

process of transferring the same back to the

Government or respective public institutions. One

hundred and thirty written responses were received

while others were done in person giving or offering

varied explanations to justify the allocations or

ownership. Where the title documents have not been

surrendered and no plausible explanation has been

forthcoming, the Commission has either instituted

recovery proceedings or extended investigations with a

view to establishing the propriety or otherwise of the

transaction(s) in issue.

 

Recovery of Embezzled Public Funds

During the report period, the Commission commenced recovery proceedings for the sum of Ksh. 96.14 million embezzled from various public institutions, out of which Ksh. 4.54 million was recovered and Ksh. 8.052 million was frozen. Recovery proceedings are on-going in courts for the balance of Ksh.83.54 million.

Asset Recovery Proceedings

The Commission prepared pleadings in 43 cases for restitution/recovery or preservation of illegally alienated, lost or damaged property. Eighteen of the filed cases were for recovery of a liquidated sum of Ksh. 83.5 4 million. Another eighteen cases were for recovery of land whose estimated value is Ksh. 1.5 billion.The Commission also obtained orders to preserve property worth over Ksh. 568,361,613 in applications brought under either Section 56 of the Anti-

Corruption and Economic Crimes Act, 2003 or the provisions of the Criminal Procedure Code.

Implementation of Reports by Watchdog Agencies and Institutions

The Commission undertook the responsibility of implementing various reports and findings from

watchdog agencies, Commissions of Inquiry and other investigative institutions. The implementation of such reports was carried out within the legal framework of the Anti-Corruption and Economic Crimes Act, 2003. Requiring special mention in this category are the reports of: the Goldenberg Commission, the Ndung’u Report, the Efficiency Monitoring Unit (EMU), reports on various investigations and audit on public bodies, the Controller and Auditor General Annual Reports and the Report on the Security Contracts, commonly known as the  anglo-Leasing. With regard to the implementation of the Goldenberg Report, the Commission alongside the Criminal Investigation Department formed a specialized investigation team that was mandated to take custody of all the evidential material produced before the Bosire  Commission and construct investigation files for each of the suspects. The team was also to analyze and evaluate the evidence against each of the suspects and make appropriate recommendations. The team recommended charges against the suspects in relation to the loss of

Ksh. 5.8 billion. The suspects have already been charged. With regard to civil recovery of the money that was lost in the Goldenberg scandal, the Commission has recommended an amendment to the law to pave way for filing of recovery proceedings. The Commission has

also invoked the provisions of the Anti-Corruption and Economic Crimes Act to compel the suspects and their accomplices to account for their wealth, which will pave the way for forfeiture proceedings in appropriate cases.

Challenges faced in the course of Asset Tracing and Recovery

a) Lack of data and information on the processes of alienation and/or acquisition of public properties at the various public registries, thus rendering a paper trail almost impossible. In some cases, the problem emanates from disorganized record keeping in the various public offices rather than unavailability of information and records.

b) In certain instances, prospective witnesses, including public registry officials are reluctant to record statements, very often feigning ignorance. This creates an obstacle in the preparation of cases to be taken to court.

c) Most properties under the Commission’s investigations have been dealt with by more than

one party thus making tracing them more complex.

d) Tracing of assets in the multi-billion cases in which the Commission has been undertaking investigations involve cross-border and international transactions which require gathering of evidence abroad.Without an elaborate legal framework by way of mutual legal assistance to facilitate gathering of evidence abroad, the Commission has been greatly hampered in its

endeavors.

e) The institution of constitutional references and judicial review applications by parties under

investigations thereby further complicating tracing efforts.

f) Slow determination and/or disposal of restitution proceedings due to inadequate Judicial capacity.

PREVENTIVE SERVICES

The Preventive Services Directorate is mandated by the ACECA 2003 to provide technical and advisory services to both public and private sector organizations. During the past year, the Commission undertook a number of examinations, research projects and public education

programmes as detailed below:

 National Anti-Corruption Plan (NACP)

The Commission successfully steered the preparation of the National Anti-corruption Plan which culminated in the convening of a Stakeholders’ Conference representing all sectors at the Bomas of Kenya on 30th May 2006. The conference validated the Plan, which was launched on 5th July 2006.

 Public Service Integrity Programme

The Public Service Integrity Programme (PSIP) is a partnership between the Kenya Anti-Corruption Commission, the Directorate of Personnel Management, Provincial Administration and other arms of government aimed at improving service delivery through elimination of corrupt conduct from public service. In the period under review, 469 public officers were trained and sensitized on concept of corruption, the legal framework, organizational culture and corruption prevention strategies.

 Development of Information, Education and Communication (IEC) Materials

The Commission developed and disseminated Information, Education and Communication (IEC)

materials to members of public at various fora. The Table 7 below summarizes the distribution of IEC materials during the period under review:

Type of IEC Material Number Distributed

Frequently Asked Questions Booklets 43,419

About the Commission Brochures 28,014

Promoting Integrity in Schools Leaflets 27,330

TOTAL 98,763

In an endeavor to make the laws on corruption and economic crimes simple for members of the general public to understand, the Commission developed simplified and illustrated versions of the following statutes:

a) Anti-Corruption and Economic Crimes Act, 2003

b) Public Officer Ethics Act, 2003

c) Public Procurement and Disposal Act, 2005

d) Case studies illustrating corruption ffences and economic crimes.

The Commission also developed a brochure entitled “On the Frontline Against Corruption” detailing the Commission’s efforts in the war against corruption.

 Training, Research,Advocacy and Governance (TRAG)

The Commission conducted a TRAG certificate course which provided both theoretical and practical based knowledge, skills and attitudes on anti- corruption studies. The course is aimed at mainstreaming good governance principles in the institutions and creating an understanding of anti-corruption legislation, the investigation and prosecution processes. It is funded by the United Nations Development Programme (UNDP), and the Government of Kenya with Egerton University as a collaborating partner.

The Commission mounted three one-month courses where a total of 96 senior officers drawn from government ministries and departments, universities, local authorities, parastatals, civil society and professional societies were trained.

 Outreach Programme

In its Outreach Programme, the Commission used the Agricultural Society of Kenya Shows and the Nairobi International Trade Fair as a means of communicating anti-corruption, ethics and integrity messages as well as enlisting public support in the fight against corruption. These Shows provide a vital avenue for public education where ordinary Kenyans, business people, tourists and investors interact. Through these initiatives, the Commission sensitized 42,831 people and distributed 44,500 assorted IEC materials for use by members of Education for National Integrity As part of its education programmes, the Commission works in close collaboration with the Ministry of  Education, Science and Technology in fostering  nticorruption

and integrity initiatives through formal curriculum and co-curriculum activities. The strategy of

the programme is to target the acquisition of positive values, attitudes, skills and the formation of character that reinforces integrity especially among the youth. One of the strategies adopted by the Commission was through sponsorship of music and drama festivals. The competing pieces that reached the drama festival finals consisted of 17 plays, 5 choral verses, 4 dances, 1 solo verse and 1 narrative. These pieces were recognized for their excellence in depicting the vice of corruption and unethical practices. A play entitled: “WHAT WE PRESENT”was ranked the best overall play of the festival. A choral verse entitled “The Chai Factor” presented during the music festival, was the best overall in its category and has been recited at major national  functions. All these sensitization and sponsorship engagements with the Ministry of Education,

Science and Technology have led to the infusion and integration of anti-corruption

content in curriculum and examinations. Specifically, in the 2005 Kenya Certificate of Secondary Education (KCSE) Literature paper, there were compulsory questions items that tested the candidates’ knowledge of anti-corruption and ethics issues.

Training of Trainers

The Commission carried out a Training of Trainers programme aimed at training facilitators from different training institutions to enable them mainstream anticorruption and governance content in their curriculum. A total of 143 resource persons drawn from over a wide

spectrum of Government training institutions were trained. The programme funded through the

Governance, Justice, Law and Order Sector (GJLOS) Reform Programme undertaken by the Government of Kenya.

 Anti-Corruption Training and Sensitization Seminars

The Commission held consultative meetings with various stakeholders to establish strategies aimed at sensitizing public officers on the phenomenon of corruption. Following the consultative meetings, a number of anti-corruption training and sensitisation seminars were held to enable public officers deliver improved services and desist from corruption and unethical conduct. More importantly, these officers spearheaded the mainstreaming of anti-corruption and ethics in their organizations.

Media and Communications Programmes

The Commission, in collaboration with various media houses, designed and developed specific messages on anti-corruption geared towards positive attitude and behaviour change. These messages included spot adverts, branding of programmes, sponsorship of popular programmes, and participation in interviews. The Commission was able to achieve three main objectives, namely:

a) Disseminating information about its functions.

b) Educating the public on the dangers of corruption.

c) Fostering dialogue with target audience.

The Commission sponsored prime time programmes that

targeted a broad spectrum of listeners and viewers.To this end

the Commission sponsored the KBC “news clock” and “Je Huu

ni Ungwana?” programmes. The “Je Huu ni Ungwana?”

programme uses day – to – day common mwananchi

activities to profile and pass integrity-themed messages.

The Commission also sponsored programmes on seven

popular radio and television outlets and channels as

follows:

· Kamusi ya Leo – a segment that explains anticorruption

and ethics vocabulary in Kiswahili on

Kenya Television Network’s, ‘KTN Leo’ news

programme, · Soul Reflections – a segment featuring

philosophical quotes on integrity on KTN · “Up Next” – a segment that runs six times daily in

the evenings giving 42 exposures per week of anticorruption

messages · News Beat - on KISS FM (radio) news with anticorruption

messages · News Beat - on CLASSIC FM (radio) news with anticorruption

messages.

According to the 2006 Steadman Media Report, these

programmes reached a combined total of 4.1 million

Kenyans daily in urban areas alone.

CORRUPTION PREVENTION

Various strategies are used in carrying out the Commission’s

corruption prevention functions. The strategies aim at

identifying organizational weaknesses and developing

appropriate measures to mitigate against corruption risks.

In addition, the Commission seeks to enhance capacities of

the targeted organizations to prevent corruption through

integrity and governance training and partnerships. The

Commission undertook the following corruption prevention

activities during the period under review as highlighted

below:

 Systems Reviews (Examinations and Corruption Risk Assessments)

An examination/corruption risk assessment entails the

review of existing systems, policies, procedures and

practices in the operations of public and private

organizations. The review is carried out with a view to

providing practical solutions aimed at minimizing

corruption opportunities in the procedures and

operations of the organizations.

The Commission conducted examinations on the

Registration and Licensing of Motor Vehicles, Ministry of

Immigration; and the City Council of Nairobi; whose

findings were as follows:

 Registration and licensing of motor vehicles and enforcement of traffic laws

The Examination was conducted in March 2005

targeting the Ministry of Transport, the Traffic

Department and the Road Transport Department of the

Kenya Revenue Authority. It was presented to the Chief

Executives of the three institutions in February 2006.

The examination revealed the existence of a market for fake

licensing and registration documents of motor vehicles and

outlined various operational and structural weaknesses in

the institutions. In response to the Commission’s

recommendations, a joint Implementation Plan was

submitted by the three examined institutions. The

Implementation Plan indicates areas of action namely:

· Fast tracking the law review process by the Ministry

of Transport to streamline and strengthen the

operations of the Transport Licensing Board and to

address emerging issues in the transport industry. · Introduction of a car tracking system by KRA that

will assist in addressing the problem of illegally

imported vehicles. · Development of an operational guide for police

officers in their day to day licensing and registration

duties. · Investigation of forged TLB stickers and other motor

registration documents by the Revenue Protection

Unit of KRA. · Strengthening of the valuation section at KRA to

address the irregularities in assessment of duty for

vehicles. · Preparation of a draft cabinet memorandum by KRA

seeking approval to commence the process and

issuance of electronic logbooks and drivers licenses. · Issuance of a directive to all police officers to declare

ownership of public service vehicles.

RESEARCH PROGRAMMES

Research plays a critical role in the provision of

knowledge and information for social and economic

development. Research on corruption provides

information necessary for programming and measuring

national anti-corruption efforts and their impacts.

Research programmes undertaken by the Commission in

the period under review are as follows:

National Corruption Perception Survey

The Annual National Corruption Perception Survey was

conducted between October to November 2005

countrywide. The survey covered 3,312 households. The

aim of the survey was to provide baseline information

on corruption in order to better understand the nature,

form, extent and intensity and the places where it

occurs.The survey sought to document corrupt practices

which members of the public encounter on day to day

basis with a view to propose anti-corruption strategies

based on the findings.

The Report was launched on the 5th of July, 2006

alongside the National Anti-Corruption Plan. The survey

has identified problem areas in many public sector

organizations including ministries and departments

where corruption is rampant. According to the survey,

about 73% of Kenyans believe that corruption can be

fought successfully as shown in Figure 5 below.

Enterprise Survey

The Survey was conducted between March and May

2006 to assess the impact which corruption has on the

development of public and private sector enterprises.

The Survey was designed to examine the quality of the

business environment as determined by the wide range

of interactions between businesses and the

Government. Specific objectives of the survey were to:

a. Establish factors that hinder business development.

b. Determine corruption attitudes and perceptions and

their impact on growth of businesses

c. Assess the effectiveness and suitability of existing

policies and regulations in promotion of business

development

d. Establish the role of businesses in perpetuating

corruption

e. Make recommendations based on the findings.

Ministry of Finance

The strategic objectives of the Ministry of Finance are:

i.) Improve mobilization, allocation and management Government

financial resources.

ii.) Provide effective leadership and supervision to the financial sector.

iii.) Promote and sustain fair competition and protection of consumers.

iv.) Mainstream and optimize utilization of ICT developments in the

Ministry and all other Government Ministries /Departments.

v.) Improve and sustain a positive image.

vi.) Improve the quality of services provided to Government

Ministries/Departments and the public.

vii.) Create an enabling environment for development partners and the

private sector to operate effectively.

13

viii.) Enhance capacity for effective leadership and management of change.

ix.) Deliberately and effectively respond to the HIV/AIDS pandemic.

x.) Promote ethics, integrity and zero tolerance to corruption.

xi.) Mainstream monitoring and evaluation.

xii.) Restructure the Ministry for enhanced efficiency and effectiveness.

14

CHAPTER TWO: PERFORMANCE AND ACHIEVEMENTS OF THE

SECTOR

 Introduction

This Chapter reviews the sector’s past performance in core areas, highlighting

progress made, challenges and priorities for future interventions within the

framework of the Economic Recovery Strategy for Wealth and Employment

Creation (ERSWEC).

Public Sector Reforms

The Government is determined to implement far-reaching Public Sector

reforms that will provide the country with a Public Service that is able to play

its part in the economic and social development. The key reforms being

undertaken include:

Deepening Ministerial Rationalization

It is Government’s policy that the size and organization of the Civil Service be

rationalized, and where necessary reduced, to create an efficient and costeffective

workforce. The initial Ministerial Rationalization and Staff Right-

Sizing exercises completed in 2000 made significant progress towards

identifying gaps in organizational structures and staffing levels. As a result,

new organizational structures and appropriate staffing levels to man them

were proposed as the way forward.

Each Ministerial Rationalization Report also made specific recommendations

regarding overlapping and duplicating functions within and between

Ministries; establishing semi-autonomous Government agencies; and divesting

non-core functions through contracting-out, privatising, or abolition of

functions. The implementation of the recommendations started in all issue

arising from reforms Ministries during 2004/05. The process will continue in

the medium term.

Strategic Planning

Development of Ministerial Strategic Plans and Action Plans has been adopted

by the Government as a key element in deepening Ministerial rationalization.

By end of 2004, most Ministries and Departments had developed their

strategic plans. Some Ministries/Departments also took measures and actions

to divest from non-core functions previously provided. This entailed

15

transferring staff within and between Ministries/Departments and contracting

out some non-core services such as cleaning and maintenance services to the

private sector.

Staff Rightsizing

The Government has made a commitment to reduce the wage bill from the

level of 9.7% of GDP in 2002/03 to below 8.5% by 2005/06 and declining to

7.2% by 2007/08. To achieve this objective, the Government approved that

the size of the core Civil Service be reduced by 21,338 staff commencing July

2004 to June 2007, through a Targeted Voluntary Early Retirement Scheme

(TVERS).

The Scheme targets cadres in over manned and in non-core functional areas

and is eligible to civil servants who are less than 53 years old.

In addition, a total of 6,000 civil servants are expected to exit from the

Service through natural attrition without replacement over the VERS

implementation period.

Results Based Management (RBM)

The Government introduced RBM in 2004/05 to enable

Ministries/Departments to plan and achieve predetermined outputs or results .

The programme will enable Ministries/Departments to re-orientate the goals

and objectives of the workforce towards cost effectiveness and

responsiveness to customer demands and needs.

Waste Free Clean Up Kenya Campaign

A waste free programme has been piloted in a number of Ministries,

Departments and agencies. The pilot phase covered 15

Ministries/Departments, 2 State Corporations, 1 Local Authority and 7 and 8

Provincial and District Headquarters respectively. The Programme will be

rolled out in the remaining Ministries/ Departments before end of the current

financial year. There is need to deepen the process and institutionalise it in

the Public Service.

 Performance Contracts

The Economic Recovery Strategy for Wealth and Employment Creation

(ERSWEC) underscore the need to improve the performance of the public

sector and the introduction of performance contracts for Chief Executives of

State Corporations and Permanent Secretaries. It was further directed that

Heads of Departments in Ministries/Departments be part on performance

contracts.

The enabling legislation providing the legal framework for performance

contracting was gazetted in August 2004. One hundred and twenty three

state corporations had been put on performance contracts by June 2005.

Ministry’s Capabilities and Competences

Despite its short existence, the Ministry has to its advantage a range of capabilities

and competencies it can lay claim to. These are capabilities and competences it has

either developed and/or those existing within its SAGAs. These strengths have

facilitated its functioning and operations.

The Ministry’s role will be limited to policy formulation and coordination.

Implementation will be the responsibility of the SAGAs and other sector institutions.

Policy formulation is a participatory process that will involve all stakeholders. The

Ministry is to coordinate and facilitate the process and also to provide technical

advise. Some of the strengths the Ministry will use to accomplish this role are:

6 The Ministry has a core structure that is able to facilitate policy formulation.

The office of the Minister, the office of the Permanent Secretary and the newly

established Legal Affairs Department should be in a position to steer this function.

What remains now is to strengthen the Legal Affairs Department. The KLRC, the

KNCHR, the KACC, the KSL, which are all SAGAs under the Ministry have

established structures to carry out Law Reform, Human Rights, Anti-corruption

activities, Ethics and Integrity and Legal Education. The Legal Sector Reform

Secretariat, a unit of the Ministry is assigned the responsibility of steering the

legal reform programme of the Ministry. Currently, the Registrar’s Department in

the State Law Office is responsible for political parties, while the Constitution of

Kenya Review Commission (CKRC) is responsible for the review of the

Constitution. The Electoral Commission is responsible for elections. The only

function that lacks an appropriate implementation agency is the Legal Aid and

Advisory Services. It is not clear between, the SLO and the Judiciary who the

implementer is. It should be noted that the SAGAs under the Ministry and other

sector institutions though established need to be strengthened.

7 Secondly, the Ministry has the necessary capacity, expertise and resources to

provide leadership and commitment to the legal sector reforms. The Legal Sector

Reform Secretariat, a unit started in the 1990s to coordinate the legal sector

reforms has over the years steered the reform agenda and gained the necessary

experience. Comprised of a core team of reformers, it should be strengthened and

relied upon to steer the reform agenda. Moreover, a division of legal sector

reform is established within the Legal Affairs Department and will be responsible

for reforms.

8 The third strength is the Ministry’s willingness and openness to collaborate

and work very closely with all other sector institutions to address sector issues and

reforms. In this regard it is noted that the Ministry has played an effective role in

developing Governance, Justice, Law and Order (GJLO), Medium Term sector

reform programme and the Short Term Priorities Programme (STPP) 2003/04.

These particular activities have brought together all the sector institutions to

discuss and agree on the approach to the Sector Reforms. Already short-term

measures outlined in the Short-Term Priorities Programme 2003-2004 are being

implemented. The medium-term vision and strategy document, the GJLOs will be

finalised soon and will be a roadmap for reforms. The Legal Sector Reform

Secretariat, a unit within the Ministry provides secretarial services to the GJLOs.

The Ministry will facilitate the establishment of the GJLOs Programme

Coordination Office.

9 Fourth, less than two years into operations, the Ministry has appropriately

responded to a number of issues that endear it well to stakeholders and the public

in general. Building on gains made on human rights, legal and judicial reforms

and the fight against corruption; issues that are critical to socio-economic

development, the ministry has initiated/strengthened programmes that will

13 promote good governance, human rights and eliminate corruption. It facilitated

the establishment of the Kenya National Commission on Human Rights, a

successor of the Standing Committee on Human Rights. The passage into law of

the Anti-corruption and Economic Crimes Act of 2003 and subsequent creation of

the Kenya Anti-corruption Commission , important instruments in the fight

against corruption and economic crimes are milestones under the guidance of the

Ministry. The enactment of the Public Officers’ Ethics Act in May 2003 and the

subsequent declaration of wealth by public officers are major achievements of the

Ministry. The establishment of the Anti-corruption Courts and the arraignment in

court of persons suspected of corruption is also attributable to the Ministry. The

Ministry enjoys confidence and goodwill arising from these programmes. The

challenge the Ministry faces is maintaining the momentum in the fight against

corruption and upholding human rights. It is argued that corruption is still

rampant.

10 When the Ministry was created, the Kenya Law Reform Commission, the

Kenya Anti-Corruption Commission, the Kenya National Commission on Human

Rights and the Kenya School of Law were placed under its docket. These are

organizations’, well established with fairly developed structures and systems to

execute their responsibilities. The Ministry has continued to use these

organizations to promote its mandate and is poised to continue to do so.

Moreover, the Ministry is in the process of revamping them.

11 The Ministry has a core team of qualified and experienced staff. For an

organization that is at formative stage, this is important because it requires a

visionary leadership to establish adequate structures and systems to enable it

achieve its mission. To strengthen this core team, key positions are being

established. A Legal Affairs department to be headed by strong professional staff

has been created. Closely related to this is the changing attitude of staff towards

work. It is noted that staff attitude is becoming more supportive to achieving the

mandate of the Ministry.

Challenges

19

A number of external issues and challenges arise from the preceding discussions.

These issues require the considered intervention of the Ministry. The following

paragraphs capture and discuss the summary of issues at hand.

6 Corruption

Corruption in Kenya is a major concern. It is a main cause of the

deteriorating economic growth and decline in investment levels in the

country. The Ministry is responsible for Anti-corruption strategies,

integrity and ethics. Working closely with the KACC, it is expected that

appropriate policies and programmes will be put in place to realize the

government’s goal of zero tolerance to corruption. It is expected that the

Ministry will create awareness among the population on the consequence

of corruption and generally stigmatize the vice. It is also expected that

those involved in the vice will be pursued and all illegally acquired assets

be recovered. Laws that penalize corruption must be put in place.

Strategies 2.1 to 2.3 aim at ensuring that corruption is eliminated through

pragmatic programmes and effective laws.

Strategic Issue 2: Ethics, Integrity are wanting and corruption is prevalent

It is the responsibility of the Ministry to ensure good governance especially in the

public sector. This is important to ensure that government resources are

efficiently managed. The government must be transparent and accountable to the

citizenry. The Ministry working very closely with KACC and the Department of

Ethics and Governance of the Office of the President has made remarkable strides

in ensuring that ethics, integrity are virtues in public service. Efforts to eliminate

corruption have also been commendable. However, there is a lot more to be done

because these vices had been entrenched. The Ministry will therefore double its

efforts and strategies and programmes to be undertaken are discussed in section

4.2. KACC will lead the efforts.

Strategy 2.2: Strengthen the Anti-Corruption Enforcement agency

There is need to strengthen the anti-corruption organizations if the country

is to eliminate the scourge that has undermined the socio-economic fabric

of the Kenyan society. The activities programmed during the period

include; Facilitating nomination and replacement of KACC Advisory

Board, recruitment of the KACC Director and Assistant Directors,

drawing up a strategic plan for KACC, facilitating the establishment,

resourcing and operationalisation of KACC and providing political

support and oversight to KACC.

Strategy 2.3: Strengthen existing Programmes

Various programmes targeting corruption are already underway. During

the plan period, a number of activities aimed at strengthening this

programmes will be undertaken. Activities that will assist to prevent,

detect and facilitate prosecution to reduce corruption will be implemented.

The public will be empowered to take action against corruption.

Programmes to promote good governance in all organizations while at the

same time advising on how to eliminate opportunities for corruption

should be undertaken.

The Government’s national development agenda as articulated in the various policy documents is grounded on poverty alleviation, wealth creation and improving the welfare of the common person. To achieve this, there is a need to return to integrity and accountability in the management of public resources, efficient and fair administration of justice, institutionalization of democratic government, respect for and enforcement of human rights and the development of strong and stable institutions of governance.

For the development agenda to succeed further there is need to restore investor confidence in the country. Investors require a stable and predictable environment devoid of patronage, an environment of certainty and predictability of the law as well as quick and fair arbitration of disputes. To achieve this there is need to develop an efficient and effective legal and judicial system, a democratic and stable political environment, a corruption-free public service and a human rights- respecting state.

The Ministry of Justice and Constitutional Affairs was created through Presidential Circular number 1 of 2003. It was given the following mandate:-

Determination of legal policy in Kenya with regard to administration of justice, constitutional matters, law reform, anti-corruption strategies, integrity and ethics, legal education, political parties legal aid and advisory services and elections.

Promotion of the efficient and proper functioning of the legal and justice sector.

Coordination and facilitation of reforms interventions in the justice sector.

Back-stopping the legal and justice sector at the policy level.

Handling political issues for and on behalf of the legal and justice sector at the cabinet and parliamentary levels, and

Championing sectoral reforms in its core mandate issues.

Currently the Ministry of Justice has a staff complement of 156 excluding the Semi Autonomous Government Agencies (SAGA’s) such as Kenya Anti-Corruption Commission, Kenya School of Law, and Kenya National Commission for Human Rights.

Our vision at the Ministry of Justice and Constitutional Affairs is to ensure:

“A Safe, Secure, Democratic, Just, Corruption-free and prosperous Kenya for all.”

Kenyans yearn for easier access to the justice system and a democratic political dispensation grounded on a sound constitution. The Justice Ministry is equal to this task. It is the prime mover of this very ambitious and reformist programme, GJLOS.

SPEECH BY MR. M. G. WAWERU, COMMISSIONER GENERAL OF KENYA REVENUE AUTHORITY DURING THE EAST AFRICAN REVENUE AUTHORITIES COMMISSIONERS GENERAL MEETING

 

Entebbe, Uganda – 21st April 2006

Colleagues Commissioners General,
Commissioners and Heads of Department,
Invited Guests,
Distinguished Participants,
Ladies and Gentlemen:

I would like begin by expressing our sincere appreciation as Kenya Revenue Authority to the Uganda Revenue Authority for the warm reception we received and the amiable Ugandan hospitality that we enjoy.
The logistical arrangements that have been made for this meeting are impressive, and we look forward to fruitful deliberations among the Revenue Authorities present today.

Sadly, though, Kenya recently suffered a tragic loss when Fourteen Kenyans, including six members of Parliament lost their lives while on a mission to negotiate long term peace in Marsabit and Moyale districts. I would like to call for a minutes silence in honour of our departed brothers who were on the fateful mission.

Thank you.

Ladies and Gentlemen:

The East African Revenue Authorities Commissioners General Meeting is an important forum for reflecting on our efforts to improve revenue administration within our Region and beyond. The creation of Revenue Authorities enabled our Governments to create centralised systems of tax collection and accountability, which has resulted in greater operational efficiency and more effective efforts to seal the loop-holes for revenue leakage.

Indeed the importance of tax revenue to any country cannot be under-rated. The developed world got to where it is today because of tax revenues which were used to finance their Government’s development projects.
It is worth noting that the donor aid we receive today comes from the excess taxes collected from the citizens of those nations. Why can we not seek to finance our own development efforts from our internal resources? How long will the reliance on donor funding sustain us? And at what cost?

Our responsibility as Revenue Authorities is therefore great and extends to the very core of perpetuating a culture of patriotism and self-reliance. The spirit is well represented by the KRA motto which states that “To Pay Your Taxes Is To Set Our Country Free”.

To ensure it achieves its contractual obligations, KRA prepares Corporate Plans that cover Three Year Periods, which enables us to set out our goals and objectives, and thereby institute concrete measures to achieve them. We are currently approaching the end of our Second Corporate Plan which covered the period from July 2003 up to June 2006.

The Balanced Score Card has been successfully used as a management tool that provides the yardstick for performance benchmarks established along four key result areas.

Briefly, the four perspectives include:

Meeting, and exceeding, our tax collection targets

Streamlining our internal processes for effective services delivery

Focussing on the customer’s needs and

Attracting, developing and retaining high calibre employees.

In accordance with the Government’s requirement for all public service organisations to focus on effective

service delivery, the managers at KRA have signed Performance Contracts to commit themselves to achieving our organisational mandate.

Looking at KRA’s performance in revenue collection from July 2005 to March 2006, we have been able to collect a total of Kshs. 215.1 Billion (Approximately USD 3 Billion) against a target of Kshs.  222.5 Billion (Approximately USD 3.1 Billion). This represented a revenue deficit of Kshs. 7.4 Billion (Approximately USD 104 Million) or a performance rating of 96.7%. When compared to the corresponding period last year, revenue collection grew by Kshs. 15.6 Billion (Approximately USD 220 Million) or 7.8%.

The below-par performance was occasioned by problems encountered when the new Simba 2005 System was implemented, disputes in the petroleum sector due to new administrative measures, as well as the adverse impact of the drought on the Kenyan economy.

Realizing the big deficit incurred, we have instituted various proactive short-term strategies to address revenue leakages, enhance compliance and generally create an enabling environment for those who are faithful in meeting their tax obligations.

These include the use of a National Audit Plan covering all stations, a new service known as KRA 5600 which offers tax information through mobile phones, enhanced audits in Domestic taxes Department and the strengthening of the Customs Post Clearance Audit Unit. It is expected that these measures will close the gap and see KRA exceed its target for the current Financial Year.

Reforms & Modernisation Programmes within KRA
Since 2003, when KRA undertook an ambitious organisation-wide reform and modernisation programme, we are happy to report that we have made significant progress on the same. Allow me to give a brief overview of the state of affairs and achievements to date on some of our initiatives:
 
Firstly, KRA is now structured along a Regional framework that has greatly enhanced our accountability function and empowered the Regional Managers to respond more quickly to issues on the ground. This set-up has helped us achieve synergy in the use of our physical, human and financial capital.

Secondly, with regard to the Customs Services Department, we were able to install a new computer system and undertake extensive business process re-engineering. The new Simba 2005 System that was rolled out in July 2005 has now stabilised. It is proving to be a very useful tool for enhanced accountability and transparency in tax management. It has further enabled Kenya to have a centralised Document Processing Centre based at the KRA Headquarters in Nairobi.

Third, the Domestic Taxes Department is also undergoing an extensive staff rationalisation exercise and we are in the process of developing a unified legislation for use in administration of the direct and indirect taxes.
In order to ensure that the domestic taxes computer systems are fully integrated, the Authority is working with the United States Trade and Development Authority (USTDA), to undertake a feasibility study and make recommendations to acquire or develop a new integrated functional system.

In recognizing the unique demands of our large taxpayers, the KRA Board of Directors approved the creation of the Domestic Taxes Department, which comprises the Domestic Revenue and Large taxpayer Office with two Commissioners heading each Division. The Domestic Revenue division caters for Small and Medium Taxpayers, while the Large Taxpayer Office is intended to serve large enterprises and individuals with a high net worth.
The developments are in accordance with the KRA strategy to improve service provision through taxpayer segmentation.

Other developments in KRA
In October 2005, KRA held a successful Taxpayers Recognition Week, where we celebrated ten years since the Kenya Revenue Authority was formed. Several outreach activities were held to educate Kenyans on their tax obligations and the role of KRA. The climax of the events was the Taxpayers Day, at which the Taxpayers’ contribution towards the development of our country was recognised. The celebrations were graced by the presence of His Excellency the President of the Republic of Kenya, Hon. Mwai Kibaki, who was our Chief Guest.
It was truly a great day for KRA and taxpayers alike, and we thank each one of you who was able to join us on that day.

In the recent past, Kenya and some parts of the East African Region have experienced severe drought, which threatened to erode our National development efforts. Seeing the suffering of our citizens, the Kenya Revenue Authority made a donation of Two Million Shillings (Approximately USD 28,000) to His Excellency the President of the Republic of Kenya, Hon. Mwai Kibaki to boost the National Famine Relief Kitty, alongside other organisations, to avail help to those afflicted by the drought.

On the international front, I am happy to report that recently, KRA was admitted as an Associate Member of the prestigious Inter-American Centre of Tax Administrations (CIAT), alongside the CzechRepublic and South Africa.TheAuthority was invited to the 40th CIAT General Assembly in Florianopolis, Brazil, whose key discussion topic was “Potential Collection as a Goal of Tax Administration”. The meeting gave KRA an ideal opportunity to examine the best strategies for fairly and efficiently collecting taxes alongside its global contemporaries.

One of the best ways that we as Regional partners can achieve operational synergy is through the sharing of information in an efficient and timely manner.
We therefore need to ensure that our commitment is translated into firm action as provided for in the Memorandum of Understanding on Exchange of Information on Tax and Other Related Matters that was signed between the Commissioner Generals of the East African Revenue Authorities on 23rd April 2004. I have emphasised to the KRA Regional and Departmental managers to take full advantage of its provisions. If properly utilized, the MOU is a useful tool for trade facilitation and promotion of regional integration within and beyond East Africa, whilst simultaneously fighting commercial fraud.

Ladies and Gentlemen:
KRA’s day to day activities are guided by our vision, which is to be the leading Revenue Authority in the world, respected for Professionalism, Integrity and Fairness. With regard to the critical issue of upholding Integrity, corruption continues to be a serious challenge to the achievement of our goals. To address the problem, we have committed ourselves to fighting the vice in whatever form it manifests itself. KRA is serious about changing its image in the public eye to become a corruption-free entity.

The KRA Integrity Action Plan, which was developed by our Top Management with assistance from the World Customs Organisation (WCO) clearly identifies tangible structures and sets out elaborate procedures to identify, deal with, and even prevent corruption.
It pleases me to inform the meeting that today, a majority of our staff are committed to maintaining high standards of integrity as expected of KRA officers.

To ensure that we make the lack of integrity unattractive, and further discourage cases of employees being involved in fraud or tax evasion, we have begun to publicise those cases where employees have been caught and punished on account of engaging in corruption-related activities. We continue to encourage all our stakeholders, especially in the private sector, to step up the fight against corruption by embracing the use of codes of conduct to instil corporate governance among themselves. Indeed and looking at our external environment, we are now making deliberate efforts to engage the private sector more proactively in the fight against corruption.

Finally, in order to have systems which can deliver on our mandate, the Authority has set out to obtain international recognition by getting ISO 9001:2000 QUALITY CERTIFICATION. Already, personnel have been trained to document our internal processes in preparation of the external quality audits and subsequent certification by 1 July 2006.

With those remarks, fellow Commissioners General and distinguished participants, I thank you once again for being here today and wish you fruitful deliberations.

God bless you all.

Governance Justice Law and Order Sector

The Governance, Justice, Law and Order Sector is Kenya’s most ambitious effort at reforming its governance, justice, law and order sectors to date.

The seeds of reform were started way back in 1982 with the establishment of the Kenya Law Reform Commission, and revisited a decade later – in 1992 – when the Attorney General established 15 reform task forces with a mandate to review and update Kenya’s laws in areas such as company law, laws relating to women, public order and security, auctioneers and court brokers and children.

A more structured approach to the reform process was added in 1998, when the Chief Justice appointed a committee chaired by a judge of the Court of Appeal, Hon Mr Justice Kwach to review and report on the administration of justice in Kenya. The Kwach Report proposed several far-reaching recommendations, including proposals to:

Increase judicial personnel, and improve employment terms and conditions;

Develop and implement a code of conduct for judicial personnel backed by an inspectorate unit;

Improve facilities within the judiciary, reorganize case handling and management systems, simplify court procedures and introduce Alternative Dispute Resolution (ADR) mechanisms; and

Split the High Court into four divisions namely; the Family, Commercial, Civil and Criminal Divisions.

In the two decades since then, the impact of these intended reforms was not felt as strongly as originally intended due to systemic and institutional failure, the legacy of authoritarian rule, human rights abuses, and widespread corruption that had tainted government institutions including the Judiciary.

The GJLOS reform programme is led by the Kenya government and seeks to implement far reaching reforms in the public sector. It is a response whose main hallmark is the sector wide approach that will support better governance, justice, law and order. By reforming these sectors, the badly needed environment that will ensure a more responsive government, better quality of life and faster economic growth will have been created. In total, 32 government institutions and ministries are involved in this ambitious programme.

GJLOS is a critical programme. Domestically, it was Kenya’s first Sector Wide Approach (SWAP), bringing together erstwhile antagonists in the governance and justice sectors including government, donors, civil society and the private sector. A SWAP is a “A method of working that brings together government, donors and other stakeholders within any sector. It is characterised by a set of principles rather than a specific package of policies or activities. This approach involves movement over time under government leadership towards: broadening policy dialogue; developing a single sector policy (that addresses private and public sector issues) and a common realistic expenditure program; common monitoring arrangements; and more coordinated procedures for funding and procurement.” They initially emerged in the health sector, and have subsequently gained popularity in a number of other sectors such education and health. However, they are comparatively rare in the justice or governance sectors.

The programme endeavors to see an end to the endemic corruption and generally poor governance of the past. GJLOS is keen to strengthen anti-corruption legislation and institutions. The programme also supports the current process that will give Kenyans a new constitution.

This reform programme is also about facilitating the development of laws that enhance democracy in political parties. It is about creating and expanding space for Kenyans, especially women and children, to freely claim their human rights. GJLOS builds mechanisms that will enable greater openness and transparency in GJLOS institutions.

Reforming the judiciary and the entire judicial system is at the core of the programme. It peers deeper into the entire criminal justice system and supports measures aimed at prison decongestion, the application of community service orders as an alternative to rehabilitating petty offenders, the strengthening of Kenya’s public prosecutions function, supporting legal aid initiatives and strengthening the parole system through probation and aftercare services.

Through strengthening the justice system, better law and order will help reduce not only crime but the fear of crime. This includes greater emphasis on crime prevention. The GJLOS reform programme is helping to improve the services of the police and other law enforcement agencies. This combines the provision of equipment with changes in attitudes to law and order through various capacity building initiatives, including retraining of staff on work culture, attitude change and community policing initiatives. One of the goals under this sector, is the launch of a national crime prevention strategy. In addition, the programme is helping to reform Kenya’s investment and commercial laws by supporting the simplification of complex legal rules and procedures.

The programme seeks results in six key areas. Using the police as an example GJLOS would ensure :-

Responsive and enforceable policy, law and regulation by for example seeking a preventative, proactive police service.

Improved service delivery by GJLOS institutions – by aiming for greater police accountability and response time, supported by world-class IT-led crime reporting and victim processing systems.

Reduction of corruption related impunity by securing progressively improved public ratings within the Kenya Bribery Index for results achieved in reducing corruption and impunity within the police force.

Improved access to justice especially for the poor, marginalized and vulnerable by targeting an improved gender sensitive police force that has the recommended police to population ratio.

More informed and participative citizenry and non state actors by seeking wider community support for local-level (community) policing initiatives.

Effective management of the GJLOS reform programme by engaging effectively in cross-cutting reform initiatives via Thematic Group participation.

GJLOS hopes that every Kenyan will receive better services from the participating institutions while ensuring that those institutions are better capacitated to deliver quality services.

Role of MOJCA and GJLOS

(GJLOS First Joint Review Report, PROGRAMME REVIEW FINAL REPORT

Submitted to the first Joint Review meeting, December 2004 Prepared by the Advisory Team: David Everatt, Karuti Kanyinga, Matthew J Smith and Pauline Nyamweya)

The new government and GJLOS

21.       In the general elections held in December 2002, the National Rainbow Coalition (NARC), a coalition of opposition political parties and reform-minded individuals campaigned on a governance reform platform and won. Upon assuming office, the new government developed a comprehensive policy framework, the Economic Recovery Strategy for Wealth and Employment Creation (ERS). The recovery programme identified four priority areas as the foundation of growth. Among these were strong governance intuitions. The government recognised the relationship between governance and sustainable development and outlined various reforms in public administration, national security and law and order.3

22.       The new government introduced various legislative and institutional reforms to enhance accountability in the public sector, arrest the spread of corruption and deal with the legacy of the previous regime. Among the new institutions created to foster the required governance reforms included the Ministry of Justice and Constitutional Affairs (MoJCA), and a new department in the Office of the President, namely the Department of Governance and Ethics.

23.       Establishing MoJCA re-kindled interest in governance and legal sector reforms as donors moved to support the reform agenda of the new government. Relations between donors and the new government improved dramatically.

3 Republic of Kenya. 2003. Economic Recovery Strategy for Wealth and Employment Creation (2003-2004.

Nairobi: Government Printers

GJLOS Programme Review December 2004

6

24.       GJLOS emerged as an important outcome of these new relations. The programme was conceptualised as a SWAP, bringing together government, donors, civil society and the private sector on the basis of shared principles, and under the leadership of the government via MoJCA.

25.       The programme focuses on strengthening the sector institutions for efficient, accountable and transparent administration of justice. It involves a wide array of governance and justice institutions. There are about 30 departments implementing activities in the programme.

They are drawn from several ministries relevant to the governance and justice sector

including Home Affairs, Office of the President – Provincial Administration and National

Security, the Department of Governance and Ethics, the Judiciary and the Attorney

General.

GJLOS and reform: ‘walking a narrow path’

26.       Writing about judicial reform, Deya noted that since the election victory of NARC

“…it has indeed been a season of passion: of heightened emotions, anxieties, expectations, anger and

hunger, appointments and disappointments.” 4

27.       But it has also been a period in which the new government has had to learn the limitations to its power and authority. This is true of MoJCA in particular.

28.       After the election, Minister Murungi promised “radical surgery” for the judiciary, reflecting earlier calls for a ‘short sharp shock’ (made in a 2002 Commonwealth judges’ report) as well as deep-seated reform. The naming and shaming of 23 judges, 82 magistrates and 43 paralegal officers had “a profound effect on the administration of justice” and the system threatened to stop functioning. Calls for those named to stand down and obviate the need for tribunals “…began acquiring the look and feel of blackmail, or intimidation, or at last a campaign for forced resignations. Coming especially from the custodians of constitutionalism and human rights, this is not ideal.”5

29.       The ‘big bang’ approach to reform provoked a very strong counter-action, and had to be replaced with a more subtle approach.6 This important political and strategic lesson is reflected in GJLOS, the key reform instrument for the sector. It helps explain why GJLOS in its current form – the Short-term Priorities Programme (STPP) and workplans – focus overwhelmingly on delivery of infrastructure rather than detailing a reform agenda.

30.       The STPP and workplans comprise ‘low hanging fruit’ – easy but important victories that help diminish hostility, create allies, and prepare the ground for reform. This does not diminish the importance of the STPP, recalling an observation in the Kwach report that “[t]he independence of the judiciary is threatened more by financial anxiety than anything else.”7 In the words one senior MoJCA official, the STPP reflects the need to ‘walk a narrow path’ between political and reformist imperatives.8 But while this helps understand

4 Deya D.: “The Ringera Report on judicial corruption in Kenya: Which way forward for judicial reform?”

in Judicial Reform in Kenya, 1998-2003, edited by Ben Sihanya and Philip Kichana (Kenyan Section of

International Commission of Jurists, 2004).

5 Ibid.

6 Interview with Hon Minister Kiraitu Murungi.

7 Kwach Commission report, chapter 4.

8 Interview with Gichira Kibara, Director: Legal Services, MOJCA.

GJLOS Programme Review December 2004

7

the STPP, it also raises the stakes for the next phase of GJLOS, where sustainable

reformist interventions must be more evident.

31.       From the outset, GJLOS proved to be a strategic vehicle for the new Ministry, and has grown and developed in parallel with the Ministry. GJLOS allowed MoJCA to focus on institutional linkages, building alliances and sourcing much-needed resources. This had the effect of deflecting any ‘turf war’ that may have followed its creation. On the other hand, GJLOS is one among many priorities facing the new Ministry which had its own capacity and resource challenges. In spite of this, government leadership of GJLOS has grown steadily over time and is now firmly entrenched.

32.       The new Ministry and its reform vehicle, GJLOS, had to operate in an unreformed institutional context. The bureaucracy inherited by the new government was widely regarded as inept and corrupt. Mechanisms for delivery of services in the public sector generally and the Justice sector in particular were inefficient and ineffective, while corruption networks had deeply entrenched themselves inside government procurement systems.

Ethics, Integrity & Anti-Corruption

The Convenor of this Thematic group is the Director of the Kenya Anti- Corruption Commission (KACC). The sector wide priority for this thematic group is to ensure governance reforms including measures against anti-corruption are actually given the necessary impetus. According to various performance benchmarks such as Transparency International’s Annual Report, Kenya has shown improvement in eradicating corruption.

Already such measures as the enactment of the Anti-Corruption and Economic Crimes Act (2003) have been taken. TG1 will want to check on the implementation and operationalization of this legislation.

National Anti-Corruption Campaign Steering Committee[105]

 

Consistent with its pledge and commitment to realise in practical terms the ideals of

democratic governance, transparency, accountability and protection and promotion of

human rights, the Government of H.E. President Mwai Kibaki has identified the fight

against corruption, the effective and efficient administration of justice, safety and security

and the protection of property as one of its key pursuits. It is a universally recognised

phenomenon that corruption in third world countries, is principally fomented by the

government, and the private sector, therefore, THE FIGHT against corruption must

start both within government and in the private sector. The government.s

determination in this regard is to govern in a manner responsive to public needs and

expectations.

The Permanent Secretary, Governance and Ethics, and his Secretariat advise and assist

the President on the development, implementation, monitoring and strengthening of

holistic policies and strategies meant to fight corruption and improve accountability and

transparency in the conduct of national affairs. The department works closely with the

Ministry of Justice and Constitutional Affairs, the Kenya Anti-Corruption Commission, the

Director of Public Prosecutions, the CID, NSIS and the police.

The government has begun fighting corruption while the implementation of key reforms

in various sectors of the economy, including reconstruction of dilapidated infrastructure is

underway. The economic benefits of the fight against corruption can already be seen.

These include an increase in revenues, improved tax collection, a decrease in losses

from public works, a growth in customs receipts, enhanced investor confidence,

developing regional and international trade and the tentative resumption of donor aid.

The seven critical pillars of the Government.s plan are:

Leadership or political will. The willingness and ability of the national leadership

to be in the forefront of and to create an enabling environment for the fight

against corruption;

Transitional justice. Addressing past economic crimes that have manifestly led to

the impoverishment of the populace in a credible and systematic manner;

Legal Framework. Reviewing and reforming national laws and regulations in

order to tighten the loopholes that enable and facilitate corruption;

Institutions. Providing greater clarity to those institutions that implement the anticorruption

strategy;

Private Sector. Fully integrating the private sector within the government.s anticorruption

plan as a key stakeholder in the fight against corruption;

Civil Society. The plan considers Kenyan civil society the engine of activism and

the key to vigilance in the fight against corruption;

The International Community. Kenya.s anti-corruption plan contains numerous

elements developed in partnership with international development partners.

Since the beginning of the year, the Department of Governance and Ethics has

implemented or has participated in a range of measures to INSTITUTIONALISE the fight

against corruption. These are aimed at promoting greater effectivity, and adminstrative

transparency and accountability, in the conduct of national affairs. Some examples of

the initiative to institutionalise the fight against corruption are interalia:-

Cabinet Committee on Corruption

The Cabinet Committee on Corruption, is a creation of his excellency the President, and

, chaired by the Ministry of Justice and Constitutional Affairs, is composed of the Minister

of State for Provincial Administration and National Security; Minister of Finance; Minister

of Planning and National Development; Minister of Roads, Minister of Public Works and

Housing; and the Minister of Regional Development. The Permanent Secretary,

Governance and Ethics, acts as secretary to the Committee. The Committee actively

advises His Excellency the President on anti-corruption initiatives and on principles of

better governance and is overseeing the tracking of public money hidden in foreign

banks. Already, cabinet committee has been responsible for ensuring the Goldenberg

Commission, the Truth Justice and Reconciliation Commission, and the Land

Commission, are all up and running.

Public Complaints Unit

A Public Complaints Unit (PCU) that will serve as a central processing division is being

established under the aegis of the Department in conjunction with the Ministry of Justice

and Constitutional Affairs. Uniquely in Kenyan history, the PCU will serve as a focus for

public complaints to the Government. The PCU will, on a confidential basis, receive

complaints and allegations of corruption from members of the public and determine

whether such complaints/allegations disclose corrupt practice or abuse of office, liase

with the relevant office/department to which the allegations/complaints may be

addressed and provide the public with advice on appropriate modes of investigation and

redress. It is also expected that the PCU will serve to provide the government and the

public with analytical data on the state of corruption within public institutions.

Declaration of Assets and Wealth

 

The Department of Governance and Ethics, in conjunction with the Head of the Civil

Service and the Ministry of Justice and Constitutional Affairs, is actively involved in this

new initiative under the Public Officers Ethics Act 2003 whereby all public servants are

required to declare their wealth, assets and liabilities. A vast majority of public officers

have filled out and sent in their forms. Initial indications are of compliance rates in the

90% range. The removal from the payroll of those public officers that do not comply with

the regulations has already commenced.

Governance Dividend

The Department of Governance and Ethics actively pursues and promotes a

.governance dividend., namely, the demonstration of the achievements of the

government.s anti-corruption reform programme and the resultant translation of

improvements in the social and economic conditions of people. The government.s

policies have already had an important effect on investor.s perceptions of the investment

climate in Kenya by signalling a strong intention to reform. For example, the Feb. 2003

International  Country  Risk  Guide demonstrates that the majority of indicators of

institutional quality have improved, including corruption and law and order.

Governance, Justice, Law & Order Sector Reform Programme

The Department of Governance and Ethics participates in the GJLOS Programme, a

sector-wide development strategy based on the recognition of the interconnected nature

of the justice sector, the .corruption seepage. between its various components and the

need for contemporaneous reforms within the sector as a whole. The campaign

comprises representatives from the government, statutory commissions, public

institutions, the private sector, civil society and faith-led organisations and has resulted in

the creation of thematic groups in order to better address specific areas of concern. The

Department of Governance and Ethics coordinates and heads the Ethics, Integrity and

Anti-Corruption Thematic Group. Other thematic groups include: Democracy, Human

Rights and Rule of Law; Justice, Law and Order; Public Safety and Security;

Constitutional Development; Legal Services; and Leadership and Management.

Land Commission on Illegal and Irregular Allocation of Public Land

The Department of Governance and Ethics was represented on the Presidential

Commission inquiring into the illegal and irregular allocation of public land in Kenya. The

Commission examined how to right land wrongs committed since Kenya gained

independence in 1963. It has presented it.s report to the President, and the report

presents a very bold platform to start tackling the corruption problems that have

bedevilled our land tenure systems since independence.

National Anti-Corruption Campaign

The Department of Governance and Ethics is represented on the Steering Committee of

the National Anti-Corruption Campaign initiated to evolve a mature anti-corruption

culture and to ensure all stakeholders and citizens are effectively and meaningfully

involved in rooting out corruption. In view of the critical requirement that all sectors of

society are engaged in the fight against corruption, the Steering Committee of the NACC

comprises representatives from the government, statutory commissions, public

institutions, the private sector, civil society, national media associations, women.s

interest groups and all major Kenyan faith-led organisations. This nationwide campaign

looks to reinforce the progress made in enacting new legislation and establishing new

institutions. It is envisaged that the campaign will run for several years and will utilize

multiple communication and mobilization strategies. The Steering Committee has

therefore, through the publication of calls for Expressions of Interest in all major

newspapers in Kenya, invited eligible Agencies/Organisations to express their interest in

partnering with the Steering Committee in conceptualising, developing and implementing

the campaign.

LEGISLATIVE REFORMS

The Anti-Corruption & Economic Crimes Act, 2003

The Anti-Corruption & Economic Crimes Act,  2003 was signed into law on 2nd of May 2003, thereby enabling the Kenya Anti-Corruption Commission (KACC) to be established. For the first time in Kenya.s history the Act makes economic crimes actionable and is retrospective in its outlook. The salient features of the Act include provisions for restitution and recovery for unjust enrichment.

The Public Officer Ethics Act, 2003

The Public Officer Ethics Act, 2003 was signed into law on 2nd of May 2003 paving the

way for declarations of wealth by all Kenyan public servants. The Act also addresses

the critical area of Conflict of Interest for public servants and sets new standards of

service and professionalism for the entire government.

International Legislation

Kenya was the first country worldwide to ratify the United Nations Convention  against

Corruption, signing this landmark international treaty prior to all other signatories,

including the host country, Mexico. Kenya is also actively preparing to ratify the African

Union Convention on Corruption. With its ratification of such key regional and

international treaties, Kenya can now begin its transformation from the epitome of

corruption to being in the vanguard of anti-corruption reform.

SOCIAL PROGRAMMES

HIV/AIDS is at the top of the government.s development agenda. Governments with a

strong enough capacity to plan, implement and manage their strategies have been

shown to achieve the strongest successes against the epidemic. Special efforts are

therefore needed to strengthen accountability frameworks, managerial capacities and

monitoring, evaluation and budgeting systems. It is with this in mind that the

Department is crafting a .Good Governance and HIV/AIDS. Programme, designed to

disseminate awareness of the role of good governance in HIV/AIDS management and to

cultivate the partnership between government, the private sector and civil society

organizations in this respect.

ROLE OF THE PRIVATE SECTOR

The challenge for individuals and organizations is to play their role in fighting corruption

by INTERNALIZING the fight against corruption. It is only by internalizing the fight

against corruption that we can EXTERNALIZE the result, which must be the complete

abandonment of our old culture and history of corruption. We must change ourselves,

our families, and the way we live. Companies must embrace an anti-corruption culture in

their values, principles and best practices.

What role does anti- corruption play in the strategic plans of your company? What is the

status given to ethics management in your company? What specific ethical programs

does your company run? What ethical tools and principles do you use as a company in

evaluating your operations, programmes and practices?

This then is the challenge to the corporate sector. It must play it.s role in the fight to raise

the morality of our corporate national culture.

THE CHALLENGE

LeadershipXchange and it.s member companies, are challenged to play their role

in national development, asking not, in John Kennedy.s words ..what your

country can do for you but what you can do for your country.

Kenya is still a poor country with a Per Capita Income of about $300 dollars per person.

The fight against corruption must finally impact on this poverty, and this fight must

necessarily embrace both the government and the private sector working together hand

in hand to create greater prosperity, based on hard work and value creation, and devoid

of crippling corruption.

Investigation and Prosecution of Corruption and Economic Crimes

As I pointed out in the last Annual Report, the Commission continues to be the first port of call for Kenyans who are unhappy for one reason or another. Out of 7,888 reports of alleged corruption and economic crime brought to the Commission’s attention by Kenyans, during the reporting year, only 15% of them fell within the mandate of the Commission, thereby meriting further action by the Commission. There is a continuing need to address the bulk of complaints by the public through establishment of the Office of Ombudsman. A total of 84 investigation reports were forwarded by the Commission to the Hon. Attorney General. Seventy of these investigation reports which is 83% of the investigated cases, recommended prosecution of the suspects. Twelve reports this accounts to 14.3% of the investigated cases, recommended closure of the investigation files, while two files contained recommendations for administrative action rather than prosecution for criminal offences. The Hon. Attorney General agreed with 68 out of 70 of the Commission’s

recommendations to prosecute, representing a 97% degree of agreement with the Commission’s assessment on prosecution of offenders. This high concurrence ratio

attests to the professionalism and high quality of the investigations. It is remarkable that there are more than 190 corruption cases before various courts in Kenya today. This contrasts sharply with the often heard though misguided complaint that the Commission has not prosecuted any case of corruption at all, which is itself a fallacy as the Commission does not prosecute. In the civil courts, the Commission has 43 multi-million shilling lawsuits in various stages of Hearing.The subject matter of 18 of these lawsuits has a combined value of Ksh 87,188,678. The other lawsuits are for recovery of land whose estimated value is Ksh 1.5 Billion. On the implementation of the Ndung’u Report into the Illegal or Irregular allocation of public land, the Commission has so far issued more than 450 Demand Notices to concerned persons requiring surrender of the properties involved. Thirty-seven Title Deeds and eleven

Deed Plans totalling 223 acres and estimated value of Ksh 144 million have been recovered. The Commission has also filed and prosecuted 78 applications for warrants to investigate, seize and freeze funds held in bank accounts and suspected to be the

proceeds of corruption and economic crime. This is in exercise of the Commission’s powers to reach into and recover proceeds of corruption and economic crime. The Commission has often been criticized for laying too much emphasis on investigation and eventual prosecution of what are called ‘small fish’, that is, petty corruption, at the expense of the so-called ‘big fish’. Nothing could be further from the truth. The

overwhelming majority of Kenyans are disproportionately affected by what is derisively referred to as ‘petty’ corruption. This overlooks the fact that the public officers who drive ‘petty’ corruption are the face of the Government to many Kenyans. The perceptions of these Kenyans, as faithfully recorded in opinion polls, are a reflection of this fact. This is the reason why the Commission will continue to apply its policy of dealing with both ‘petty’ and ‘grand’ corruption without discrimination as to perceived value of the subject matter. Quick conclusion of the so-called Grand Corruption cases has been hampered by the countless opportunities for legal defence afforded by the laws of Kenya and the guarantees it gives to the due process of law. Further, there are capacity constraints in both the Office of the Attorney General and the Judiciary. It is however heartening to note that both constraints are being addressed. The Chief Justice has promulgated new rules of procedure in constitutional matters which will facilitate expeditious hearing of constitutional references. He has also expanded the territorial jurisdiction of several special magistrates. For his part, the Attorney General has moved to recruit more State Counsels and authority has been given to his office to  recruit 26 special prosecutors to deal with corruption cases.

Public Education and Corruption Preventive Services

Under the auspices of the Public Service Integrity Program, the Commission has reached 11,830 public sector employees to date. Sensitization of public officers on corruption and on how to stem and address the scourge in ministries and government departments continues in all eight provinces of Kenya. The Commission has also undertaken three one-month structured training courses involving 96 Senior public officers under the Training, Research, Advocacy and Governance programme (TRAG). One hundred and forty three institution-based resource persons have also been trained under the Training of Trainers programme that began early in the year 2004. These intensive training programmes are designed with a focus on transfer of

skills and learning in the mainstream public service on how to combat and prevent continued proliferation of opportunities for corruption and economic crime. A total of 351 integrity assurance officers from 50 public institutions have also been trained by the Commission. They form the bedrock of corruption prevention committees in various public institutions, and are a necessary and effective vicarious representation of the Commission in the public sector. The Commission has also participated in high-volume forums such as annual agricultural shows and the Nairobi International Trade Fair. Since 2005, the Commission has sensitized 42,831 people and distributed 44,500 assorted educational materials on corruption to members of the public. To address the need for anti-corruption course content in the education curriculum and in the schools system, the Commission sponsored the Kenya Drama Festiv l’s

anti-corruption theme which attracted many competing entries. Significantly, in 2005 Kenya Certificate of Secondary Education (KCSE) English Literature examination paper, there were compulsory questions  hat tested the student’s knowledge of ethics and anticorruption.Kenyans will no doubt have seen, heard or read an anticorruption

message in the media. The high level of outreach and public communication has had

tremendous effect on enlisting public support in the war on corruption. Kenyans can expect more varied and sector-specific anti-corruption content in the Commission’s public education and corruption prevention activities in the coming year. To address systemic corruption, and working with concerned institutions to close corruption-facilitating loopholes, the Commission conducted in-depth examinations and corruption risk assessments on the Nairobi City Council and the Department of Immigration in the period under review.The Commission  also continued to monitor implementation of the recommendations of the two examinations conducted in year 2005 on the registration and licensing of motor vehicles and enforcement of traffic laws for the Ministry of Transport, the Kenya Revenue Authority and the Kenya Police, and also on the Ministry of Immigration and Registration of Persons. Some of the recommended changes have already been implemented, such as the application of an improved revenue and car-tracking system by the Kenya Revenue Authority.

Press and Media Reports Analysis

 

Githongo, Maathai win ‘Firimbi’ Awards in KNCHR Event Supported by GJLOS[106]

Former Ethics and Governance permanent secretary John Githongo was yesterday named the winner of Firimbi(Whistle Blower) Award given by the Kenya National Commission on Human Rights for exposing the Anglo-Leasing scandals.

Nobel laureate Wangari Maathai also scooped the Lifetime Achievement Award during yesterday’s Third Annual Human Rights and Democracy Awards (2006) ceremony in Nairobi. She shared the award with Fr John Kaiser, who was honoured posthumously.

Religious station Radio Waumini’s Magdalene Kasuku bagged the Utangazaji (Electronic Media) Award while journalist Cyrus Kinyungu took the print award.

However, no one took the Waziri (Cabinet) Award as the government owned human rights watchdog said “No Cabinet Minister deserved” it. In 2003 the award went to Vice-President Moody Awori for reforming the Prisons Department and in 2004 to Cabinet Minister John Michuki for transforming the transport industry.

Also not presented was the Utumishi Award as no police station in the country met the criteria.

Last year, the Whistle Blower award which Mr Githongo co-won with Mr Davinder Lamba of Mazingira Institute, went to sacked Central Bank of Kenya employee David Munyekei and a Meru doctor.

Other awards given last evening were Umma (Public Body) Award to the Electoral Commission of Kenya, Jitolee (Business) Award (Safaricom), Urekebishaji’ (Prisons) Award to Prisons Services, Utetezi (Civil Society) Award (Gender Violence Recovery Centre at Nairobi Women’s Hospital) and Mashinani (Community Based Organisation) Award (Naivasha Disadvantaged Support

Lobbies target Ringera[107]
 The umbrella agency for NGOs yesterday called for a tribunal to be formed to investigate the work of the anti-corruption watchdog and its director. The National Council of NGOs and the Council of Community-Based Organisations accused Kenya Anti-Corruption Commission boss Aaron Ringera of politicising the fight against graft.

The NGO council, led by Ms Orie Rogo-Manduli, and CBO council, under secretary-general Mukami Munene, also want annual performance targets set for future anti-graft officials to justify the commission’s existence.

It was felt, they argued, that the commission was being used to play political and ethnic wars based on the fate of cases it wanted prosecuted.

In a joint statement read at the Council of CBOs offices at Hazina Towers in Nairobi, the two umbrella organisations said the commission’s integrity and ability to fight corruption had been cast in doubt.

“KACC’s competence in the fight against sleaze has been brought under scrutiny in the public domain and has been found wanting.

Political prosecution

“We have evidence that would reiterate the fact that the current trends of political prosecutions that it has been pushing are ethnicised regional agendas awash with insincere political motives,” said Ms Manduli.

The two councils also took issue with the recent push by the commission to have Kenya Pipeline Company chief executive George Okungu sacked.

They asked Mr Justice Ringera to personally apologise for the “embarrassment he caused him”.

Mr Okungu’s case went further to illustrate the fact that the commission was not focused on its mandate but was only seeking to “eliminate some people from the system and replace them with their cronies,” said Ms Munene.

The commission, investigating Mr Okungu over a Sh500 million compensation suit with a private company, wrote to civil service chief Francis Muthaura asking that Mr Okungu be suspended to pave the way for investigations.

But the pipeline company board has defended Mr Okungu over allegations of abuse of office.

Energy permanent secretary Patrick Nyoike and assistant minister Mwangi Kiunjuri have also defended Mr Okungu

Be careful on proposal to grant amnesty to looters[108]

Debate is going on as to whether those who looted public resources during the past and current administrations should be given amnesty if they return what they stole. 

Gachoka MP Joseph Nyagah was the first one to come up with the suggestion. Then Justice and Constitutional Affairs minister Martha Karua followed suit. Some religious leaders have also supported the proposal. 

It is a good thing if all those who have engaged in corruption would agree to give back to Kenyans what they stole. The amount stolen is huge enough to turn around the lives of millions of Kenyans wallowing in unspeakable poverty.

But if the amnesty is to be workable, a watertight mechanism has to be designed. It should not be assumed that once the word amnesty is mentioned, anybody who has stolen will wriggle out of their hideout. It is not as easy as that.

For amnesty to be successful, the Government must first investigate thoroughly to establish who the culprits are. And they should not only target those opposed to the current government. Once the investigations are complete, the options of amnesty or prosecution should then be put on the table. 

Those who choose the amnesty way must return the whole loot.

We must be careful not to set a dangerous precedent. In fact, it might encourage the corrupt to redouble their insidious efforts knowing that an amnesty will be extended to them in future, by which time they will have generated earnings from whatever they will have stolen. 

A blanket amnesty may give the impression that the Government has failed to slay the dragon of corruption. This will encourage the old looters and also attract new ones. 

No talks on dubious deals, says AG[109]

The attorney-general has denied lobbying to have billions of shillings released by the Government for Anglo Leasing-type contracts.

Yesterday, Mr Amos Wako described as falsehoods reports by a London publication that he, together with British law firm Freshfields, which represents the Government, had been holding discussions with companies involved in the deals.
But he admitted that a special audit by the auditor-general had identified eight projects which had been 60 per cent completed and two others which appeared to be in progress.

“Consequently, it is vital that a proper valuation be undertaken to show the true value of the work done and equipment supplied,” Mr Wako said.

He said it was necessary that a team of experts “renowned and well versed” in naval ships, defence contracts, security communication and information technology was appointed to undertake the evaluations.

The Treasury, he said, had identified nine such firms which had been invited to tender for the valuation of the security-related projects.

He said that once a firm was selected, the Government would find a strategy to be followed in each project, “taking into account the valuation reports of the Kenya Anti-Corruption Commission.”

Africa Confidential had reported that the discussions “are edging towards a compromise under which a new evaluation team will be appointed to establish a fair market for the projects.”

Five main security projects with a combined value of Sh17.316 billion are going on. And the Government has spent Sh4.139 billion, leaving a balance of Sh12.9 billion, the figure reportedly likely to be the subject of the discussions.

But Mr Wako said he had not instructed the London law firm to enter into such negotiations with the Anglo Leasing-type companies.

“The firm instructions given are to strenuously defend such cases to the best of their ability,” he said. “The advocates are coordinating with the attorney-general. The cases are in capable and experienced hands.”

The paper had reported that the money would be released once the Government and the “contractors” agreed on the prices. 

One of the the companies is Nedemar and Associates, which is reported to have built the secretive Project Nexus (defence command centre in Nairobi’s Karen neighbourhood). 

It is associated with another secret project, the National Counter-Terrorism Control Centre. Also named by the paper is Ciara Systems Inc.

Nedemar at one time sought to sell the Kenyan embassy in the Netherlands and has filed proceedings against the Government. The case in which the Dutch firm seeks to attach the mission is pending at the International Court in The Hague.

Conclusion Summary[110]

The Challenges of Reducing Corruption in a Changing Environment:

 The Case of Kenya World Bank/ EC Core Course on Transparency International –

Kenya May 25 2004[111] 

  • National Rainbow Coalition (NARC) comes to power on anti on anti-corruption platform under Pres. Mwai Kibaki corruption platform under Pres. Mwai Kibaki 2003, taking over from kleptocratic regime of Daniel arap Moi (1978 /2002)
  • Transition facilitated by tenuous last Transition facilitated by tenuous last-minute political minute political compromise between opposition parties compromise between opposition parties’ coalition and coalition and defectors from former ruling party KANU. Important role played by external pressure for anti Important role played by external pressure for anti – corruption reform (international community corruption reform – IMF/WB IMF/WB aid freeze from ‘93) Anti Anti-Corruption placed at top of GoK agenda from 2003 Costs of Corruption?
  • May 2004 President reports 3 individuals possess KShs. 78 billion in illicit assets abroad KShs.

December 2003 USD I billion discovered in accountsUK

analysis of Controller and Auditor General  Reports for FY1995/1996 and FY 1996/1997: between 1990 – 1997 GoK lost total KShs. 475 billion (USD 60 billion) through corruption , laxity, unaccounted for imprests,etc.

Goldenberg scam reportedly cost Kenya at least USD 600 million or 10% of our GDP Some Factors facilitating Corruption  in Kenya

  • Weak and unaccountable enforcement institutions
  • Poor design of oversight and monitoring institutions
  • Gaps in procurement integrity
  • The need to service patronage networks in politics
  • Lack of protection for whistleblowers
  • Lack of freedom of access to information
  • Weak political commitment to fight against corruption
  • Excessive bureaucracy and over-regulation
  • Stark disparities in income?
  • Scarcity of services

The Seven Critical Pillars of the Government Anti-Corruption Plan

  • Leadership/Political Will
  • Dealing with the Past (Transitional Justice)
  • Institutional Reform
  • Legal Reforms
  • Private sector
  • Civil society
  • International community

 

 Economic Recovery Strategy (ERS) for Wealth and Employment Creation, June 2003

  • Framework which aims at implementing NARC electoral promises and accords priority to restoration of accountability and integrity in management of public resources and administration of justice
  • Accelerating Public Sector Reforms: civil service, local authorities; public enterprises; financial planning and budget reform,
  • Institutional reform (Ministry of Justice and Constitutional Affairs etc.)

Economic Recovery Strategy

Reforms (contd.)

  • New Legislation starting with key acts, Public Officer Ethics Act (POEA), Anti-Corruption and Economic Crimes Act (ACEC) to be followed by laws relating toaccountability in public finance management
  • Prosecution of corrupt public officials
  • Establishment of task forces to review past abuses
  • Continuation and completion of constitutional review process towards early establishment of new Constitution
  • Creation of Office of Ombudsmann
  • Provisions relating to Security and Police Reform
  • Provisions relating to rule of Law and Judicial Reform

III.       Reforms instituted under ERS (contd.)

     i. Committee of Inquiry in to Corruption in the Judiciary

     ii. Judicial Service Commission gazettes Judicial Code of Conduct and Ethics under POEA (wealth declarations)

iii. New Chief Justice and senior personnel at office of Attorney General

     iv. Strengthening of Law Review Commission with new commissioners

     v. Modernisation of administration of registries, Recruitment staff, facilitation of alternative dispute resolution mechanisms, facilitation of commercial dispute resolution

  • Provisions relating to Prison Services Reform, Governance Justice Law and Order Sector Reform Programme (GJLOS)
  • Within framework of Public Sector Reform (PSR), GJLOS seeks to increase resource allocation to the sector under Medium Term Expenditure Framework
  • Builds on and aligns with new government’s policy series of attempts to introduce reforms in legal sector series reaching back to establishment of Law Reform Commission, 1982, and expands efforts initiated under MoJCA (strategic plan)
  • Seeks to institute a Sector wide approach to problems of legal sector bringing together all key stakeholders of legal sector, civil society, private in sector, implementing agencies, civil society, private sector, donors

Dealing with Past Abuses Dealing with Past Abuses

  • Goldenberg Commission  – drawing to a close
  • Task force on Truth Reconciliation and Justice submitted report on 15.10.03
  • Task force on Harambees (Kenyan style public collections) –submitted report November 2003
  • Task force on “Pending Bills”
  • Commission of Inquiry into Illegal and Irregular
  • Assets recovery
  • Restitution Institutional Reform -Effective and Independent Governance Institutions
  • Creation of Ministry of Justice and Constitutional Affairs(MoJCA) to lead anti -corruption fight (mandate: legal policy, policy on corruption fight administration of justice, constitutional matters, law reform, a administration of justice, constitutional matters, law reform, anti-corruption strategies, integrity and ethics)
  • Cabinet Committee on Corruption meets fortnightly
  • KACC (Kenya Anti-Corruption Commission) anchored in ACEC- not yet fully operative, no substantive director
  • Public Complaints Office (MoJCA/G&E) –precursor to Ombudsman expected under new Constitution
  • PS for Governance and Ethics (G&E) created in Office of President (mandate to advise and assist President on development, implementation, monitoring and strengthening of policies and strategies in the fight against corruption) Legal Framework of fight Against Corruption
  • Public Officer Ethics Act 17.04.03 (assets and liabilities declarations, limits on gifts, Codes of Ethics, banning of conflict of interest)
  • Anti Anti-Corruption and Economic Crimes Act, 17.04.03(broad definition of corruption, establishment of Kenya Anti-Corruption Commission)
  • Legislation to regulate management of Public Finances and  Procurement:

Allocation of Land

i.   i. Public Procurement and Disposal of Assets Bill

ii.  ii. Privatisation Bill

iii.  iii. Public Finance Management Act, May 2004

  1. iv. Public Audit Act
  2.  

Legislative Reform  -Challenges

  • Pace of reform hostage to parliamentary calendar(2003 from Jan – Nov. 3 bills enacted POEA,ACEC and the Constituencies Development Fund Act 2003)
  • Contentious and inconclusive constitutional reform process acted as block to progress of legislative process
  • Obstructionist tactics of opposition for various reasons (Opposition weak and underdeveloped;role of MP; law projects seen as “donor driven” e.g. Privatisation Bill,self-protection Bill, lack of executive cultivation of parliamentary support etc.)
  • Judicial reform identified as priority –  judiciary key institution in fight against corruption
  • Kenyan Judiciary notoriously corrupt, repressive and subservient to Executive (Kwach Report 1998, Advisory Panel of Eminent Commonwealth Judicial Experts Report, May 2002)
  • “Radical surgery of the Judiciary (Ringera Report, September 2003)
  • Personnel purge 2003 – 23 judges, 82 magistrates, 43 paralegal and retired officers named, shamed and retired
  • Shortcomings- unconstitutional involvement of politicians in the appointment of new judges,
  • lack of transparency of criteria used appointment of new judges,
  • concentration on personnel change rather than structural and institutional reform
  • CPI, October 2003 score unchanged (basis: 7 Surveys, 3 published  2003)
  • TI-Kenya Opinion poll (September 2003): 80% of Kenyans agreed or completely agreed that GoK was committed to fight against corruption
  •  TI-Kenya Kenya’s Bribery Index 2003, 2004 – significant improvement in petty corruption
  • US Millennium Challenge Account (Kenya fails US Millennium Challenge Accounts – base years 2002-2003)
  • President Kibaki African winner of the Financial Times Business MagazinePersonality of the year award 2004.

Judicial Reform Judicial Reform

 Some Indicators of Government Performance

 


[1] Adopted from the National Anti-Corruption Plan, Launched on 5th July, 2006

[2] Planning and National Development minister, Kenya-BBC news 23rd 2003

[3] ADOPTED FROM: TRANSPARENCY INTERNATIONAL GLOBAL CORRUPTION REPORT, 2006; http://www.transparency.org/publications/gcr

[4] The directors of the KACC were appointed in September 2004 and its staff in February 2005; see Global Corruption Report 2005.

[5] The Standard (Kenya), 8 February 2005.

[6] The Standard (Kenya), 19 February 2005.

[7] BBC News (UK), 3 February 2005.

[8] Report of the Commission of Inquiry into Illegal and Irregular Allocation of Public Land (Nairobi: Government Printer, 2004).

[9] The Standard (Kenya), 16 July 2005.

[10] For more details, see Global Corruption Report 2005, and http://news.bbc.co.uk/2/hi/

africa/4025375.stm

[11] Daily Nation (Kenya), 17 February 2005.

[12] International Commission of Jurists, Kenya: Judicial Independence, Corruption and Reform, April 2005, available at www.icj.org/IMG/pdf/kenyareport.pdf

[13] The People (Kenya), 8 July 2005.

[14] Daily Nation (Kenya), 10 August 2005.

[15] The fieldwork for the Global Corruption Barometer 2004 was conducted between July and

September 2004.

[16] Nationmedia.com, Posted on Wednesday, July 05, 2006

 

[17] CORRUPTION AND ANTI-CORRUPTION STRATEGIES: ISSUES AND CASE STUDIES FROM DEVELOPING COUNTRIES  HYPERLINK “http://magnet.undp.org/Docs/efa/corruption/Chapter03.pdf

[18] Sunday Times (South Africa), 1 August 2004.

[19] Mail and Guardian (South Africa), 28 January 2005.

[20] Mail and Guardian (South Africa), 18 March 2005.

[21] Mail and Guardian (South Africa), 4 March 2005.

[22] Mail and Guardian (South Africa), 18 March 2005.

[23] Sunday Times (South Africa), 24 August 2003.

[24] The Witness (South Africa), 29 June 2005.

[25] Mail and Guardian (South Africa), 26 November 2004.

[26] Government of South Africa, ‘Joint Investigation Report into the Strategic Defence

[27] Procurement Packages’, November 2001.

[28] Pretoria News (South Africa), 31 March 2005.

[29] Business Day (South Africa), 15 March 2005.

[30] www.iafrica.com/news/sa/237039.htm

[31] www.armsdeal-vpo.co.za/articles07/pickle.html

[32] . www.info.gov.za/speeches//1999/9911091035a1017.htm

[33] www.info.gov.za.speeches/2004/04080408151007.htm

[34] New Vision (Uganda), 24 September 2003.

[35] The Monitor (Uganda), 2 June 2004.

[36] The Monitor (Uganda), 1 June 2004

[37] Article 227 of the 1995 constitution

[38] New Vision (Uganda), 17 August 2004.

[39] The Monitor (Uganda), 4 September 2004.

[40] Country reports 264, Charles Mubbale and Paul Onapa (TI Uganda)

[41] http://magnet.undp.org/Docs/efa/corruption/Chapter03.pdf, TRANSPARENCY INTERNATIONAL

[42] Performance contract, State Law Office

[43] KACC website, Concluded criminal cases

[44] Friday, March 3rd 2006, standard Newspaper, CJ defends new court rules By Beatrice Obwocha

[45] Kenya Allafrica.com 19/3/2005

[46] Transparency International PART 2 REFORMING THE KENYAN JUDICIARY, Chapter 4: Administrative and institutional reforms in the Judiciary since 2000 By Kamotho Waiganjo

[47] This and related reform initiatives are discussed by Don Deya (Chapter 5) and others in this

volume.

[48] A report by the Kenyan Section of the International Commission of Jurists titled The Judiciary

in Review 2000-2002 notes that despite the recommendation, the fate of the draft code remains

unknown outside the Judiciary. See ICJ, The Judiciary in Review 2000-2002, Kenyan Section of

ICJ, Nairobi, 2003.

[49] The pay hikes saw the CJ’s salary increased to Kshs. 532,000; that of judges to between Kshs.

215,000 and 278,000; and the best paid magistrate getting Kshs. 85,000.

[50] These included amending Section 61 of the Constitution to require judicial appointees to

have at least 10 years experience in legal practice; recommendation by the LSK and Advocates

Complaints Commission in the case of practising advocates appointed to the Judiciary; and

appointments to district magistracy be phased with only Resident Magistrates with five years

experience in practice.

[51] Chunga had responded in 2002: “Experts on what, for what and about what?” This was widely publicized by the media as Chunga fought the political war that culminated in his ignominious resignation in February 2003

[52] The panelists comprised legal luminaries like Justice George Kanyeihamba (Supreme Court of Uganda); Justice Damian Z. Lubuva (Court of Appeal of Tanzania); Justice Yvonne Mokgoro (Court of Appeal for Ontario, Canada); Prof. Ed Ratushny, QC (University of Ottawa, Canada).

[53]  The other specific terms of reference were recommendations of the jurisdiction of the Kadhi’s courts; procedure for the appointment, discipline and dismissal of judges; appointment, tenure and functions of the Attorney General; backlog of cases and improvements to court facilities.

[54] In the Matter of Professor Yash Pal Ghai, Chairman Constitution of Kenya Review Commission, the Constitution of Kenya Review Commission, and the National Constitutional   Process ex parte Mr. Justice Moijo ole Keiuwa and Mr. Justice Vitalis Odero Juma, High Court Miscellaneous Civil Application No. 1110 of 2002.

[55] Tom O. K’Opere, John M. Njongoro v. Constitution of Kenya Review Commission, High Court Misc. Civil Application No. 994 of 2002.

[56] Supra note 2.

[57] Chapter 5:  By Donald Deya

[58] The Judges appointed to the High Court were: Ms. Joyce Khaminwa, Ms. Hannah Okwengu, Ms. Martha Karambu Koome, Mr. Benjamin Patrick Kubo, Prof. Onesmus Mutungi, Mr. Leonard Njagi, Mr. G. B. M. Kariuki and Mr. Mohammed Khadhar Ibrahim.

[59] The Judges elevated to the Court of Appeal were: Hon. Phillip Nyamu Waki and Hon.

Erastus Mwaniki Githinji.

[60] The full and formal title of the Report is An Anatomy of Corruption in the Kenyan Judiciary:

[61] Page 41 of the Panel Report.

[62] Ibid.

[63] 1st December 2003.

[64] This is the Committee on the Administration of Justice and Legal Affairs – Ed.

[65] Cf. Muciimi Mbaka’s contribution (Chapter 3) in this volume in which he argues the criteria

included ethnic and regional diversity.

[66] This was at the ICJ’s Open Forum held on 23rd October 2003 at the Stanley Hotel to discuss the way forward for the Judiciary and the administration of justice after the Ringera Report.

[67] The Ringera Report, at 52

[68] JUDICIARY WATCH REPORT – Judicial Reform in Kenya, 1/2005 By David Shikomera Majanja,

[69] JEREMY POPE et al, The role of a National Integrity System in fighting Corruption” found at http://www.worldbank.org

[70] REPUBLIC OF KENYA, Report of the Parliamentary Anti-Corruption Select Committee (May

2000), Vol 1, pp 31-62

[71] Section 77 of the constitution

[72] Section 77 of the constitution

[73] For example conspiracy to defraud, false accounting by a public officer and fraudulent false

accounting by clerk or servant.

[74] The case of Republic Vs Kettan Somaia & Anor

[75] The case of Republic Vs Margaret Gachara & Anor.

[76] See Sections 54 and 55 of the Anti-Corruption and Economic Crimes Act.

[77] JUDICIARY WATCH REPORT – Judicial Reform in Kenya, 1/2005 97

[78] Section 12 of the Act

[79] Section 29 of the Act

[80] Section 32 of the Act

[81] Section 31 of the Act

[82] Section 55 (2) of the Act

[83] Section 56 of the Act

[84] See JEREMY POPE/TRANSPARENCY INTERNATIONAL, The Need for, and role of, an

Independent Ant-corruption Agency found at http://www.transparency.org/working-papers

[85] Sections 15, 35, and 36 of the Act

[86] Section 25 of the Act

[87] Section 64(4)

[88] Section 13 of the Act

[89] Section 14 of the Act

[90] Section 48 of the Act

[91] Ibid

[92] Section 51 of the Act

[93] Section 53 of the Act

[94] Section 55 of the Act

[95] Section 62, 63 and 64 of the Act

[96] Section 10 of the Act

[97] Section 13 of the Act

[98] MARK. W. JANIS; An Introduction to International Law, (Little, Brown and Company, Boston

1988) at p.244-245.

[99] 284 U.S. 421 (1932)

[100] This brings to mind the recent agonizing newspaper story of the Kenyan who blew the whistle

on the Goldenberg scandal. He lost his job and has never found employment ever since.

[101] There is now an Anti-Corruption Convention that represents the new effort by states to fight

the vice that has crossed borders.

[102] See generally Maema, L.F. Prosecuting Corruption in Lesotho, a paper presented at the 11th

International Anti-Corruption Conference in Seoul, Republic of Korea, 25-28 May 2003.

http://www.11iacc.org/download/add/ws4.21ws4.2pi.maema.doc last accessed on July 9, 2005

[103] Section 3(1) of the Prevention of Corruption and Economic Crimes Act 1999. The Act can be

obtained at the Transparency International Library, Nairobi.

[104] 2005/6 Report

[105] DEPARTMENT OF GOVERNANCE & ETHICS OFFICE OF THE PRESIDENT BACKGROUND NOTES TO SPEECH DELIVERED TO THE LEADERSHIP X CHANGE FORUM BY LAW & POLICY ADVISOR LAWRENCE AGAYI OROWE ON THE 26TH AUGUST 2004 CORRUPTION: THE ROLE OF GOVERNMENT IN THE ANTI-CORRUPTION FIGHT AS OPPOSED TO THE ROLE OF INDIVIDUALS AND ORGANIZATIONS.

[106] Story by SUNDAY NATION Reporter, Publication Date: 02/19/2006

[107] Story by MICHAEL MUGWANG’A, Publication Date: 11/01/2006

[108] Publication Date: 10/31/2006, nationmedia.com, JOHN K. CHERUIYOT, Nairobi.

[109] Story by MUGO NJERU, Publication Date: 11/01/2006

[110] Strategic Plan 2004/5 – 2006/7, Nairobi 27, Jan 2005

[111] Department of Governance and Ethics in partnership with Ministry of Justice and Constitutional Affairs

Anti-Corruption War In Kenya

September 24, 2010

 

RESEARCH REPORT ON:

 

 

 

 THE ANTI-CORRUPTION AGENCIES AND STRATEGIES

 

 

BY

 

 

 

 

PAUL O. OGENDI

 

SCHOOL OF LAW

 

UNIVERSITY OF NAIROBI

 

 

 

 

 

May 19, 2006

Table of contents                                                           

 

i. Introduction

 

ii. Review of the laws or instruments establishing the various Anti-Corruption agencies

 

1.1  Ministry of Justice and Constitutional Affairs (MOJCA)

1.2  Judiciary (Anti-corruption Courts/Special Magistrates)

1.3  Office of the Attorney General/ Director of Public Prosecution

1.4  Kenya Anti-Corruption Commission (KACC)

1.5  National Anti-Corruption Steering Committees (NACSC)

1.6  Ministry of Finance

 

iii. Review of the various Anti-Corruption Strategies and the policies behind the various strategies

2.1 Investigations

2.2 Prosecutions

2.3 Preventions

2.4 Public Awareness

2.5 Asset Recovery

2.6 Enforcement of Morals

 

 

iv. Review of the Strategic plan and Work plans, Reports, Literature of the agencies in the Kenyan Gazette, the Dailies, Institutional Publications and others of the named Anti-Corruption Agencies

3.1  Ministry of Justice and Constitutional Affairs (MOJCA)

3.2  Judiciary (Anti-corruption Courts/Special Magistrates)

3.3  Office of the Attorney General/ Director of Public Prosecution

3.4  Kenya Anti-Corruption Commission (KACC)

3.5  National Anti-Corruption Steering Committees (NACSC)

3.6  Ministry of Finance

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ACKNOWLEDGEMENTS

 

I TAKE THIS CHANCE TO SHOWER IMMENSE GRATITUDE TO MY FRIENDS, COMRADES AND FELLOW CLASSMATES;

1. WILLIAM ONYORE G34/     /05

2. IDELQUIN WAFULA G34/     /05

WHOM I ENGAGED IN THE RESEARCH PROCESS AT DIFFERENT LEVELS .

THANK YOU GUYS.

  1. Introduction

 

The GOK has declared total was against corruption and placed the fight against corruption at the number one on its priority list. It has called on all Permanent Secretaries, Heads of Departments and Chief Executives of Parastatals and Local Authorities to place fighting corruption on the number one on the priority list of programmes, plans, projects and activities. The govt recognizes the crucial catalytic role of efficient public service integrity programmes. The GOK has initiated a nationwide campaign to evolve an anti-corruption culture ad to ensure all stakeholders and citizens are effectively and meaningfully involved in rooting out corruption.

Some legislative reforms have also taken position in the fight. The Government Financial Bill: This is a proposed law to provide for the Management of govt. financial affairs, make certain provisions with respect to the Exchequer account and consolidated fund and provide for persons (minister of finance and others) to be responsible for government resources. The Public Procurement and Disposal of Asset Bill (2003): proposes to address some weaknesses in public procurement. In recognition of the weakness in financial control and auditing to governance has enacted the public audit bill (2003). The Public Officers Ethics Act (2003) is a law to advance the ethics of public officers by providing for a code of ethics for public officers including members of parliament, the executives and the judiciary. It also controls wealth declaration.

However the govt. seriousness manifested itself by enacting the Anti-Corruption and Economic Crimes Act (2003): part 3 establishes and explains the Kenya Anti-Corruption Commission and Advisory Board and the Kenya Advisory Board. The commission and the directors in it are not subject to the direction or control of any other person, body, or authority in the performance of their functions. This guarantees the commission and the directors independence and enables them to operate without fear or favor and without any interference in dealing specifically in corruption issues. By virtues being established by an act of parliament it has a permanent existence and thus works with other agencies to achieve their goals.

The earlier agencies formed to fight against corruption are the Police Anti-corruption squad (1991), The Kenya Anti-corruption Authority (1997) and the Kenya Anti-

corruption Police Unit (2001). Currently under section 12 of the Act the bodies that the commission may cooperate with include the controller and auditor general, the director of criminal investigation dept. CID, police, efficiency monitoring unit (EMU), the attorney general’s office, the judiciary, parliament, Dept. of governance and ethics and the National Ant-corruption campaign Steering Committee

ii. GOVERNMENT OF KENYA’S COMPREHENSIVE ANTICORRUPTION STRATEGY ACTION PLAN FOR APRIL 2005- JUNE 2006.  

                         This Annex identifies specific time-bound actions that the Government of Kenya plans to implement during April 2004 – June 2006 in the following five areas that constitute the pillars of the comprehensive anticorruption strategy it has pursued since 2003.

(a)    Enactment of the necessary legislation to establish a legislative platform on which to anchor the war on corruption.

(b)   Vigorous enforcement of anti-corruption laws through investigation of offences of corruption and economic crimes as well as recovery of corruptly acquired property.

(c)    Identification and sealing of corruption loopholes through institution of effective public sector management controls.

(d)   National public education aimed at stigmatizing corruption and inducing behavioral change.

(e)  Implementing macroeconomic and structural reforms to reduce the incidence and demand for corruption by scaling down the role of the public sector and bureaucracy.

 

  1. i.                   Review of the laws or instruments establishing the various Anti-Corruption agencies.

 

1.1  Ministry of Justice and Constitutional Affairs (MoJCA)

a. Establishment

       Subject to section 24 of the Constitution of Kenya and any other laws, the powers of constituting and abolishing offices for the republic of Kenya shall vest in the president. The offices of Ministers of the Government of Kenya may be established by Parliament or, subject to any provisions made by Parliament, by the President under section 16[1] of the Constitution of Kenya.

         The Ministry of Justice and Constitutional Affairs was created on the 14th of January, 2003 through the Presidential Circular No. 1/2003.This is the 3rd time in independent Kenya that the Ministry of Justice and Constitutional Affairs has been created in the organisation of the Government. The first time was in 1964 but was dropped in the next reorganization. It was recreated in 1978 and dropped again in the next reorganization of Government Ministries in 1983.

b. Mandate

MoJCA has the mandate of dealing with governance issues in relation to corruption, which includes handling the national framework and structure, as well as institutions charged with improving governance. MoJCA’ primary responsibility is to articulate strategies on corruption at the national level. The ministry is also spearheading the GLJOS programme, which aims at reforming public institutions working the Governance, Justice, Law and Order Sector, to perform their roles differently, efficiently and better, including reducing corruption. The MoJCA also has the following mandate:

(a)    Receiving and submitting the list of the candidates short-listed by the Advisory Board for the posts of Director and assistant Director of KACC to the National Assembly for approval and subsequent appointment by the president.

(b)   Promulgation of Regulations e.g. the Anti- Corruption and Economic Crimes Regulations,2003 [made under section 68 of the Anti- Corruption and Economic Crimes Act, 2003.

(c)    To offer political back up to the fight against corruption. To operate effectively, any anti-corruption agency must have committed political backing at the highest levels of Government.

(d)   To make regulations under the Public Officer Ethics Regulations, 2003.

 

 

1.2  Judiciary (Anti-Corruption Courts/Special Magistrates)

 

The role and the responsibility of the judiciary is the enforcement of anti-corruption laws through the speedy and fair trial of those charged with corruption and related offences and to order appropriate punishment in accordance with the relevant legal provisions in respect of those found guilty and thus to demonstrate that corruption does not pay. The judiciary in civil cases is to ensure fair and speedy disposal of suits so that the parties are left with no temptation to circumvent the due process of justice as a result of delay in accessing justice.

Under the penal code, the Anti-corruption and Economic Crimes Act of 2003, and several other provision the judiciary has a responsibility of not only trying and determining cases of corruption and related offences but also ordering the forfeiture and recovery of corruptly acquired benefits where a conviction has been entered against any person charged with such offences (section 55 and 56 of the Anti-corruption and Economic Crimes Act) The judiciary establishes the Anti-Corruption courts. There is a legislative proposal to enhance the jurisdiction of Special Magistrates and empower the High Court to appoint a receiver of property that is suspected to be corruptly acquired as per the Anti-Corruption and Economic Crimes Act, 2003.[1]

 

 

a.    Special Magistrates Courts.

 

 Under s. 3 of the anticorruption and economic crimes act the J.S.C. is empowered to appoint special magistrates to try corruption offences and economic crimes. The main

 purpose for establishing special magistrate courts was to speedily try and punish offenders guilty of corruption offences and economic crimes and to ease the backlog of cases in courts .The special magistrates may as far as practicable try cases on a day to day basis and may mete out any sentence authorized by law for corruption offences and economic crimes.

b. Anti-Corruption Courts

 

The State Government may, for the purposes of providing speedy trial of offences referred to in the Anti-Corruption and Economic crime Act by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification. A Special Court consists of a single Judge who shall be appointed by the State Government with the concurrence of the High Court. A person is not be qualified for appointment as a Judge of a Special Court unless he was, immediately before such appointment, an Additional District and Sessions Judge.

At the High Court Buildings there are courts specifically for hearing corruption related cases. Sec. 71 of the Anti-Corruption and Economic Crimes Act provides that the Act shall apply to offences under the prevention of Corruption Act (chapter 65 of the laws of Kenya, now repealed). Thus, a person who committed a corruption offence under the Prevention of Corruption Act shall be liable to prosecution under the Anti-corruption and Economics Crimes Act. 

In trying the procedure and powers are limited to the provisions of the criminal procedure code and the magistrate courts acts shall so far as they are not inconsistent with the act

apply and the special magistrate may pass upon any person convicted by law any sentence authorized by law. 

Section 71 of the Anti-corruption and economic crimes act provides that the act shall apply to offences committed under the prevention of corruption act. Under the Anti-corruption and economic crimes act, a Kenyan national may be brought before Kenyan court for corruption offences or economic crimes committed in a foreign country if conduct in question would amount to corruption or economic crimes had it taken place in Kenya. Section 71 of the Anti-Corruption and Economic Crimes Act provides that the Act shall apply to offences committed under the Prevention of Corruption Act (Chapter 65 of the Laws of Kenya, now repealed). Thus, a person who committed a corruption offence under the Prevention of Corruption Act shall be liable to prosecution under the Anti-Corruption and Economic Crimes Act. The penalties for corruption offences and economic crimes as provided for states any person found guilty of corruption offences or economic crimes shall be liable to a fine not exceeding 1,000,000/- or to imprisonment for a period not exceeding ten years or to both the fine and jail term. An additional mandatory fine, if as a result of the corrupt conduct or economic crime, the person received a benefit that can be quantified or measured or any person has suffered a loss that can be quantified or measured. The mandatory fine shall be equal to two times the amount of the benefit or loss described above, or to two times the amount of the benefit and loss described above where the corrupt conduct or economic crime results in both a benefit and a loss. A person who engages in corrupt conduct or economic crime is personally liable to anyone who suffers a loss as a result for an amount that would be full compensation for the loss suffered, with interest.

1.3. Office of the Attorney General (The Department of Public Prosecution)

 

a. Establishment

 

The department of public prosecution is a department under the office of the attorney general’s office deriving its powers from section 26 of the constitution, and that prosecutes corruption and economic crimes.

b. Mandate       

 

Regarding corruption and economic crimes, the attorney general has the mandate to:

  • Peruse and direct on files forwarded to him by KACC after investigations.
  • Call upon the director of KACC to investigate corruption related offences and report to him.
  • File criminal charges and prosecute in court.
  • Represent the public, applications, judicial views, constitutional references, or appeals arising from, or in relation to corruption and economic crimes cases in the High Court and Court of Appeal.
  • Prepares and tables anti-corruption and economic crime annual reports annual reports before the parliament. Detailing the steps he as taken with regards to files forwarded to his office by the KACC during the year.
  • Further the Attorney General prosecutes serious fraud cases investigated by the CID and Banking Fraud Investigation Department. (BFDI).

 

 

 

 

 

1.4 Kenya Anti-Corruption Commission (KACC)

 

  1. a.     Establishment

 

The Kenya Anti-corruption commission is a public body established under the Anti-corruption and Economic Crimes Act as the main agency with a statutory mandate to fight corruption in Kenya .The commission has the capacity to sue and be sued in its name and to acquire and dispose of property. The commission was established on 2nd May 2003 when the Anti-corruption and Economic Crimes Act came into force. It is established under section 6 of the act. KACC’s vision is to be a world-class institution fostering zero tolerance to corruption in Kenya and their mission is to combat corruption and economic crimes through law enforcement prevention and public education.

  1. b.     Institutional Structure

 

 The director who is the chief executive officer of the commission heads KACC. He is assisted by up to four ass. Directors one of whom is the deputy director. The deputy director assists the director in discharging his duties in his absence. The commission has four directorates each headed by an assistant director these are   

  1. Investigation and asset Tracing directorate
  2. Legal services and Asset Recovery directorate
  3. Research, education, policy and preventive services directorate
  4. The Finance and Administration directorate                                                                                              

The Kenya Anti-corruption Advisory Boards recommends to parliament for approval of names of persons for appointments as director, ass. Directors or acting ass. Directors of the commission. Once the parliament approves the names the president then formally appoints the person to the various offices for which approval was given by parliament. The Board has powers also to recommend the appointment of a tribunal to remove a director or ass. Director. It also has an advisory role to the commission in the exercise of its powers and performance of its functions.

  1. c.     Mandate

The Commission is mandated to combat and prevent corruption through enforcement of the law, educating the public and enlisting their support against corruption and providing preventive services through promotion/ development of good practices to seal opportunities and loop holes that facilitate corruption.

In as much as the commission is an independent body it has a specific mandate to deal with corruption and may cooperate with any other agency, as it deems appropriate in the discharge of its mandate under section 7 of the act to:

  1. Investigate corrupt conduct and activities
  2. Prevent the occurrence of corrupt practices
  3. Advise public institutions on how to fight corruption
  4. Educate the public on the dangers of corruption
  5. Enlist public support in fighting corruption and economic crimes
  6. Facilitate the recovery of ill-gotten wealth        

The commission receives oral and written complaints from members of the public and other institutions .It also investigates cases of corruption on its own . However the anti-corruption and economic crimes act doesn’t give the commission the powers to prosecute criminal cases. The commission only investigates and makes recommendations for prosecution to the attorney general. In conclusion it is the civic duty of every citizen to stand up against corruption. The law protects informers who may assist the commission in dealing with corruption offences or economic crimes. No action may be taken against the informers for the sake of their assistance so long as they believe the information is true. There is a move to enact a whistle blown act so as to protect people who volunteer information about corruption. This will help remove fear of victimization that people may have should they report corruption.

d.     Statutory Functions

The Anti-Corruption and Economic Crimes Act 2003 mandates the Commission to perform the following functions;

  • Investigative function: The Commission investigates any matter that, in the Commission’s opinion, raises suspicion that any of the following have occurred or is about to occur:
    • Conduct constituting corruption or economic crime;
    • Conduct liable to allow or encourage corruption or economic crime.
  • Advisory Function: At the request of any person, the Commission advises and assists the person or any public body on ways in which the person or body may eliminate corrupt practices.

The Commission also examines the practices and procedures of public bodies in order to facilitate the discovery of corrupt practices and to secure the revision and methods of work or procedures that, in the opinion of the Commission may be conducive to corrupt practices.

  • Educative Function: The Commission has the mandate to educate the public on the dangers of corruption and economic crimes and to enlist their support in combating corruption in the country.
  • Restitutionary Function
    The Commission has powers:

    • To investigate the extent of liability for the loss or damage to any public property and;
    • To institute civil proceedings against any person for the recovery of such property or for compensation; and
    • To restore such property to the public even if the property is outside Kenya

 

1.5 National Anti-Corruption Campaign Steering Committee

 

a. Establishment

The national anti-corruption Campaign Steering committee (NACCSC) was established by his Excellency the president of the republic of Kenya, Hon. Mwai Kibaki, through a gazette notice No. 4121 of 28th may, 2004. The committee comprises of 28 members drawn from the private sector, civil society, faith based organizations and the government. The key role of the committee is to cause fundamental changes in people’s attitudes towards corruption through public awareness and education campaigns.  

 

 

The National Anti-Corruption Campaign Steering Committee is a programme in the Ministry of Justice and Constitutional Affairs that spearheads the campaign against corruption. It stands out as one of the very active anti-corruption agencies in Kenya that works closely with the Kenya Anti-corruption Commission by establishing formal and informal linkages with KACC for reporting. It is essentially a civil society – led public awareness body that endeavors to reach the anti-corruption crusade into the street, to the common man. It draws its members from among the various stakeholders including religious organizations, civil society, think tanks and other interested parties.

According to Transparency International 2004 Kenya Bribery Index (KBI) report, reduction in incidences of corruption is being led by the public rather than by public officials. This can be traced to an enlightened public that is aware of its rights, and a public that is not afraid to invoke those rights when in danger of infringement. It is noteworthy that 45% of the public according to the same survey expects to see a reduction in corruption. This means that some inroads are being made in stigmatizing corruption.

 b. Mandate

 

The National Anti-Corruption Campaign Steering Committee is leading by promoting anti-corruption initiatives.  These measures are expected to help reduce corruption in all sectors of the country through: -

  • Conducting consultations with anti-graft agencies to devise priority initiatives for quick wins in the fight against corruption and holding consultations with “perception change” experts.
  • Conducting surveys and analyses to establish gaps and establish sectors for priority focus.
  • Design themes for the anti-corruption campaign through consultations with experts and pre-test strategies

The functions of the National Anti-Corruption Campaign Committee are:

  • To establish a framework for a nationwide campaign against corruption.
  • Effect fundamental changes in the attitudes of Kenyans towards corruption.
  • Identify strategic stakeholders and develop a mechanism for their efforts, co-operation and involvement in effecting change in popular perceptions about corruption.
  • Mobilizing stakeholders across all sectors and the general public to evolve a strong anti-corruption culture and participate in the fight against corruption.
  • Provide a framework for raising public awareness and advocacy by key stakeholders in public and private institutions and the general society.
  • Develop and conduct programmes creating a strong anti-corruption culture and strengthening the fight against corruption.
  • Develop indices for regular monitoring and evaluation of the anti-corruption campaign and report the progress made in the fight against corruption, attitude change and in-building a mature anti-corruption culture.
  • Identify and facilitate mobilization of resources to achieve the goals and objective of the campaigns.
  • Carry out such other functions as may be deemed necessary or incidental to the success of the campaign.

The NACCSC further hopes to increase efficiency in service provision within all the sectors of the country by:-

  • Designing an effective monitoring and evaluation mechanism
  • Conducting validation forums with key stakeholders
  • Conducting consultation seminars on governance and accountability with parliamentarians, political parties to respond to research findings
  • Conducting sector-wide consultation with key actors in support of the anti-corruption campaign
  • Increasing participation of the Kenyan public in the fight against corruption by designing a mobilization strategy fro diverse sectors to support the anti-corruption campaign
  • Mobilizing diverse sectors e.g. Professional associations, community based organizations and religious groups, governmental organizations to design a national network to support and implement the anti-corruption campaign
  • Develop materials for public education and validate them with different stakeholders
  • Establish and train provincial community theater units to support the anti-corruption campaign
  • Mobilize divisional agencies to spearhead the anti-corruption campaign and conduct training at divisional level
  • Monitor and support the community training and integrity awards biannually
  • Increase reporting on inroads made in the anti-corruption campaign by
  • Establish formal and informal linkages with KACC for reporting
  • Prepare campaign update reports to the patron.
  • Review campaign progress biannually and checking these against the established monitoring and evaluation framework.
  • Production of an annual report on the campaign
  • Increase vocalization of anti-corruption messages from opinion leaders by
  • Conducting GJLOS sector wide consultation with key actors to support the anti-corruption campaign
  • Formalize dissemination of anti-corruption messages through government structures by the head of the civil service.
  • Running a professionally managed campaign by establishing a secretariat that reflects the principles and values of the campaign.

 

1.6             Ministry of Finance

The Ministry of Finance, like all other ministries is a constitutional office, provided for under section 16[1] and section 24 of the constitution of Kenya.

Mandate

In the fight against corruption, the Ministry of Finance has done the following;

v     Remuneration of the members of staff of anti-corruption bodies e.g. members of the Kenya Anti-Corruption Advisory Board and KACC.

v     MTEF and budgetary monitoring.

v    National budget co-ordination and control to approve, in consultation with the Minister for Justice and Constitutional Affairs, the annual KACC budget.

a. Kenya National Audit Office. [KNAO]

The office works under the Public Audit Act [of 2003]. It reports to Parliament through the Minister for finance and the Act provides for financial independence to the office.

        Mandate

  • It is in charge of auditing all government departments and state corporations, with a view to determine whether the citizens are getting value for their money.
  • It is required to determine remuneration and terms of conditions of service.

 

b. The Efficiency Monitoring Unit.

It was established in 1991 to monitor the implementation of policies, programmes and government projects. Its major function is to ensure transparency and accountability in the public sector.

Mandate

  • Undertake investigations of reported irregularities or inefficiencies in Government Ministries, departments, state corporations and local authorities.
  • Monitor and study with a view to advising the government on problems being encountered in the implementation of policies, programmes and projects and suggesting remedial measures based on analysis.
  • Study a selected number of implemented projects and draw practical experiences for use by designers and planners of similar projects.
  • Review systems and procedures for public organisations with a view to improving existing management systems for effectiveness and efficiency.
  • Review and suggest improvements in the existing methods of monitoring and implementation of development programmes and projects.
  • Assess the extent to which completed development projects are operational as planned and adequacy of their maintenance provisions.
  • Monitor with a view to reviewing current procedures and practices for collecting Government revenue and suggest more efficient ways of maximizing collection.
  • Monitor the working environment end conditions in the public service.
  • Participate in various task forces and committees dealing with policies and undertake any other assignments as may be directed from time to time.
  • Monitoring declaration of income, assets and liabilities by government officers in accordance with the Public Officer Ethics Act, 2003.

The EMU reports serve five purposes: prosecutions; disciplinary actions; dispute resolution; recovery and surcharge.

iii. A review and assessment of Anti- Corruption  strategies for the period january, 2004 to december, 2005

 

a. Introduction

Under this topic the main matters involved are specific time bound actions that the Government of Kenya had placed to take before December 2005. The following five areas constitute the pillars of comprehensive anti-corruption strategy that the Government sought to follow:

  1. Enactment of the necessary legislation to establish a legislative platform on which to anchor the war on corruption.
  2. Vigorous enforcement of anti-corruption laws through investigations of offences of corruption and economic crimes as well as recovery of corruptly acquired property.
  3. Identification and sealing of corruption loopholes through institution of effective public senior management controls.
  4. National public education aimed at stigmatizing corruption and inducing behavioral change.
  5. Implementation macroeconomic and structural reforms to reduce the incidence and demand for corruption by scaling down the role of the public sector and bureaucracy.

 

b. Anti-Corruption Strategies

2.1 Investigations

The Government, through investigative agencies has improved its tempo on fighting corruption. All the government policies and actions are seen to enhance further the effectiveness of key anti-corruption investigative agencies. This is a review of the status of investigations by July 2005:

 KACC[2] had 123 staff and by the end of that month it would be fully operational when it recruits the full staff complement of 212. The final phase is completed on august 1st 2005 with a full staff complement save for one position of Assistant- Director, Finance and Administration which is pending action by parliament and His Excellency the President.

On investigation issues KACC had submitted 54 files to the Hon. Attorney General. Of which 37 recommended criminal charges, 14 closures of files where no offences  disclosed or  there was insufficient evidence, and 3 recommended administrative or other action. Complete investigation were made of the alleged 20 corruption cases. Of the 20 alleged cases, KACC had already investigated 4 cases in conclusion and 3 permanent secretaries, 3 senior servants: a director of a commercial bank and Managing Trustee of an entity were arraigned in court on corruption charges. CID had completed investigations of one resulting in the prosecution of the Managing Director of a large firm and was already investigating the second one. Another 4 cases are the subject of on-going civil proceedings in the High court and therefore cannot be investigated properly by the KACC. By July 2005 investigations into 8 out of the original list of 20 cases that the KACC took up were in advanced stage.

On May 2005, the Government through Kenya National Audit Office (KNAO) plans to complete the independent Audit by Controller and Auditor General of the Security related contracts. On April 2005, the government suspends payments for the contracts pending the outcome of the audit. Interim Audit report had been completed and the final report would be ready by mid May 2005. Based on this interim Audit, KACC is conducing investigations. Government to consider public disclosure of the findings as appropriate.

As one can deduce, KACC seems to be the chief investigative body and has ensured that investigations are done to those who are implicated in corruption.

 

2.2 Prosecutions

On prosecution of cases of corruption the government sought to;

  1. Expand the jurisdiction of special Magistrates and to enable them to deal with corruption and economic crimes
  2. Empower the High Court to appoint a receiver of property suspected to have been obtained through corruption,
  3. Permit the KACC to take over investigations involving corruption commenced by the police.

The government sought to achieve this through to the Statute Law (Miscellaneous) Bill which was to be submitted to parliament by April 2005 through the Office of the Attorney General.

The bill amends among others, the Anti-corruption and Economic Crimes Act 2003 and the Public Officers Ethics ac of 2003.

The April, 2005 Bill was withdrawn and later republished in October, 2005 in order to include further amendments. Parliament went on recess before the bill could be debated and passed. The bill was expected to be republished by April, 2006 with more proposed amendments.

The Office of the Attorney General and MOJCA, submitted to parliament the Witness Protection Bill which was published on 24th March 2005 and that introduced legislation for witnesses and whistle blower protection. The bill has not yet been considered by parliament. 

The Government also sought to increase the number of judges, magistrates and professional legal staff and updated schemes of service. This bill- the Statute Law (Miscellaneous Amendments) Bill- however lapsed, by July 2005, and so was to be replaced by a similar one on April 2006.

To enhance prosecution capacity by among others, recruitment, review of remuneration and assessment of training needs. The Department of Public Prosecutions in the Office of the Attorney General has been thematically reorganized to create a special Anti- Corruption, economic crimes, serious Fraud Prosecution and asset forfeiture section. The Attorney General has received 57 files from KACC and the CID. Six files from KACC have been taken back to the CID for revaluation. The AG has taken 35 cases to court compromising of 26 from KACC and 9 from the CID. Of the 22 files, 14 will be closed due to lack of evidence as recommended by KACC, administrative action will be taken on three cases while five will be prosecuted shortly. The persons already taken to court include 6 permanent secretaries, 14 parastatal heads as well as business tycoons and professionals.

Automation of recordings of court proceedings was by July 2005, had its preliminary background done and the next phase is awaiting the procurement of relevant goods and services.

2.3 Prevention

The government sought to establish an autonomous Public Procurement Oversight Authority that will be responsible for the regulation of procurement in the Public sector. This was achieved when they submitted the Public Procurement and Disposal bill 2005 through the Ministry of Finance and the Office of the Attorney General, submitted on April 2005. The bill had its first hearing on 5th April 2005. It provides specific provisions for procurement of security goods, works and services, which shall be subjected to classified audit and presented to Parliament. This will enhance value of money, accountability and transparency. The Public Procurement and Disposal Act, 2005 is now in force.

The Government through the Privatisation act seeks to provide for the privatisation of public assets and operations including state corporations, by requiring the formulation and implementation of a privatisation programme by a Privatisation Commission. This act was submitted to parliament by April 2005 through the Ministry of Finance and the Office of the Attorney General and it is now in force when parliament passed it on 10th August 2005.

On undertaking to modernize Company Law and computerize company registry and records management, and diagnostic assessment and complete filling annual returns, the government by April 2005 was working on the draft Companies Bill and by July there was a slow down due to hitches in contracting consultants to finalize the Bill[3]. .

The Statute Law (Miscellaneous) Bill 2005 gives KACC powers to verify declarations without a trigger of suspicion, as is currently the law. Once the bill is debated, verified and accented the complete then verification of the asset declarations of ministers, permanent secretary and heads of State bodies would be done by KACA.

2.4             Public awareness

 

On public awareness the government has sought to enable the public access to the declarations of assets made by Public Officers and by April 2005, the government had prepared regulation to streamline public access that will be facilitated by through the amendment of Public Officer Ethics Act, when the Statute Law (Miscellaneous Amendments) Bill is passed. The Ministry of Justice and Constitutional Affairs had prepared regulations to facilitate better enforcement of the wealth declaration process. The same was awaiting the Attorney General before publication.

Enhancing public interaction was done by government on governance by establishing a Public Complaints Unit (PCU) to serve as a central referral and a monitoring and Evaluation unit. By April 2005, executive Order for establishing the PCU had been developed and sent to the AG for verification. By July 2005, the executive order had been forwarded to the president.

Education

One policy was put in place is to spearhead a country wide public education campaign against corruption. By April 2005, a baseline survey had been undertaken and a strategic plan had been developed. This is to clarify the roles of KACC and the National Anti-corruption Campaign. Launch anti-corruption nationally.

By July 2005, the strategic planning process is ongoing:

  1. A meeting by MoJCA to clarify roles of the various anti-corruption agencies was held at the Windsor Golf and Country Club, Kiambu, 9th August, 2005.
  2. recruitment of all key personnel was already done
  3. Preparations to launch the campaign nationally were underway. H.E. the president was scheduled to launch the anti-corruption activities at the KICC on 2nd march 2006.
  4. Anti-corruption campaigns in the print and electronic devises had already began

Country wide sensitization of Public Officers on corruption through the PSIP programme was on course. 

2.5 Asset recovery

On asset recovery there is an intensify program of tracing, recovery and restitution of assets suspected to be illegally acquired. Significant progress has already been made in tracing assets in foreign accounts. All this is done by KACA and the government seeking international assistance of this programme. The programme is on going. KACC is involved in instituting and filing civil suits and applications under Anti-Corruption and Economic Crimes Act, 2003.

On implementation of the main recommendations of the Presidential Commission on illegal and irregular Allocations of Public Lands (Ndun’gu Committee), namely: repossess illegally acquired land. The Ministry of lands and settlement is implementing the necessary measures of recovery and restitution of assets suspected to be irregularly or illegally acquired. The Ministry has constituted a committee in which KACC is represented to consider and advice on the modalities of recovery of such property.

Completion of the Goldenberg Commission of Inquiry and preparation of an action plan for implementation. Action plan for implementations to be developed. Government to consider public disclosure of the report and administrative action against those implicated in the report. The report was finalized and presented to H.E. the president on 2nd February, 2006. a committee comprising the MoJCA, State Law Office, the Police and the KACC has been mandated to oversee the implementation of the report

2.6 Enforcement of ethics and integrity

To provide for regulation, disclosure, expenditure limits and state subsidies financing of political parties, the government through MOJCA submitted on December 2005 the Political Parties Bill which by [4]April 2005 was still being validated by the various political parties. By July the same year, it had already been validated and was awaiting publication.

The government also introduced legislation to address money laundering and proceeds of crime through the Anti- Money Laundering and Proceeds of Crime Bill which by July 2005 was still in the process if being prepared. This was done through the MOJCA and the Office of the Attorney General.

 

iv. Review of the Strategic plans of the named Anti-Corruption Agencies, Annual or quarterly reports, Literature of the agencies in the Kenya Gazette, the Dailies, Institutional Publications and others.

3.1                          Ministry of Justice and Constitutional Affairs (MOJCA)

This Strategic Plan covers the period 2004 – 2007. It is the culmination of sustained efforts by stakeholders in the legal and justice sector, to define the roles and functions of the ministry as well as develop its structure and operational infrastructure. It has been developed through a participatory process involving Ministry staff, KLRC, KSL, KNCHR, ECK, AG, Judiciary and GJLOS.

a. Rationale

In its efforts to revive the economy and meet the peoples’ aspirations for better living conditions, the government realises that the starting point is better governance, improved security in the country and the restoration of the rule law. Recognising that poor governance, insecurity and rule of law are some of the major causes of growing poverty, general insecurity and economic collapse, the NARC government has a heavy challenge at hand.The problem is even more daunting given that the goverment is affected by declining resources. The government has expressed it’s commitment to undertaking reforms so as to increase efficiency and productivity. The ERS states that the civil service must be transformed to a proactive, outward looking and results orientedand one that seeks “customer satisfaction” and value-for-money. This transformation will require dynamic and mutually supportive reforms to both human resource and finance and budget management. The limited resources must therefore be targeted to policy priorities and core functions through strategic planning.

The goverment is commited to accelerating the public service reform to create a leaner, efficient,motivated and more productive public service that concentrates public finance and human resources on the delivery of core government services. The reforms also focus on providing adequate incentives to attract and retain skilled personnel; to achieve a pay structure and size of the civil service consistent with both macroeconomic objectives and a sustainable wage bill. These reforms will include rationalization of ministerial functions with a view to eliminating duplications of functions and diversting from services that can more efficiently be provided by the private sector.

Therefore, one of the priorities of the Economic Recovery Strategy (2003-2007) is to downsize the public sector and make it more facilitative and investor-friendly in order to promote private sector-led growth. Reforms to make the public sector more efficient and productive started way back in the 1980’s and have continued to intensify.

The Ministry is in its formative stage and is not burdened by excessive structures and overstaffing, as is the case with other ministries. All that is required is to professionally identify its mandate, core functions and policy priorities and build its capacities

 

 

3.2    Judiciary (Anti-corruption Courts/Special Magistrates Courts)

 

         On 19th March 2003, the Chief Justice appointed the integrity and Anti-Corruption  sub-Committee in response to the then widespread and persistent allegations of corruption in the judiciary. This was to:  

  • Investigate and report on the magnitude of corruption in the judiciary.
  • To identify the nature, form and causes of corruption
  • To report on the impact of corruption in the performance of the judiciary
  • To find out the level of bribery in monetary terms.
  • To identify the corrupt members of the judiciary and to recommend disciplinary or other actions against them and to recommend the strategies for the detection and prevention of corruption in the judiciary.

                      On 18th March 2005, the Chief Justice appointed the Ethics and Governance Sub-committee. Two of its items of reference are to collect information relating to the

integrity of the entire Judiciary staff and court process, and to investigate all cases of alleged corruption, unethical behaviour and other lack of integrity.

                      The Judicial Service Code of Conduct and Ethics developed under the Public Officers Ethics Act is being vigorously enforced.

                       On the 18th March 2005, the Strategic of the Judiciary was launched by the Chief Justice. Eradication of corruption is one of the strategies.

The following mechanisms have been undertaken to ensure corruption eradication in the dispensing of justice:

  • The establishment of various court divisions of special magistrates to hear corruption and related offences
  • The review of the court process and Civil Procedure Rules to simplify them and make the judicial process more efficient thereby reducing the attraction to corruption.
  • Recruitment and training of more special magistrates for corruption courts all over the country
  • Review of the constitutional reference rules to facilitate efficient disposal of corruption cases.

 

3.3      Office of the Attorney General/ Director of Public Prosecution

the office of the attorney general has embarked on several actions in the fight against corruption.

First, it has/has been in the process to expand the jurisdiction of special magistrates and enable them to deal with corruption and economic crimes. They also want to empower the high court to appoint the receiver of property suspected to have been obtained through corruption. It will also permit the KACC to take over investigations involving corruption commenced by police.

Second, it established an autonomous Public Procurement Oversight Authority that will be responsible for the regulation of procurement in the public sector.

Third, it provides for the privatization of public assets and operations including state corporations, by requiring the formulation and implementation of a privatization commission 

Fourth,introduce legislation for witness and whistle blowers protection.

Fifth, provide for regulation, disclosure, expenditure limits and state subsidies financing of political parties.

Six, introduce legislatin to adress money laundering and proceeds of crime.

Increase number of judges, magistrates and professional legal staff and update schemes of service.

Modernize company law and computerize company registry and records management. Undertake diagnotic needs assessment and complete filing annual returns.

 

 

3.4     Kenya Anti-Corruption Commission (KACC)

Further strengthening of the legislative platform

 

         The commission has embarked on a countrywide education programme for public servants to sensitize them on the causes and consequences of corruption, and the benefits of preventing corruption. The education programme has also aimed at sensitizing these officers on anti-corruption laws in Kenya.

            To this end, the commission has and continues to coordinate the Public Service Integrity Programme (PSIP).The commission is also coordinating the finalization of the National Anti-corruption Plan (NACP).

               The Commission has established coalitions and partnerships with institutions with similar objectives. It intends to begin sensitizing members of the public on matters of corruption through interactive radio/TV programmes among other initiatives.

                  Another strategy that the commission has in place is that of investigations and asset tracing as well as the recovery of corruptly or improperly gotten assets.

                    The prevention of corrupt conduct or activity in institution is also another strategy that the commission has put in place. The Commission intends to achieve this by identifying loopholes that exist in various systems in an organization and giving on how to seal these loopholes.        

                     In September 2004 MOJCA and KACC advisory board developed a strategy to strengthen anti –corruption enforcement agencies. They also have in place a strategy to strengthen existing programmes that were put in place to fight corruption.

3.5             National Anti-Corruption Steering Committees (NACSC)

                  It has developed a strategy to develop and operationalise a national anti-corruption pragramme through the following activities

  • In December 2004 the committee finalised the national anti-corruption programme.
  • In August 2004 the committee and MOJCA established a secretariat far the NACC steering committee and operationalised it.
  • In January 2005 MOJCA, the steering and stakeholders relaunched the five-year national anti-corruption campaign.
  • The steering committee is conducting Anti-corruption forums
  • The committee is conducting stakeholder symposiums.
  • MOJCA and the Steering Committee are monitoring and evaluating corruption perception and performance of Anti-Corruption programmes.
  • Was, for the period of January 2005 to December 2006, to assist stakeholders in developing their specific programmes.

 

3.6             Ministry of Finance

Improve sector management

The  ministry of finance has a core duty as shown by the reports to improve public sector management on the following way to ensure that the budget strategy is approved by full cabinet and forms the basis for the 2005/06 line item budget that is consistent with an agreed macro-economics framework and ministerial priorities in the budget strategy

 

References

 

4             Government of Kenya: Investment Programme for he Economic Recovery  strategy for Wealth and and Employment Creation: 2003-2007, Nairobi, March, 2004

5             Ministry of Justice and Constitutional Affairs: Strategic plan:2004 &5-2006&7, Nairobi, 27th july,2004

6             Ministry of Justice and Constitutional Affairs: Performance Contract (with                 government), 2005/2006

7             Government of Kenya’s comprehensive Anti-Corruption Strategy: Action Plan for the April, 2005-June 2006

8             Attorney General Annual Reports on Prosecution under s. 37 of the Anti-Corruption and Economic Crimes Act (for the period Jan 1, 2004 – Dec 31, 2005)

9             Ministry of Justice and Constitutional Affairs: Development of a National Action Plan Against Corruption: Report of the Meeting of the public institution involved in the war against Corruption, Windsor Golf and Country Club, Kiambu, August 9, 2005.

10         Kenya Anti-corruption Commission Quarterly reports under s. 36 of the Anti-Corruption and Economic Crimes Act (for the period Jan 1, 2004 – Dec 31, 2005)

11         Kenya Anti-corruption Commission Annual reports under s. 15 of the Anti-Corruption and Economic Crimes Act (for the period Jan 1, 2004 – Dec 31, 2005)

12         The Anti-Corruption Economic Crimes Act, 2003 (No. 3 of 2003)

 

Web Pages

www.justice.go.ke

www.attorney-general.go.ke

www.treasury.go.ke

www.kacc.go.ke

www.lawsofkenya.com

www.firstlaw.com

www.kenyalawreports.com[sani1] 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Just Like I Started May The Lord Bless The Work of My Hands, Amen.


[1] The Statute Law [Miscellaneous Amendment] [No. 1] Bill, 2005 seeks to amend the Judicature Act, Cap. 8, to provide for the increase of puisne judges from 50 and 70 and Court of Appeal judges from 11 to 14. this would effectively address the backlog of cases in both the High Court and Court of Appeal.

[2] Kenya Anti-corruption Committee (KACC).

 KACC as a public body established under the Anti-corruption and Economic Crimes Act of 2003, empowered with the task of combating corruption and economic crimes, carry’s out its task through Law enforcement, prevention and pubic education. The Commission is mandated under section 7 of the act to investigate corrupt conduct and activities, prevent occurrences of corrupt practices, advise public institutions on how to fight corruption, educate the public on the dangers of corruption and economic crime, and facilitate the recovery of ill-gotten wealth.

Strategies

The Commission receives oral and written complainants from members of the public and other institutions. There has been a move to improve the accessibility of members of the public through toll fee phones to facilitate reporting by the public, establishment of regional offices at the provincial level, outreach programmes and development of interactive radio and  television programmes. The Commission is also processing a website to enable online services. All these are aimed at ensuring that the public is properly informed, and sourced with information to enable them in reporting and dealing with corruption.

Procedure for investigations[2]

  1. Oral and written reports are made to the Commission’s office or to their regional offices; however, if it feels that any matter in question raises suspicion that any of the following occurred or about to occur- (1) conduct constituting corruption or (2) conduct liable to propagate corruption, then it may launch and investigation. It is at the discretion of the Commission to institute investigations the conduct of any person that, in their opinion, is conducive to corruption or economic crime[2].
  2. The Commission then investigates the matter or the person in question.
  3. The act does not give the Commission the power to prosecute criminal cases but makes recommendation for prosecution to the Attorney General
  4. The Commission has powers to institute civil proceedings for the recovery of wealth.

 

The commission creates public awareness to prevent corruption.

[3] The leading responsibility were MOJCA and the Office of the Attorney General.

[4] The work was proceeding well and an advertisement for consultancy services on the bill had been placed in the papers.


 [sani1]

FKE Training Manual Labour Bills

September 24, 2010

Federation of Kenya Employers

(FKE)

 

 

 

 

Training Guide on the Labour Bills

 

 

 

 

 

 

September 2007

N A I R O B I


Table of Contents


Foreword

 


About this Guide

 

This Guide is intended to enable the staff and members of the Federation of Kenya Employers to understand, assess and use the proposed legislation on labour. It is composed of five modules. Each Module covers a specific Bill.

The Bills covered by the Guide are:

  • §Module One: Labour Institutions Bill, 2007
  • §Module Two: Employment Bill, 2007
  • §Module Three: Labour Relations Bill, 2007
  • §Module Four: Work Injury Benefits Bill, 2007
  • §Module Five: Occupational Safety and Health Bill, 2007.

 

Within each Module, the Guide provides the following:

  • §The Objectives of the Module
  • §The Topics covered by the Module
  • §The suggested Methodologies of Instruction
  • §The suggested Time Allocation for each Module
  • §A summary of the Content for the Module
  • §Some Issues for discussion.

 

List of Acronyms and Abbreviations

 


Module One: The Labour Institutions Bill, 2007

1.1      Objectives

By the end of this session, the Trainee will be able to identify the institutions which regulate labour relations and understand and discuss their composition, mandates and procedures.

1.2      Topic Outline

1.2.1Introduction

1.2.2National Labour Board

1.2.3Labour Courts

1.2.4Committee of Inquiry

1.2.5Labour Administration and Inspection

1.2.6Wages Councils

1.2.7Employment Agencies

1.2.8Miscellaneous Provisions

1.3      Learning Methodology

1.3.1Briefing[1]

1.3.2Plenary discussions

1.3.3Group discussions

1.3.4Role play

1.3.5Dramatic skits

1.4      Time Allocation

4 hours


1.5      Content Summary

1.5.1                      Introduction

The Labour Institutions Bill (LIB), 2007 establishes labour institutions. It also provides for their functions, powers and duties, and other related matters. The Bill applies to all employees and employers. This is so unless they are excluded by the Bill or the Minister responsible for labour matters.

As an employer, the government of Kenya is also governed by this Bill.

There are certain people who are not covered by the Bill.  They are:

n The armed forces and reserve

n The Kenya Police

n The Kenya Prisons Service

n The Administration Police

n The National Youth Service

In addition, the Minister responsible for labour matters may exclude a group of employees from the application of the Bill. This is only allowed where there are important or special problems. These ‘problems’ are not stated in the Bill. They are left to the Minister to decide. This is an example of what is called ‘discretionary powers’. ‘Discretion’ is where the law allows a person in authority to make a decision on certain legal issues. This must be done in line with the law.

The Bill establishes six main labour institutions. They are the National Labour Board, the Labour Courts, the Committee of Inquiry, the administration and inspection bodies, the Wages Councils and the employment agencies.

1.5.2                      National Labour Board

Composition

The National Labour Board (NLB) is made up of:

nA Chairperson and a deputy chairperson

nThe general secretary of the federation of trade unions which is the most representative

nThe chief executive of the federation of employers’ organisation which is the most representative

nTwo people nominated by the federation of employers’ organisation which is the most representative

nTwo people nominated by the federation of trade unions which is the most representative

nNot more than two other independent members

The secretary to the NLB is appointed by the Minister from the Department of Labour (DoL). He or she should be a person holding a position at the same level as a Deputy Labour Commissioner. The Minister may also appoint other officers to assist the NLB (section 10).

The people appointed as members of the NLB must be Kenya citizens who are morally upright and knowledgeable – that is, ‘of good moral and intellectual standing’.

The NLB has power to form committees to help it do its work.  They include the Immigration Entry Permits Committee, the National Manpower (sic) Development Committee, the Trade Disputes Committee, the Productivity Committee, and such other committees or panels as it may find necessary (section 8).

Functions

The main function of the NLB is to advice the minister on:

n        All matters concerning employment and labour

n        Legislation affecting employment and labour

n        Any matter relating to labour relations and trade unionism

n        Any issue arising from the International Labour Organization (ILO) and ILO Conventions

n        Codes of good practice

n        Any issues raised by an international or regional association of states which Kenya is a member of

n        Systems of labour inspection and the administration of the Labour Acts

n        Any aspect of public employment services, vocational guidance, vocational training and the employment of persons with disabilities

n        The policies to promote the granting of paid educational leave to workers for the purpose of training, trade union social and civic education and trade union education

n        The general state of employment, training and manpower (sic) development in the country

n        Productivity measurement and improvement

n        The appointment of wages councils

n        The appointment of the National Labour Court

n        The setting of compensation benefits under the Work Injuries Benefits Act

n        The registration, suspension and deregistration of trade unions and employers organization, and

n        Any other matter related to the NLB’s functions

The NLB may also:

n Advice the government on the issuing of immigration entry permits and work permits to non-citizens

n Advice the Chief Justice on the assignment of Judges to the National Labour Court and on the rules of the court

n Conduct any necessary investigations and research into labour, economic and social policy (section 7)

1.5.3                      Labour Courts

There are two types of labour courts formed under the Bill. These are the National Labour Court (NLC) (section 11 under Part III) and the Subordinate Labour Courts (SLC) (section 29 under Part IV).

National Labour Court

The Court

The NLC is a superior court at the same level as the High Court in matters of labour relations. Its proceedings have to be recorded. It has the power to deal with cases from (has ‘jurisdiction’) all over Kenya. It is properly constituted when one judge sits with two members (section 11).

 

Composition

The NLC is made up of:

nA principal judge

nA deputy principal judge

nAs many judges as the Chief Justice may consider necessary, based on the advice of the NLB and the Judicial Service Commission (JSC), and

nMembers appointed by the Minister with the advice of the NLB (section 12).

The principal and deputy judge must have knowledge, experience and expertise in labour law and industrial relations (section 11).

The members appointed by the Minister must be at least sixteen. They are appointed for a period of not more than three years. They can be appointed for a second term (section 15).

Tenure

The President decides the period of appointment of a judge of the NLC.

A principal judge or a judge of the NLC holds office until:

nThe judge’s period of office in the court ends

nThe judge’s resignation takes effect

nThe judge is removed from office by operation of the law

nThe judge ceases to be a puisne judge

nThe judge dies (section 14).

A judge hearing a dispute is empowered to appoint two assessors to assist in deciding a dispute if it appears expedient. However, the judge must consult with the parties before the appointment (section 16).

The Minister is also given power to appoint other officers of the NLC. These are the Registrar of the Court and one or more deputy Registrars (section 17).

Jurisdiction and powers

The NLC has exclusive jurisdiction in all matters under the Act subject only to the provisions of section 65 of the Constitution and section 28 of the Act. It has the same level of jurisdiction as the High Court with regard to the conduct of the State as an employer. Besides, the NLC can refuse to deal with a dispute where the parties have not tried to resolve the dispute through reconciliation (section 18).

The NLC has power to:

n        Make any order in a dispute before it

n        Order parties to comply with provisions of labour laws

n        Register collective agreements

n        Make any arbitration award or settlement agreement an order of the Court

n        Determine a trade dispute

n        Forgive the late filing of any document where appropriate

n        Review the performance of any functions provided for in law, or any conduct of the State as an employer, and

n        Deal with any incidental matters (section 19)

The rules of procedure used in the court are made by the Rules Board (section 20).

Lastly:

  • §Proceedings in the NLC must, generally, be conducted in open court
  • §No comment can be published in respect of the proceedings until an award or judgement has been delivered
  • §Where a judge and the members fail to agree, the judge prevails
  • §A person to the proceedings may act in person or be represented by a legal practitioner, an office bearer or official or director or an employee
  • §The NLC is not be bound by the rules of evidence in civil or criminal proceedings
  • §Service and execution of decisions of the NLC may be done just like those of the High Court;
  • §The NLC may review its decisions just like the High Court
  • §Appeals from the decisions of the NLC may be made to the Court of Appeal, but only on matters of law

Subordinate Labour Courts

Constitution

The Chief Justice (CJ) may designate any magistrate’s court to be a ‘subordinate labour court’ (SLC). But the CJ must consult with the Minister and the Principal Judge of the NLC prior to this. Such SLC may be held by a chief magistrate, a senior principal resident magistrate, a principal resident magistrate or a senior resident magistrate (section 29).

Jurisdiction and powers

The SLC has jurisdiction throughout Kenya. It may deal with any criminal or civil proceeding arising out of any labour legislation, unless that dispute has already been referred to the Minister.

SLCs have power to:

  • §Order detention or seek security
  • §Order that the whole or part of a fine imposed on a party be paid to the complainant
  • §Follow civil instead of criminal procedure
  • §Awards for costs (sections 33, 34, 38).

Appeals from SLCs may be made to the NLC (section 39).

1.5.4                      Committee of Inquiry

The Minister may appoint a Committee of Inquiry (CoI) to investigate any trade dispute and make a report to him or her (section 40).

1.5.5                      Labour Administration and Inspection

The law provides for the appointment of:

  • §A Labour Commissioner, a Director of Employment and labour, employment and medical officers to administer labour laws (section 42)
  • §The Registrar of Trade Unions, a deputy registrar and assistant registrars of trade unions and any other officers to administer registration and regulation of trade unions, employers’ organizations and federations under the Labour Relations Act) (section 43).

A labour officer has power to:

  • §Require production of employment records
  • §Require any person with information to supply it
  • §Inspect and copy a list of outworkers kept by an employer
  • §Examine any person to whom a wages order applies
  • §Enter, inspect and examine any land, building or structure
  • §Require an employer to produce an employee and any documents related to him or her
  • §Examine and make copies of any document in relation to employment
  • §Inspect structures and order cleaning
  • §Institute proceedings (section 47)

An employment officer has power to exercise the first three, sixth and seventh powers of the labour officer listed above (section 48).

A medical officer may:

  • §Exercise the fifth to eighth powers of the labour officer listed above
  • §Order a sick employee to return to place of work or go to hospital
  • §Condemn unhealthy food provided for employees
  • §Condemn any structure used by employees which is unfit
  • §Order specific food for employees entitled to such food
  • §Order an employer to provide clothing or blankets
  • §Inspect all drugs and medicine (section 49)

It is an offence for a person to obstruct the work of an authorised officer or fail to carry out orders given under the law (section 50).

The Labour Commissioner and the Director of Employment are required to prepare and publish annual reports of their activities (section 54).

1.5.6                      Wages Councils

The Minister is required to establish a general wages council and an agricultural wages council (section 55).

Composition

The wages council consists of:

  • §A chairperson, a person with knowledge and experience in determination of terms and conditions of employment
  • §Not more than three members representing trade unions (nominated by the NLB)
  • §Not more than three members representing employers (nominated by the NLB)
  • §Not more than three independent members, being people with knowledge and experience in determination of terms and conditions of employment (section 55)

Functions

The functions of the wages council are:

  • §To investigate the remuneration and conditions of employment in any sector
  • §To invite and consider written and oral representations from interested parties
  • §To make recommendations to the Minister on minimum wage and conditions of employment (section 56).

A wages council is required to taker into account the following matters:

  • §The needs of workers and their families
  • §Economic factors
  • §The ability of employers to carry on their business successfully
  • §The operation of small, medium and micro enterprises
  • §The cost of living
  • §The alleviation of poverty
  • §The minimum subsistence level
  • §The likely impact of any proposed conditions on employment
  • §Any other relevant factor

Any minimum wages or conditions of employment in a wage order become part of the terms of employment of any employee to whom they apply (section 60)

Employers are required to keep which show whether or not they are complying with the wage order. The records must be kept for at least three years (section 65).


1.5.7                      Employment Agencies

All employment agencies must be registered by the Director of employment. A refusal by the Director to register an agency must be supported by reasons.

The Director may cancel the registration or vary the terms or conditions of any certificate of registration. Any person who is unhappy with the decision of the Director may appeal to the NLC (sections 67, 68).

Am employment agency must not charge and receive any amount more than the amount indicated for any particular area and class of business (section 69).

An employment officer is allowed to enter into the premises of an employment agency to establish that it is carrying out its activities in line with the law (section 70). An agency which does not comply with reasonable demands of the officer commits an offence.

1.5.8                      Miscellaneous Provisions

The general penalty where no penalty is provided is a fine not exceeding 50 000/- or 3 months imprisonment or both (section 73).

The Act repeals the Regulation of Wages and Conditions of Employment Act (section 75).


1.6      Some Issues for Discussion

1.6.1The language and structure of the law

1.6.2Exclusion of some categories of people from the operations of the law

1.6.3The introduction of criminal sanctions in labour relations

1.6.4The extent of state control of labour relations

1.6.5Powers of the Minister

1.6.6Capacity of the Minister to perform all the roles assigned

1.6.7Appointment/nomination, rather than election, of representatives in tripartite bodies

1.6.8Control of the tenure of judges by the President

1.6.9Designation of magistrates courts as ‘subordinate labour courts’ instead of establishing specialized subordinate labour courts

1.6.10                  The need for wages councils

1.6.11                  Adequacy of regulation of employment agencies

1.6.12                  Existence of an appellate labour court


Module Two: Employment Bill, 2007

 


[1]           [For FKE and FKE Facilitators]: [A ‘briefing’ is a brief statement, mostly interactive, which states or explains an idea or fact. It usually sets the ground for general or group discussions by giving information and raising issues or questions. It is not like a lecture, where ‘the lecturer’ – who ‘knows’ his or her subject, directly provides information like a ‘teacher’]

Labour Relations Act Review

September 24, 2010

REVIEW OF THE LABOUR RELATIONS ACT, 2007

Paul Ogendi

Introduction

This is an Act of Parliament to consolidate the law relating to trade unions and trade disputes, to provide for the registration, regulation, management and democratization of trade unions and employers organizations or federations, to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and promotion of orderly and expeditious dispute settlement, conducive to social justice and economic development and for connected purposes.

The short title of the Act may be cited as the Labour Relations Act, 2007. The Act shall not apply to any person in respect of his employment or service in the armed forces, or any reserve force thereof; in the Kenya Police, the Administrative Police Force, the Kenya Prison Service and the National Youth Service, or in any reserve force or service thereof.


Freedom of Association

 

Section 4 grants every employee the right to participate in forming a trade union or federation of trade unions; and join a trade union. Every member of a trade union has the right, subject to the constitution to participate in its lawful activities; participate in the election of any of its office bearers or officials, and stand for election or seek for appointment as an office bearer or official and, if elected or appointed, to hold office. Section 5 protects employees from discrimination, as result of exercising this right conferred in this Act.

It is the right of every employer, under section 6, to participate in forming an employers’ organization or a federation of employers’ organization; and subject to its constitutions, join an employer’s organization or a federations of employers’ organizations. Every employer, whether or not that employer is a member of an employer’s organization that is a member of federation of employers organizations has the rights subject to the constitution to participate in its lawful activities; participate in the election of any of its office bearers or officials, and stand for election or seek for appointment as an office bearer or official and, if elected or appointed, to hold office. Section 7 protects this right by declaring that no person shall discriminate against an employer for exercising any right conferred by this Act.

Section 8 provides for every trade union, employers’ organization or federation, has the right to determine its own constitutions and rules; and hold elections to elect its officers; plan and organize its administration and lawful activities; participate in the forming of a federation of trade unions or a federation of employers’ organizations; join a federation of trade unions or a federation of employers organizations, subject to its constitution and participate in its lawful activities; affiliate with, and to participate in the affairs of any international workers organization or international employers’ organization, and to contribute and to receive financial assistance from those organizations.

Section 10 provides for, in case of any dispute in interpretation, application of any provision of this part, any party to the dispute may refer the dispute in writing, to the minister to appoint a conciliator as specified in Part VIII; or if the dispute is not resolved at conciliation, to the Industrial Court for the adjudication in accordance with the provisions of the Labour Institutions Act.

Section 11 that addresses the burden of proof states in any proceedings under this Act, a party that alleges that a right or protection conferred by this part has been infringed shall prove the facts of the conduct; and the party who is alleged to have engaged in that conduct shall prove that their conduct did not infringe any provisions of this Part.


Establishment and Registration of Trade Union and Employers’ organizations

Section 12 of the Act prohibits any person from recruiting members into a trade union or employers’ organization without obtaining a certificate from the Registrar issued under this section. The Registrar is required to issue the certificate within thirty days unless, the application is defective; or the name of the proposed trade union or employers’ organization is the same as that of an existing trade union or employers’ organization or is sufficiently similar so as to mislead or cause confusion.

The Registrar may withdraw a certificate issued under this section if the Registrar has reasons to believe that the certificate was obtained by fraud, misrepresentation or as a result of a mistake; or any person has undertaken an unlawful activity, whether in contravention of this Act or any other law, on behalf of the proposed trade union or employers’ organization.

The application for registration is within six months of receiving a certificate issued under section 12. If the Registrar is not satisfied that a trade union, employers’ organization or federation meets the requirement for registration and refuses the application for registration, the Registrar shall advise the trade union, employers’ organization or federation of the reasons for that refusal in Form D set out in the Second Schedule.

In case of successful registration a trade union or employers’ organization shall be a body corporate with perpetual succession and common seal; with the capacity to sue and be sued in its own name; and enter into contracts; and hold, purchase, or otherwise acquire and dispose of movable and immovable property. No person shall perform any Act in furtherance of a trade union or employers’ organization unless that trade union or employers’ organization is registered under this Act; or an application for its registration is being considered.

The effects of registration is contained under section 21 where A trade union, employers’ organisation or federation is to be registered as a body corporate with perpetual succession and a common seal; with the capacity in its own name to      sue and be sued; and enter into contracts; and hold, purchase or otherwise acquire and dispose of movable and immovable property.

Section 27 provides for the procedure for changing of name and/or the constitution. Subsection 4 provides that upon receipt of the notice of change of name or constitution, the Registrar shall give a notice of at least twenty-one days in the Gazette and in three daily newspapers of national circulation inviting any objections to the proposed change of name or constitution by members of the trade union and where any such objection is raised, the Registrar shall investigate the complaint and the grounds relied upon and may refer the matter to the Industrial Court; refuse to accept the proposed amendments; or make any orders that he may deem fit in the circumstances.

However, under subsection (5) the Registrar may approve a change of name or to the constitution if the applicable requirements of registration of a trade union, employer’s organisation or federation are met. The Registrar shall issue a certificate of change of name or change of the constitution in Form K or Form L, as the case may be.

Section 28 gives power to the Registrar to cancel or suspend the registration of a trade union, employers’ organization or federation if the trade union, employers’ organization or federation is dissolved or the registrar is satisfied that it has ceased to exist. When the trade union or the employers’ organization is dissolved it shall give notice of the dissolution in Form O set out in the Second Schedules which shall be submitted to the Registrar within fourteen days of the resolution to dissolve; and shall be signed by authorized representative and by seven members of a trade union or three members of an employers’ organization or federation.

Section 29 provides for dissolution under subsection (1) when a trade union, employers’ organisation or federation is dissolved, the trade union, employers’ organisation or federation shall give notice of the dissolution in Form O set out in the Second Schedule which shall be submitted to the Registrar within fourteen days of the resolution to dissolve; and shall be signed by authorized representative; and by seven members of a trade union or three members of an employers’ organisation or federation.

Appeals are entertained under section 30 from any person aggrieved by a decision of the Registrar made under this Act to appeal to the Industrial Court against that decision within thirty days of the decision. 


Officials and Members of Trade Unions and Employers’ Organization

Under section 31, the officials of a trade union or employers’ organization shall be persons who are, or have been, engaged or employed in the sector for which the trade union or employers’ organization is registered. No person shall be an official of more than one trade union or employers’ organization. An official of a trade union may also be an official of a federation of a trade union to which the trade union is affiliated. No person convicted of a criminal offence involving fraud or dishonesty shall be an official of a trade union or employers’ organization.

Section 32 provides that minors who have not attained eighteen years and appears to be above the apparent age of sixteen years may be a member.

No person shall be a voting member unless that person is employed in the sector for which the trade union is registered; an employers’ organization unless that person has a physical address or an office in Kenya; a registered trade union or employers’ organization if that person’s subscriptions are more than thirteen weeks in arrears.

Elections of officials shall be registered in accordance to the registered constitutions. Under section 35 no change of officials shall have effect unless it is registered by the Registrar.

Property, Funds and Accounts of Trade Unions, Employers’ Organizations and Federations

Section 36 states that the constitution of a trade union, employers’ organization and federation shall provide for the appointment or elections of at least three trustees; and for the filling of a vacancy in the office of a trustee to ensure that there are at least three trustees at all times. All the property is to be vested to the trustees on behalf of the membership. 

Any funds may only be used to the payment of salaries, allowances and expenses to its officials, administration, prosecution or defence of any legal proceedings, conduct trade disputes, payment to members and beneficiaries, as the Minister may allow through a notice at the Gazette and subscribe to any registered federation.

Section 41 allows for an injunction to restrain misuse of funds. The institutions are required to furnish the Registrar annually a general statement of all receipt and expenditure during the year ending 31st December of the preceding year. The Registrar may, at any time, call upon the treasurer, the executive or management board to render detailed accounts of its funds or the funds of any branch for any period, in the manner and containing such information as the registrar may require.

The Industrial Court may order any person who has in his possession or control any property, or unlawfully expended or withheld its money to its trustees; it may also suspend any official who contravenes this paragraph.


Trade Unions Dues, Agency Fees and Employers’ Organizations Fees

 

Under section 48 (2) a trade union may, in the prescribed form, request the Minister to issue an order directing an employer of more than five employees belonging to the union, deduct trade union dues from the wages of its members; and pay monies so deducted, into a specified account of the trade union, or in specified proportions into specified accounts of a trade union and a federation of trade union.

Section 49 allows a trade union that has conducted a collective agreement registered by the Industrial Court with an employer, group of employers or an employer’s organization, setting the terms for all unionisable employees covered by the agreement may make a request to the Minister to issue an order requiring any employer bound by the collective agreement to deduct an agency fee from the wages of each unionisable employee covered by the collective agreement who is not a member of the trade union.

Any amount deducted in accordance with the provisions of this part shall be paid into the designated trade union or employers’ organization account within ten days of the deduction being made.

Section 51 allows the Minister to make regulations providing for the collection from employees and the payment to trade unions and trade unions federations by employers of sums in respect of levies, subscription or other payment, other than trade union dues, for particular purposes or objects approved by the Minister.

Under section 53 an employers’ organisation may provide in its constitution for its members to pay subscriptions or levies as a condition of their membership of the employers’ organisation; and to charge its members a fee for services rendered to, and expenses incurred on behalf of the member.


Recognition of Trade Unions and Collective Agreements

Section 54 provides that, an employer, group of employers or an organization of employers in the public sector shall recognize a Trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees employed by the group of employers or the employers who are members of the employers’ organization.

The minister may in consultation with the Board, publish a model recognition agreement. Should there be a dispute as to the right of the trade union to be recognized for the purpose of collective bargaining in accordance with this section or cancellation of the recognition agreement; the trade union may refer the dispute for conciliation in accordance with part VIII.

If the dispute is not settled in the conciliation, the trade union may refer the matter to The Industrial Court under the certificate of urgency which shall take into account the sector in which the employee operates and the model recognition agreement published by the Minister.

In section 55, a recognition agreement shall provide for trade union members in a workplace to elect from among themselves trade union representatives in accordance with the constitution of the trade union who shall be entitled to represent members in grievance and disciplinary hearings at the workplace and also to perform any other functions specified in the recognition agreement or the constitution of the trade union.

In section 56, a recognition agreement shall provide for the employer to allow a trade union reasonable access to his or her premises for officials or authorized representatives of the trade union to pursue the lawful activities of the trade union, that shall include but not be limited to recruiting members for the union, holding meetings with trade union members and other members outside the normal working hours.

Section 58 allows an employer, group of employers or employers’ organization and trade union to conclude a collective agreement providing for the conciliation of any category of trade disputes identified in the collective agreements by an independent and impartial conciliator appointed by an agreement between the parties; and the arbitration of any category of trade disputes identified in the collective agreement by an independent and impartial arbitrator appointed by the agreement between the parties.  Every collective agreement is required to be submitted to the Industrial Court for registration within fourteen days of its conclusion.

 

 

Dispute Resolution

Section 62 requires any labour dispute to be reported in the prescribed form and manner, by or on behalf of a trade union or employers’ organization that is a party to the dispute; and by the authorized representative of an employers’ organization or trade union on whose behalf the trade dispute is reported. A trade dispute concerning the dismissal or termination of an employee shall be reported to the Minister within, ninety days of the dismissal; or any longer period that the Minister, on good cause, permits.

Within 21 days of a trade dispute being reported to the Minister as specified under section 62 the Minister shall appoint a conciliator to attempt to resolve the trade dispute unless the conciliation procedure in an applicable collective agreement binding on the parties to the dispute have not been exhausted; or a law or collective agreement binding upon the parties prohibits negotiation on the issue in dispute.

If a trade dispute is resolved in conciliation the terms of the agreement shall be recorded in writing; and signed by the parties and the conciliator. A signed copy of the agreement shall be lodged with the Minister as soon as is practicable. A trade dispute is deemed to be unresolved after conciliation, under section 70, if the conciliator issues a certificate that the dispute has not been resolved by conciliation; or thirty days period from the appointment of the conciliator, or any longer period agreed to by the parties, expires.

Under section 71 the Minister may appoint a committee of inquiry to investigate any trade dispute and report to the Minister. The Minister may also, section 72, delegate his powers under this Part to the Labour Commissioner or the Chief Industrial Relations Officer.

 

 

 


Adjudication of Disputes

If a trade dispute is not resolved after conciliation, a party to the dispute, under section 73, may refer it to the Industrial Court in accordance with the rules of the Industrial Court.

A trade union may refer a dispute to the Industrial Court under section 74 as a matter of urgency if the dispute concerns the recognition of a trade union in accordance with section 66; a redundancy; employers and employees engaged in an essential service.

The Arbitration Act shall not apply to any proceedings before the Industrial Court in consistency with section 75. 


Strikes and Lockouts

A person may participate in a strike or lockout if the trade dispute that forms the subject of the strike or lockout concerns terms and conditions of employment or the recognition of a trade union; the trade dispute is unresolved after conciliation; a seven days written notice of the strike or lockout has been given to the other parties and to the Minister by the authorized representatives.

Under section 77 a party to the dispute that has received notice of a strike or lockout may apply to the Industrial Court to prohibit the strike or lockout as a matter of urgency if the strike or lockout is prohibited under this part; or the party that issued the notice has failed to participate in conciliation in good faith with a view to resolving the dispute. This is a dangerous section since it will make it almost impossible for employees or employers to exercise strike or lockout indefinitely. For the purposes of this section an employee/employer engages in a sympathetic strike/lockout in support of a trade dispute to which the employee/employer is not a party; or in respect to the employee is not represented by an employers’ organization that is party to the dispute, or in respect to the employer in respect of which the employer is not represented by an organization that is part to dispute.

In this Part, a ‘Protected strike’ means a strike that complies with the provisions of this part and ‘protected lock-out’ means a lock-out that complies with the provisions of this part.

Section 80 stipulates that an employee who takes part in a strike that is not in compliance with this Act is deemed to have breached the employee’s contract and is liable to disciplinary action; is not entitled to any payment or any other benefit under the Employment Act during the period the employee participated in the strike.

Section 81 defines “essential services” to mean, a service the interruption of which would probably endanger the life of a person  or health of  the population or any part of the population. Under subsection (3)            There shall be no strike or lock-out in an essential service.


Miscellaneous Provisions

A trade union, employers’ organization or federation which is convicted for an offence under this Act shall be liable to pay fines not exceeding forty thousand shillings.

A person who commits an offence under this Act shall on conviction be liable to a fine not exceeding ten thousand shillings.

Section 84 repeals the Trade Union’s Act and the Trade Disputes Act are repealed.

Labour Institutions Act Review

September 24, 2010

A REVIEW OF THE LABOUR INSTITUTIONS ACT, 2007

Paul Ogendi

Introduction

 

This is an Act of Parliament to establish labour institutions, to provide for their functions, powers and duties, and to provide for other matters connected thereto.

The short title of the Act may be cited as the Labour Institutions Act, 2007 and shall come into force on such date as the minister may by notice in the Gazette appoint.

Pursuant to section 4 the Act shall not apply to the armed forces or to the reserve as respectively defined in the Armed Forces Act; the Kenya Police; the Kenya Prisons Service, or the Administration Police force; and the National Youth Service. Subject to the foregoing, the Act shall bind the government.


The National Labour Board

The Board is established under section 5 of the Act.

It consists of: -

a chairperson and deputy chairperson, the secretary-general, chief executive of the most representative federation of trade unions, other two persons appointed from nominees of the most representative federation of employers organization dealing with labour matters and federation of trade unions; and not more than two other independent members the Director of Employment; the Director of Micro and Small Enterprise Development; the Director of Occupational Safety and Health Services; the Director of Industrial Training; the Registrar of the Industrial Court; and the Registrar of Trade Unions..

The functions of the board are: -

to advice the minister on all matters concerning, employment and labour; legislation affecting employment and labour; any matter relating to labour relations and trade unionism; any issue arising from the International Labour Organization and the International Labour Organization Convention; codes of good practice; any issues raised by an international or regional association of states of which Kenya is a member; systems of labour inspection and the administration of the Labour Acts; any aspect of public employment services, vocational guidance, vocational training and the employment of persons with disabilities; the formation and development of policies designed to promote the granting of paid educational leave to workers for the purpose of training, trade union social and civic education and trade union education; the general state of employment, training and manpower development in the country; productivity measurement and improvement; the appointment of wages councils; the appointment of the Industrial Court; the setting of compensation benefits in accordance with the provisions of the Work Injuries Benefits Act; the registration, suspension and deregistration of trade unions and trade unions and employers organization and any other matter related to the Board’s functions.

The Board may also advice the government on the issuing of immigration entry permits and work permits to non-citizens; and advice the Chief Justice on the assignment of Judges to the Industrial Court and the rules of the Industrial Court.

In doing its job the board shall, in consultation with the minister, establish, Immigration Entry Permits Committee; National Manpower Development Committee; Trade Dispute Committee; Productivity Committee; and such other committees or panels as are necessary for the performance of the Board’s functions.

Under section 10 the commissioner shall be the secretary to the board.

The Industrial Court

 

The Industrial Court is established under section 11 of the Act.

Under subsection (2) the composition of the Industrial Court shall consist of: – 

a Principal Judge and as many judges as the President, acting on the advice of the Judicial Service Commission, may consider necessary; and members of the Industrial Court appointed in accordance with section 17. A Judge sitting with two members of the Industrial Court shall constitute the Industrial Court

Under subsection (4) A person shall not be eligible to hold office as the Principal Judge of the Industrial Court unless the person is an advocate of the High Court of Kenya of not less than  ten years standing; and has considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Kenya. In the case of a judge a seven years experience is required.

In terms of jurisdiction section 12 (1) provides that: -

the Industrial Court shall have exclusive jurisdiction to hear, determine and grant any appropriate relief in respect of an application, claim or complaint or infringement of any of the provisions of this Act or any other legislation which extends jurisdiction to the Industrial Court, or in respect of any matter which may arise at common law between an employer and employee in the course of employment, between an employee or employer’s organisation and a trade union or between a trade union, an employer’s organisation, a federation and a member thereof.

Under section 12 the Industrial Court may review the performance or purported performance of any function provided for in any written law or any act or omission of any person or body in terms of any written law on any grounds that are permissible; any decision taken or any act performed by the State in its capacity as employer on such grounds as are permissible in law; or deal with all matters necessary or incidental to performing its functions in accordance with this Act or any other law.

The tenure of judges is secured under section 13 (2) which provides that a judge of the Industrial Court shall hold office until the judge retires; resigns from office; is removed from office by operation of the law; or dies.

Under section 14 an order of the Industrial Court made under this Act directing the payment of money or the delivery of any property shall be enforceable by execution as provided by rules made under this Act; or directing the performance or non-performance of any act shall be enforceable by contempt proceedings in the Industrial Court.

 

Section 15 states that if the Industrial Court finds that a dismissal is unfair, the Industrial Court may order the employer to reinstate the employee from any date not earlier than the date of dismissal; or re-engage the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or pay compensation to the employee to a maximum of twelve months wages.

Section 18 (1) Whenever it appears to be expedient to do so because of the nature of a trade dispute, a judge may, after consulting the parties to a dispute, appoint two assessors to assist in the determination of any trade dispute before that judge.

There is established the Rules Board for the Industrial Court under section 21.

Section 22 (1) Proceedings of the Industrial Court shall be carried on in open court. Notwithstanding subsection (1), the Industrial Court may exclude the members of the general public or specific persons or categories of persons from the proceedings in any case where the High Court could have done so.

Under section 24 (1) The Industrial Court and a Committee of Inquiry shall not be bound by the rules of evidence in civil or criminal proceedings

Section 25 (1) The Industrial Court or a Committee of Inquiry may not include in any publication relating to any award, judgment determination, finding, report or other statement, any information disclosed during the course of proceedings under this Act by any employer, employee, trade union, employers’ organisation or federation if the information was made known to the Industrial Court or Committee of Inquiry only by the disclosure; and the person who made the disclosure requested, during the proceedings that the information be withheld from publication.

Under section 26 the Industrial Court shall have powers to review its orders, awards or judgements. Section 27 (1)            any party to any proceeding before the Industrial Court may appeal to the Court of Appeal against any final judgment, award or order of the Industrial Court. Appeals from a judgement, award, or decision of the Industrial Court shall only lie on matters of law.

Committee of Inquiry

Section 28 allows the Minister by notice in the Gazette, to appoint a Committee of Inquiry to inquire into any matter which appears before the Minister to be connected with or relevant to any trade dispute or to trade disputes in general, or to trade disputes of any type or class, whether or not such dispute has been reported the Minister under this Act.

Under section 29, the Committee is required to submit a report on the matter to the Minister.


Labour Administration and Inspection

 

Subject to the laws governing the public service, there shall be appointed under section 30, a Labour Commissioner; a Director of Employment; and such other officers as may be necessary for purposes of administration of laws relating to labour and employment.

The Minister under section 31 appoints the Registrar of Trade Unions who shall be responsible for, the registration and regulation of trade unions, employers’ organizations and federations registered under the Labour Relations Act.

Section 32 allows the Labour Commissioner in writing delegate to any labour officer, any of the Commissioner’s powers, functions and duties. The same applies to the Director of Employment and the Registrar of Trade Unions. Every authorized officer shall be issued with a certificate of authority by the delegating person.

An authorized officer shall, on occasion of inspection or visit authorized by or under the provisions of this Act, notify the employer or his representative of his presence for that purpose at the first practicable opportunity, unless it is considered by the authorized officer concerned that the notification may be prejudicial to the performance of his duties or otherwise to defeat the object thereof.

Under section 35 the powers of A labour officer may, for the purpose of monitoring or enforcing compliance with any labour law: – require the production of wage sheets or other employment records kept by an employer, and records of payments made to outworkers by persons giving out work, and any other such records as are required by any labour law or wages order to be kept by employers, and to inspect and examine those sheets or records and copy any material part thereof; require any person giving out work and any out-worker to give any information which  is in that person’s  power to give with respect to the names and addresses of the persons to whom the work is given or from whom the work is received and with respect to the payments to be made for the work; inspect and copy any material part of any list of outworkers kept by an employer or other person giving out work to outworkers; and examine, either alone or in the presence of any other person, with respect to any matter under Part VI, any person whom the labour officer has reasonable cause to believe to be or to have been an employee to whom a wages order applies or applied or the employer of any such person or a servant or agent of the employer employed in the employer’s business, and to require every such person to be so examined and to sign a declaration of the truth of the matters in respect of which he is so examined: Provided that no person shall be required to give any information that incriminates him; at all reasonable times, enter, inspect and examine  any land or building, other structure, whether permanent or temporary on or in which the labour officer has reasonable ground to believe that an employee is residing or is employed, and may make such inquiry, inspection or examination as may be necessary to enable the labour officer to determine whether the provisions of this Act or any other labour law are being complied with; at  all reasonable times, require  an  employer  to  produce an employee employed by him and a document relating to the employment of any employee, and may require an employee to produce any document relating to the employee’s employment; examine and make copies of a register, record, book or other document relating or appearing to relate to employment, and seize any register, record, book or other document which he has reasonable ground to believe to be or to contain evidence of an offence under this Act or any other labour law; enter, inspect and examine all latrines and other sanitary arrangement or water supply; inspect and examine all food provided or appearing to be provided for the  employees, and take samples thereof in duplicate, in the presence of the employer or the employers representative which samples shall be sealed and one sample so sealed shall be left with the employer. order that all buildings and premises where employees are housed or employed be kept in a clean and sanitary condition; without  prejudice  to the  powers of   the Attorney-General, institute  proceedings in  respect  of any contravention of any  provision  of  this  Act or for any offence committed by an employer under this Act or any other labour law; institute an appeal on behalf of any employee in any civil proceedings by an employee against his employer in respect of any matter, thing or cause of action arising out of or in the course of the employment, whether such civil proceedings are contemplated or instituted by the employee himself or are civil proceedings ordered by a magistrate; without prejudice to the institution of proceedings in respect of any offence, to take into custody and return to his parent or guardian, or other person whom he is satisfied has for the time being the charge of or control over him, any child whom he reasonably suspects to be employed in contravention of any of the provisions of the law relating to employment. Where a labour officer seizes a register, record, book or other document in the performance of the labour officer’s duties subsection (1)(g), the labour officer shall give to the employer or his representative a receipt in respect of such register, record, book or other document in the prescribed form.

Section 36 contains the powers of the employment officer and states: – An authorised officer may, for the purposes of collecting labour market data, exercise the powers conferred upon a labour officer by section 25(1) (a) to (c), (f) and (g).  Where an employment officer seizes a register, record, book or other document in the performance of the employment officers’ duties, the employment officer shall give to the employer or his representative a receipt in respect of such register, record, book or other document in the prescribed form.

Powers of a medical officer under section 37 states  A medical officer may, for the purposes of this Act, exercise the powers conferred upon a labour officer by section 35(1) (e) to (i) inclusive and may, in addition order an employee who, in  the  opinion of the medical officer, is  sick and  for whom the conditions prevailing at the place of employment are not conducive to the rapid recovery of his health or strength, to return to the place of work or to proceed to hospital, and in that case the employer shall at the earliest opportunity and at his own expense send the employee to the place of work or to a hospital, as the case may be; condemn any food provided for employees which, in the opinion of the medical officer, is unfit for human consumption, and all food so condemned shall be destroyed forthwith in the presence of the medical officer; order at the expense of the employer, such variety of  food for an employee as he may deem necessary; Provided that the cost of the food supplied under any such order shall not exceed the normal cost of rations ordinarily supplied by employers to employees in that district at the time; condemn  any  building  or  other  structure whether  permanent or temporary in which an employee is  residing or is employed, if in the opinion of the medical officer it is unfit by reason of its construction, situation or condition for the purpose to which it is put, whereupon it shall not be used for that purpose until a medical officer has subsequently certified that it may be used for that purpose; order the employer to supply an employee working under a written contract of  service with one or more blankets or with clothing, and in that case, the reasonable cost thereof shall be paid by the employee and may be deducted from the remuneration for the employee, and until the cost has been paid by, or deducted from, the wages of the employee, the blanket or blankets or clothing supplied shall remain the property of the employer; or inspect all drugs and medicine provided for the use of employees.

A person who willfully obstructs or hinders an authorized officer, or neglects or fails to comply with any requirement or order made by or given by an authorized officer in pursuance of any power conferred by this Act or any rules made under this Act commits an offence.

The Act under section 39 creates an offence by a company. It states where an offence under this Act is committed by a company, association or body of persons, corporate or incorporate or by a public body, and the offence is proved to have been committed with the consent or connivance, or to have been facilitated by any neglect on the part, of any director, chairman, manager, secretary or other officer   employed by such company or association or body of persons or public body, that director, chairman, manager, secretary or other officer shall be deemed to have committed an offence.

Section 40, Where an entry is required by this Act to be made in a register or written record, the entry made by an employee or on his behalf shall, be admissible as evidence of the fact therein stated.

Section 41(1), any authorised officer or other person who is or has been engaged in the administration of this Act, who discloses, except for the purposes of the exercise of his functions or when required to do so by a court or under any written law, any information acquired by him in the exercise or purported exercise of his functions under this Act to any other person commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.

Unders section 42 (1) The Commissioner for Labour and the Director of Employment shall, not later than the thirtieth of April in each year, prepare and publish an annual report of the activities undertaken in their respective departments.


Wages Council

 

Section 43 establishes a general wages council and an agricultural wages council. By notice in the Gazette he may specify, the Terms of Reference of the wages council, the names of persons appointed, period they are required to investigate and prepare a report for the Minister and invite representation from interested parties.

The functions of the wages council under section 44 are to investigate the remuneration and conditions of employment in any sector by inviting and considering written and oral representations, in the prescribed manner, from interested parties and by making recommendations to the Minister on minimum wage remuneration and conditions of employment.

Before publishing a wage order in the gazette, the Minister shall publish a notice specifying that the Minister proposes to make a wage order, specifying where copies of a draft of the wage order can be obtained and inviting comments within a reasonable period on the draft wage order, which may not be less than 30 days from the publication of the notice, Section 45. (This is important in order to allow fairness and enough time for compliance by those affected.) Under subsection (6) if objections are received, the Minister shall refer the objections to the proposed wages order and any other comments submitted within the specified time period to the wages council for consideration; and may request the Board to consider and advice on the objections. 

Section 48 identifies that, notwithstanding anything contained in this Act or any other written law, the minimum rates of remuneration or condition of employment established in a wage order constitutes a term of employment of any employee to whom the wages order apply and may not be varied by an agreement.

Section 49 confers powers to the labour officer to institute proceedings for the recovery of sums due from an employer to an employee by reason of the failure of the employer pay to the employee the statutory minimum remuneration; or provide an employee with the conditions of employment prescribed in the order.

Pursuant to section 51 for the purpose of calculating the amount due to an employee employed in any occupation in respect of which a wages order has been made, the employee shall be deemed to have been employed for all the time during which the employee was present on the premises of the employer if it is proved to the satisfaction of the court that the employee was required to be present by the employer:

Under section 52 (1) where an employee to whom a wages order applies is an apprentice or an indentured learner, his employer shall not receive directly or indirectly from him, on his behalf or on his account, any payment in the form a of premium:

Section 53 requires employers of employee to whom a wage order applies to keep such records as are necessary to show whether or not the employer is complying with the wage order. The records must be retained for at least three years after the date of the last entry therein.

Under section 54 where the immediate employer of an employee is himself in the employment of another person and that employee is employed on the premises of that other person, that other person is for the purposes of criminal liability deemed to be the employer of that employee jointly with the immediate employer.


Employment Agencies

 

All registrations of employment agencies are done under Section 55 through an application to the Director. Any refusal by the Director to grant an application must be supported by reasons for such decision. He may cancel the registration or vary the terms or conditions of any certificate of registration. Any person aggrieved by the decision of the director under the enabling section may appeal against such decisions to the labour court.

Employment agencies are required to charge and receive not more than the amount prescribed for any particular area and class of business. Section 58 allows without notice and at reasonable time within the day, an employment officer to enter upon the premises of an employment agency for the purposes of conducting any search therein where there are reasonable grounds for believing that such entry or search is necessary to the prevention, investigation or detection of an offence in the Act.

Under section 60 the Minister may make regulations necessary for the purpose of giving effect to, or for the better administration, of this Part. Regulations made under subsection (1) may provide for the form in which an application is to be made for a certificate of registration; the fee to be paid for a certificate of registration or copies thereof; the fees which may be charged in respect of the business of an employment agency; the surrender of certificates of registration where the conditions thereof are to be varied or where such certificates are to be cancelled; the records to be kept in respect of an employment agency; the qualification of the proprietor or persons running the employment agency; and the nature and form of security to be given by the proprietor of the employment agency for any recruitment of employees under this Part.


Miscellaneous Provisions

 

Section 61 outlines the general penalty for provisions where there is no penalty; a fine not exceeding fifty thousand or three months imprisonment or both is imposed.

The Minister under section 62 may, after consultation with the Board, make rules for the better carrying into effect of the provisions of this Act, and in particular but without prejudice to the generality of the foregoing may prescribe anything which under this Act is to be or may be prescribed; or provide for the powers of a wages council to enforce the attendance of witnesses and to take evidence on oath or otherwise on any matter concerned with the subject of an inquiry under this Act;

This Act repeals the Wages and Conditions of Employment Act. In addition, the supremacy of this Act is secured under section 64 where any written law relating to the regulation of labour matters shall have effect subject to modification as may be necessary to give effect to this Act, and where the provisions of any law conflict with the provisions of this Act, the provisions of this Act shall prevail (except the provisions of the constitution).

Employment Act Review

September 24, 2010

A REVIEW OF THE EMPLOYMENT BILL, 2007

Paul Ogendi

Introduction

This is an Act of Parliament to repeal the Employment Act by declaring and defining the fundamental rights of employees, providing basic conditions of employment of employees, regulating employment of children, and providing for matters connected with the foregoing.

Section 2 defines a ‘contract of service’ as an agreement, whether oral or in writing, and whether expressed or implied to employ or to serve as an employee for a period of time. It includes a contract of apprenticeship and indentured learnership but does not include a foreign contract of service.

Section 3(2) exempts the armed forces, or the reserve, the Kenya police, Kenya prisons service, administration police force, National Youth Service and an employer and the employer’s dependants where the dependants are the only employees in a family.

There are special categories of employed person whose terms and conditions of employment are governed by special arrangements. The arrangements in question will only apply if they afford protection that is equivalent to or better than that part of the Act from which those categories are being excluded. Therefore, any agreement to relinquish vary or amend the terms of the Act is null and void.

In terms of operations, the Act will come into operation on a date to be appointed by the Minister by notice in the Gazette.

General Principles

 

The Act identifies, broadly, several general principles under which it is to be applied. These are, prohibition of forced labour, prohibition of discrimination in employment, and prohibition of sexual harassment.

Under the Act no person shall use or assist any other person in recruiting, trafficking or using forced labour. This is as provided for under section 4(1) of the Act. However, forced labour does not include work or service exacted by virtue of compulsory military service laws for works of purely military character.  Notwithstanding under this provision the recruitment of children in the military is forced labour. The penalty for breach of the principle is a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding two years or both.  

Prohibition of discrimination in employment is contained under section 5. The Minister, Labour Officers, and the Industrial Court have a duty to promote equality of opportunity in order to eliminate discrimination in employment. In addition, employers are also obliged to eliminate the discrimination in any employment policy or practice. However, it is not discriminative to take affirmative action measures consistent with the promotion of equality or the elimination of discrimination in the work place; distinguish, exclude or prefer any person on the basis of an inherent requirement of a job; employ a citizen in accordance with the national employment policy; or restrict access to limited categories of employment where necessary in the interest of state security.

Under section 5 (6) any proceedings where a contravention of this section is alleged, the employer bears the burden of proving the discrimination did not take place as alleged, and that the discriminatory act is not based on any of the grounds specified in this section. The onus will always lie on the employer unless expressly shifted. This provision simply realizes that the employer and not the employee who is in a better position to prove before the court any matter. The employer controls most of the evidential materials including policy documents and records.

Sexual harassment is prohibited under section 6. It can be in form of directly or indirectly requesting employee for sexual intercourse, sexual contact, or any other form of sexual activity that contains an implied or express promise of preferential treatment in employment, threat of detrimental treatment in employment, threat about the present or future employment status of the employee, use of language whether written or spoken of a sexual nature, and use of visual materials of a sexual nature. Section 6 (d) is surely a recipe for floodgate of malicious cases since ‘showing of a physical behavior of a sexual nature is relative’. The legislator ought to clearly legislate on this part to avoid misuse. One way may be to provide for provisions against those who may want to misuse this provision.

Employers of twenty or more employees are required under section 6 (2) after consulting with the employees or their representatives if any to issue a policy statement on sexual harassment. The employer is empowered to take disciplinary measures against any person under the employer’s direction, who subjects any employee to sexual harassment. This provision assumes that the victims of sexual harassments are the employees. There are cases where employers are victims. It is also not clear what sort of disciplinary measures are to be used. This is very dangerous and liable to gross abuse.


Employment Relationship

 

All contracts of service exceeding three months cumulatively or aggregately are required to be in writing. Under section 9 (2) it is the responsibility of the employer to cause the contract to be drawn up stating particulars of employment and ensure that the contract is consented to by the employee in accordance with subsection (3). For purposes of signifying his consent an employee may sign his name or imprint thereon an impression of his thumb or one of his fingers in the presence of a person other than his employer.

An employer is required to display a statement in the prescribed form of the employees’ rights under this Act in a conspicuous place, accessible to all employees as provided by section 15. This is to ensure the employees know and understands their rights. This is also to prevent rights abuse. Section 9 (4) requires that where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of service, the employer shall have the contract explained to the employee in a language that the employee understands. This ensures that there is a valid and binding contract between the parties.

Where an employer does not give an employee a statement as required by section 10, 12 or 13 or an itemised pay statement as required by section 20, the employee may file a complaint with the labour officer and the complaint shall be deemed to be complaint filed under section 71.

In the event of a breach a person shall be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or both.


Protection of Wages

 

This section protects the employees’ wages. Under section 17, an employer is required to pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service directly, in the currency of Kenya. The rationale of this section is to try as much as possible to ensure that the employee is paid his/her wages in full. An employer shall not pay wages to an employee in any place where intoxicating liquor is sold or readily available for supply, except in the case of employees employed to work in that place. Such places are not appropriate because mat be the employee is intoxicated and therefore vulnerable to be given less amount without knowing. The other possibility is to discourage the spending of the wages on liquor.

Whenever an attachment has been issued against the property of an employer in execution of a decree against him, the proceeds realised in pursuance of that execution shall not be paid by the court to a decree-holder until a decree obtained against the employer in respect of the wages of employees has been satisfied to the extent of a sum not exceeding six months’ wages of those employees. Section 17 (6) is a good provision to pay decree-holder for a sum not exceeding six months’ wages. What about the other months beyond the six months?

Under section 17 (11), no employer shall limit or attempt to limit the right of an employee to dispose of his wages in a manner which the employee deems fit, nor by a contract of service or otherwise seek to compel an employee to dispose of his wages or a portion thereof in a particular place or for a particular purpose in which the employer has a direct or indirect beneficial interest. This will curb payments in kind to be offset by the employer on the employee’s wage. It has been a practice that the employer forces you to take something else other than money in the name of paying your wage.

Upon summary dismissal the employee is to be paid all moneys, allowances and benefits due to him up to the date of dismissal {section 18(4)}. Upon such dismissal, the employer shall within seven days deliver to a labour officer in the district in which the employee was working a written report specifying the circumstances leading to, and the reasons for the dismissal {section 18(5)(b)}. The object here is to monitor and ensure, through labour officers, all moneys, allowances and benefits are paid before the dismissal of an employees.

No wages is payable to an employee in respect of a period during which the employee is detained in custody or is serving a sentence of imprisonment imposed under any law, section18 (6).

Deductions are allowed under section 19. They can be in form of amounts paid to the employee in error as wages in excess of the amount of wages due to him, and amounts or deduction authorized by law. The deductions made by an employer from the wages of his employee at any one time shall not exceed two thirds of such wages or such additional or other amount as may be prescribed by the Minister either generally or in relation to a specified employer or employee or class of employers or employees or any trade or industry {section 19 (3)}. Any deductions exceeding two thirds of a person’s wage is detrimental and should not be encouraged.

Section 19 (5) an employer who fails to comply with the provisions of subsection (4) (it require payment of certain deductions in the required time period and other requirements specified in the law, agreement court order or arbitration as the case may be) commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both. Section 19 (6) goes on to provide where such proceedings are brought under subsection (5) in respect of failure by the employer to remit deductions from an employees remuneration, the court may, in addition to fining the employer order the employer to refund to the employee the amount deducted from the employees wages and pay the intended beneficiary on behalf of the employee with the employer’s own funds. What about companies with corporate status? We cannot have a private individual paying for the sins of another legal person. Therefore this provision is unreasonable unless it is a private business, sole proprietorship or domestic services.

Under Section 20 and 21 statements on statutory deductions are required to be given by the employer. To inform those deducted of the particulars and amounts. Without this it would be very difficult to monitor genuine statutory deductions from fictitious deductions.

Under section 23(1) an employer who is not incorporated or resident in Kenya may be required by the Minister to pay a bond assessed at the equivalent of one month’s wages for all employees employed or to be employed by the employer.

Section 24(1) when the death of an employee from any cause whatsoever is brought to the notice or comes to the knowledge of the employee’s employer, the employer shall as soon as practicable thereafter, give notice of the death in the prescribed form to the labour officer or, if there is no labour officer, to the district commissioner of the district in which the employee was employed. Where an employee is, during the course of his employment killed or incapacitated by injury for a period exceeding three days, his employer shall as soon as practicable, send to the labour officer or, if there is no labour officer to a district commissioner a report in the prescribed form {section 24(5)}. The requirement of a notice ensures that all deaths are notified. However under section 24, the employer is obligated to report any death even those unrelated to employment as long as it comes to his knowledge.

 

An employer who contravenes the provisions of this Part commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or to both and shall be required to repay any remuneration wrongfully withheld or wrongfully deducted from the employee. An employee may file a complaint under this part to a labour officer at a period not later than three years after the allegedly unlawful deduction has been made.


Rights and Duties in Employment

 

The Rights and duties set out in this Act constitutes basic minimum terms and conditions of contract of service, section 26 (1). Working hours has to be regulated in accordance with this Act.

Section 28 (1) entitles an employee after every twelve consecutive months of service with his employer to not less than twenty-one working days of leave with full pay and where employment is terminated after the completion of two or more consecutive months of service during any twelve months’ leave-earning period, to not less than one and three-quarter days of leave with full pay, in respect of each completed month of service in that period, to be taken consecutively.  An employer may, with the consent of the employee divide the minimum annual leave entitlement under sub-section (1) (a) into different parts to be taken at different intervals.

Section 29      (1) entitles a female employee to a three months maternity leave with full pay. On expiry of a female employee’s maternity leave as provided in subsections (1) and (3), the female employee shall have the right to return to the job which she held immediately prior to her maternity leave or to a reasonably suitable job on terms and conditions not less favourable than those which would have applied had she not been on maternity leave. A female employee who seeks to exercise any of the rights mentioned in this section shall, if required by the employer, produce a certificate as to her medical condition from a qualified medical practitioner or midwife. A male employer shall be entitled to two weeks paternity leave with full pay. This is important because it realizes that new born babies are supposed to be cared for by both parents, apart from giving assistance to the wife.

 Section 30 (1) provides that after two consecutive months of service with his employer, an employee shall be entitled to sick leave of not less than seven days with full pay and thereafter to sick leave of seven days with half pay, in each period of twelve consecutive months of service, subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf in charge of a dispensary or medical aid centre. The provision is very expensive to apply.

Section 31(1) provides that an employer shall at all times, at his own expense, provide reasonable housing accommodation for each of his employees either at or near to the place of employment, or shall pay to the employee such sufficient sum, as rent, in addition to the wages or salary of the employee, as will enable the employee to obtain reasonable accommodation. Housing Allowance?

                 

Section 32 provides that an employer shall provide a sufficient supply of wholesome water for the use of his employees at the place of employment and, as the case may be, within a reasonable distance of any housing accommodation provided for the employees by the employer. The employer I believe is not a supplier rather he is supposed to ensure that water is accessible to his employees.

 

Under Section 33 (1), an employer shall, where the provision of food has been expressly agreed to in or at the time of entering into a contract of service, ensure that an employee is properly fed and supplied with sufficient and proper cooking utensils and means of cooking, at the employer’s expense. I am not very sure ‘properly fed’ is the right word ‘reasonably fed’ will do better.

 

Section 34 (1) states that subject to subsection (2), an employer shall ensure the provision sufficient and of proper medicine for his employees during illness and if possible, medical attendance during serious illness. subsection (2) imposes a duty on the employer to take all reasonable steps to ensure that he is notified of all the illnesses of an employee as soon as reasonably practicable after the first occurrence of the illness. What is the purpose of medical insurance schemes? NHIF? To what extent is the employer obligated? It shall be a defence to a prosecution for an offence under subsection (1) if the employer shows that he did not know that the employee was ill and that he took all reasonable steps to ensure that the illness was brought to his notice or that it would have been unreasonable, in all the circumstances of the case, to have required him to know that the employee was ill. However, subsection (4) of this section states that the above shall not apply where, the illness or injury to the employee was contracted during a period when the employee was absent from his employment without lawful cause or excuse; the illness or injury is proved to have been self inflicted; medical treatment is provided free of charge by the Government or under any insurance scheme established under any written law which covers the employee.

 

Termination and Dismissal

 

Under a contract of service, termination and dismissal is provided for under section 35 (1). Under this section where the contract is to pay wages daily, it is terminable at the close of any day without notice. When the payment is periodically at intervals of less than one month, a contract is terminable by either party at the end of the period next following the giving of notice in writing. When the interval is one month or exceeding, the contract is terminable by either party at the end of the period of 28 days next following the giving of notice in writing. Either party may terminate the contract without notice upon payment to the other party of the remuneration which would have been earned by that other party, or paid by him as the case may be in respect of the period of notice required to be given under the corresponding provisions of that section. The substitute of a pay is a notice.

Under subsection (2) the Act states that subsection (1) shall not apply in the case of a contract of service whose terms provide for the giving of a period of notice of termination in writing greater than the period required by the provision of this subsection which would otherwise be applicable thereto. Consequently under subsection (3)            if an employee who receives notice of termination is not able to understand the notice, the employer shall ensure that the notice is explained orally to the employee in a language the employee understands. For illiterate employees.

Perhaps one fundamental plus of this Act is section 37 (1) (i) and (ii), where a contract of service can be converted from casual employment to term contract; when the period of continuous working days in the aggregate to the equivalent of not less than 1 month or the work cannot be reasonably completed within 3 months. 

When an employee gives notice of termination of contract and the employer waives part thereof, he will be required to pay the period of notice not served. In case of employments on journey the contract may be extended upon expiry. This is continue the relationship until the employee comes back from the journey, as long as he is doing official business.

An employer under section 40 cannot terminate an employee on account of redundancy unless he notifies the union to which the member belongs, he notifies the employee personally in writing and the labour officer. Why the notification? The conditions shall however not apply when the services are terminated on account of insolvency. Why the exception?

If the ground of termination is misconduct the employee shall be entitled to notification and hearing. He may have another employee or a shop floor union representative of his choice present during this explanation. The above requirement under section 41 shall not apply where the termination of employment is still probationary contract (section 42).

Section 43 recognizes that in any claim relating to the termination, the employer will be required to prove the reasons for termination and whenever he fails it shall be deemed to be unfair within the meaning of section 45.

An employer may dismiss an employee summarily under section 44 when the employee has by his conduct indicated that he has fundamentally breached his obligations arising under the contract of service.

Any complaints are required to be lodged in the period of three months and no advocate shall represent a party in the proceedings before a labour officer. What happened to the right to representation under section 77 of the constitution? The constitution is supreme and will prevail.

Section 48 provides that in any complaint made under section 47, no advocate shall represent a party in the proceedings before a labour officer, but any party may be assisted or represented by an official of a trade union or an official of an employer’s organisation notwithstanding the fact that the official is an advocate. What is the rationale? To give trade unions more teeth or relevance?

And section 50 states, in determining a complaint or suit under this Act involving wrongful dismissal or unfair termination of the employment of an employee, the Industrial Court shall be guided by the provisions of section 49.

Finally, section 51 requires that the employer issue an employee with a certificate of service upon the termination of his employment for a period not less than 4 weeks. Under subsection (3) an employer who wilfully or by neglect fails to give an employee a certificate of service in accordance with subsection (1), or who in a certificate of service includes a statement which he knows to be false, commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both. Some employers are very notorious in victimizing there former employees due to personal differences.


Protection of Children

 

Section 52 interprets “employment” to means employment of a child in a situation where the child provides labour as an assistant to another person and his labour is deemed to be the labour of that other person for the purposes of payment; the child’s labour is used for gain by any person or institution whether or not the child benefits directly or indirectly; and there is in existence a contract for service where the party providing the service is a child whether the person using the services does so directly or by agent.

The Act under section 53 prohibits any person from employing a child in any activity which constitutes worst form of child labour, a complaint may be lodged to a labour officer, or a police officer of the rank of an inspector or above.

Section 55 (1), a labour officer may, by notice in writing served upon an employer, terminate or cancel any contract of service, other than a deed of apprenticeship or indentured learnership lawfully entered into under the provisions of the Industrial Training Act, which has been entered into by a child with the employer, on grounds that, in the opinion of that labour officer, the employer is an undesirable person, or that the nature of the employment constitutes worst forms of child labour or for any other cause which may be prescribed.

Subsection (2) a labour officer may, by notice in writing served upon any person, prohibit that person from employing a child in any class or description of employment specified in the notice, on grounds that, in the opinion of the labour officer, that person is an undesirable person, or that the nature of the employment constitutes worst forms of child labour or for any other cause which may be prescribed.

Subsection (4), an employer, employee or person who is aggrieved by a notice given under subsection (1) or subsection (2) may, within thirty days after the date of service thereof, appeal in writing against that notice to the Industrial Court which may confirm or set aside the notice and the decision of the court shall be final.

A child of less than thirteen years is not to be employed whether gainfully or otherwise, however, a child of between 13 and 16 may be employed to perform light work not affecting his health or education. The Act further Prohibits written contracts for child between thirteen and sixteen years of age and the attending to machinery of such children. In addition, the child under such employment is not to work within the hours 6.30 p.m. – 6.30a.m.; an authorized officer may require a child in employment to be medically examined.

Concerning the determination of age, section 63 (1) states if, during the hearing of a charge for an offence under this Act it is alleged that any person was at the date of the offence of, over or under a particular age, the court hearing the charge shall, after such inquiry as it considers necessary and after hearing any evidence which may be tendered by any party to the proceedings, determine the age of that person for the purposes of the proceedings, and the determination shall be final. Subsection (2) No conviction, order or judgment of a court under this Act shall be invalidated by any subsequent proof that the age of any person has not been correctly stated to, or determined by, the court. And under subsection (3), subject to the provision of subsection (1), whenever any question arises as to the age of an employee and no sufficient evidence is available as to that employee’s age, a medical officer may estimate the age of the employee by his appearance or from any available information, and the age so estimated shall, for purposes of this Act, and until the contrary is proved, be deemed to be the true age of the employee.

Under section 64 any person, who commits worst forms of child labour, shall on conviction be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both. Subsection (3) provides that it shall be a defence if the accused person proves that he genuinely had reason to believe that the child was above the age limit, which is the subject of the charge.

In case of death and bodily injury section 65 provides under subsection (1) that if a child is killed, dies or suffers any bodily injury in consequence of his employer having contravened any provision of this Part, the employer shall, in addition to any other penalty, be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both and the whole or any part of the fine may be applied for the benefit of the injured child or his family or otherwise as the Minister may direct. Under subsection (2) An employer shall not be liable under subsection (1) in the case of injury to health, unless the injury was caused directly by the contravention; and if a charge against him under this Part in respect of the act or default by which the death or injury was caused has been heard and dismissed before the injury occurred.

Insolvency of Employer

 

Section 66 states that in case of insolvency, the Minister shall, subject to section 69, pay the employee out of the National Social Security Fund, the amount to which, in the opinion of the Minister, the employee is entitled in respect of the debt.

An employer is insolvent under section 67 if, he has been adjudged bankrupt or has made a composition or arrangement with his creditors, or has died and his estate is to be administered in accordance with the Law of Succession Act.

If the employer is a company a winding order or a resolution for voluntary winding up has been made, or a receiver or the manager of the company’s undertaking has been duly appointed.

Under section 69 the total amount payable in respect to the debt owed to an employee is ten thousand shillings or one half of the monthly remuneration whichever is greater in respect of any one month payable; or in respect to a shorter period an amount proportionate to the shorter period based on the amount payable above.

Where a complaint has been lodged or an application for payment made under section 67 and the Industrial Court finds that the Minister should have made a payment under section 66 the court shall make an award to that effect, or declare the amount of any payment which it finds the Minister ought to make.

Under section 70 (1), where a relevant officer has been, or is required to be, appointed in connection with an employer’s insolvency, the Minister shall not make a payment under section 66 in respect of a debt until the Minister has received a statement from the relevant officer of the amount of that debt which appears to have been owed to the employee on the appropriate date and to remain unpaid. (3) If the Minister is satisfied that he does not require a statement under subsection (1) in order to determine the amount of a debt which was owed to the employee on the appropriate date and remains unpaid, he may make a payment in respect of the debt without having received the statement. Section 71 (1),     a person who has applied for a payment under section 66 may present a complaint to the Industrial Court that the Minister has failed to make the payment; or       that the payment made by the Minister is less than the amount which should have been paid.

Subsection (2), the Industrial Court shall not consider a complaint under subsection (1) unless it is presented before the end of the period of three months beginning with the date which the decision of the Minister on the application was communicated to the applicant; or within such further period as the Industrial Court considers reasonable in a case where it is not reasonably practicable for the complaint to be presented before the end of that period of three months.

Subsection (3), where the Industrial Court finds that the Minister should have made a payment under section 66, the Industrial Court shall make an award to that effect, and declare the amount of any payment which it finds the Minister ought to make.

Where a complaint is made to the Minister under section 66 in respect of debt owed by an employer, the minister may require the employer to provide him with such information as he may reasonably require for the purpose of determining whether the application is well founded; and any person having the custody or control of any relevant records or other documents the Minister nay require to produce for examination on behalf of the Minister any such records or documents.

Employment Records

 

Section 74 requires the employer to keep a written record of all employees employed by him, or with whom he has entered into a contract under this Act.

A person who makes, causes to be made an entry in a register, record, book or other document whatsoever, required by this Act which he knows to be false in a material particular, commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months or to both.

 


Employment Management

 

This part applies to an employer who employs 25 employees or more. An employer is expected to notify the Director of every vacancy occurring in his establishment, business or work place in a prescribed form.

Filling or abolition of a post must be notified to the employment service office. Any termination of employment and of each lay-off must be done within two weeks of the termination or lay-off.

Section 79 requires a register to be furnished to the director not later than 31st January of the following year.

Any contravention of this part by an employer will be liable to one hundred thousand shillings or to imprisonment not exceeding six months or both.


Foreign Contract of Service

 

Section 83 requires a foreign contract of service to be in a prescribed form, signed by the parties thereto, and be attested by a labour officer upon satisfying the requirements under section 84.

Under section 85(1) when the employer who enters into a foreign contract of service does not reside or carry on business within Kenya, the employer shall, or where the employer resides in Kenya,   the labour officer may require the employer to, give security by bond in the prescribed form, with one or more sureties resident in Kenya and approved of by the labour officer for the due performance of the contract in such sums as the labour officer considers reasonable. Subsection (2) provides that where the employer has an authorised agent resident in Kenya, the Minister may require that the security bond specified in subsection (1) be given by the agent and the agent shall personally be bound by the terms of the bond notwithstanding the disclosure of his principal.


Dispute Settlement Procedures

 

Section 87 (1) states that Act whenever an employer or employee neglects or refuses to fulfill a contract of service; or any question, difference or dispute arises as to the rights or liabilities of either party; or touching any misconduct, neglect or ill treatment of either party or any injury to the person or property of either party, under any contract of service, the aggrieved party may complain to the labour officer or lodge a complaint or suit in the Industrial Court. 

Under subsection (2) no court other than the Industrial Court shall determine any complaint or suit referred to in subsection (1). Subsection (3) provides that this section shall not apply in a suit where the dispute over a contract of service or any other matter referred to in subsection (1) is similar or secondary to the main issue in dispute.

There is a limitation under section 90. It states that notwithstanding the provisions of section 4 (1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.


Miscellaneous Provisions

The Minister may, after consultation with the board, make rules providing for all or any of the purposes, for the administration of this Act or that may be necessary or expedient for carrying out the objects of or purposes of this Act. Section 92 of this Act repeals the Employment Act Cap. 226.

Finally there is a transitional provision under section 93 which states that a valid contract of service, and foreign contract of service to which Part XI applies, entered into in accordance with the Employment Act (now repealed) shall continue in force to the extent that the terms and conditions thereof are not inconsistent with the provisions of this Act, and subject to the foregoing every such contract shall be read and construed as if it were a contract made in accordance with and subject to the provisions of this Act, and the parties thereto shall be subject to those provisions accordingly.

This Act shall serve as the minimum terms and conditions in employment and does not mean that an employer cannot offer better terms.

Labour and Human Rights

September 24, 2010

Labour and Human Rights

by

Okech-Owiti[1]

Introduction

 

Labour is a very important component of the human being in particular and human society in general. At the level of the individual human being, labour helps us to acquire or produce what we subsist on and our other needs. In other words, labour helps us to reproduce ourselves as individuals on a day-to-day basis. At the level of human society, labour plays two very important roles. First, it provides us with our collective needs, whether basic or otherwise. Second, the level of development of labour and how it is controlled and used in production largely defines the socio-economic formation of our societies.

In discussing labour and human rights, we begin by situating labour squarely in the production process. This is intended to achieve two things: to create a better understanding of the anatomy of labour as such and as a social phenomenon, and to provide a more solid foundation on which to discuss labour and human rights. Due to demands of space and brevity, his discussion is quite brief and avoids a lot of detail and complex concepts and relationships formed around labour. Thereafter, we discuss the international and regional human rights instruments which have a bearing on labour. This is intended to establish the extent to which these frameworks formally protect labour rights by providing standards of treatment. We conclude with an overview of the extent to which Kenya’s legislation has domesticated the international standards.

Labour as a factor of production

The anatomy of labour

Most of us are familiar with the term ‘factors of production’, meaning those things that we use in order to produce. They are also called productive resources or productive forces. Productive forces are broadly classified into the things we work on (called raw materials or objects of labour), the things we work with (or means of labour), and our own strength and ability to work. The first two are often collectively called the means of production, because they enable us to apply our labour in order to produce; they are a ‘means’ through which we produce. The third one is what we refer to as labour. It is our ability to use our ‘physical’ and ‘mental’[2] strength to carry out task. When we use it in production, it is called productive labour.

Productive labour is of two main kinds. When it is in us as a potential, it is called living labour, because it is in a living person. When it is contained in something that we have already produced, it is called congealed labour, because the thing is now the embodiment of our living labour. We could add a third category which is transient, that is, active labour. This is labour as it is being used, or which is in the process of being transformed from living to congealed labour.

Labour in production

Living labour can lie fallow as a potential and not be used in production at all. However, we are here concerned with labour in the production process; it is when labour is used in production that it raises questions of human rights.[3]

For the current purposes, we define production as the process of using productive forces to make things either for personal consumption or for exchange. More specifically, it is the process of applying living labour on objects of labour in order to make things, that is, the process of activating labour.

In production, we can, on the one hand, apply our labour using means of production which we own. Where this is the case, we produce for ourselves for either direct consumption or exchange (or, loosely, sale). This, in practice, is what the majority of peasant farmers and ‘jua kali’ artisans do everyday. It is referred to as self-employment or self-production.

It is also possible for us to rent out our means of production to somebody else who uses them in production and pays us for such use. This is a very rare form of production nowadays, except in situations where landholders or workshop or factory owners lease them out to others to use.

On the other hand, we can apply our labour using means of production owned by somebody else. In this case, we are essentially producing for somebody else. The person either consumes the products of our labour directly or exchanges them with others. In return, the person pays us something for the production, generally referred to as ‘wages’ or ‘salaries’. In essence, the person buys our labour, uses it in production and deals with the products as he or she wishes. In effect, our labour has become a commodity to be sold and bought in the labour market like any other ‘merchandise’. This is the typical situation today under the capitalist socio-economic formation.

This arrangement, commonly called employment, arises because it is only a small section of the population (commonly known as ‘capitalists’) which owns and controls the means of production. For the majority of the population which is ‘free’ of the means of production (commonly called ‘workers’), the only way to produce and get subsistence is to sell its labour to the capitalist by way of working for the latter for a wage.

It is with this majority that we are concerned here. Why? Because in a typical capitalist system, the capitalist (or broadly in terms of labour, the employer) controls virtually all the important stages in the production and distribution and consumption processes. This means that, by and large, the employer decides what is and how it is produced, which type of labour to engage/buy and how it is used, the conditions under which the employees (the sellers of labour) work, what is to be paid for the labour (subject to existing legal provisions), and how what is produced is distributed and consumed. It is this control of one’s (the employee’s) labour by someone else (the capitalist/employer), and the determination of the terms and conditions of the use of that labour, that gives rise to issues of human rights.

Before we delve into this discussion, however, we would like to make one bold statement that emphasises further the importance of labour. Labour is not only the begetter of commodities; labour is also the basic measure of value for everything that is produced. It is the amount and quality of labour that is applied in producing a commodity and which is, therefore, congealed in it, that determines its exchange value.[4]  This is an important issue for human rights since it has relevance to the protection that is given to, and the compensation that is given for, labour.

Human Rights and Protection of Labour

Human and Labour Rights

Briefly, human rights are those rights which human beings are taken to have universally by virtue simply of human beings, regardless of legal jurisdiction or other localizing factors, such as ethnicity, nationality, and sex. These rights, at least in the post-war period, are conceptualized as based on inherent human dignity and are inalienable in character.

Labour (equated largely with ‘workers’’) rights are a group of rights which those who are in employment (or labour) relations are entitled to enjoy. These rights have to do with a positive working environment, safe working conditions and terms (including wages) which enable those in employment to enjoy the highest standard of living. They include the right to work, to adequate and non-discriminatory remuneration, to associate, organise and to collectively bargain on terms and conditions, to limited working hours, to safe and healthy working conditions and to social security.

The human rights related to labour are provided for in a number of United Nations instruments, International Labour Organisation (ILO) Conventions and African regional instruments. In the context of Kenya, a number of statutes and the Industrial Relations Charter embody some of these principles. We briefly discuss each of these below.

United Nations (UN) Instruments

There are three main UN instruments which provide for human rights in relation to labour. These are the Universal Declaration of Human Rights (UDHRs), 1948, the Covenant on Economic, Social and Cultural Rights (ICESCRs), 1976[5] and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

The UDHRs provides for everyone the right to:

  • Work;
  • Free choice of employment;
  • Just and favorable conditions of work;
  • Protection against unemployment;
  • Equal pay for equal work;
  • Just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity;
  • Form and to join trade unions for the protection of his (sic) interests
  • Rest and leisure, including reasonable limitation of working hours and periodic holidays with pay

(Article 23 Article 24)

The ICESCRs reiterates the rights provided for under the UDHRs. However, it has a few more rights and is more elaborate in its provisions. In summary, it recognises the right to:

  • Work, which he/she freely chooses or accepts, with the state being expected to take steps for the realisation of this rights through such measures as technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment (Article 6);
  • Just and favourable conditions of work which ensure, in particular:
    • Remuneration which provides fair wages and equal remuneration for work of equal value for both men and women and a decent living;
    • Safe and healthy working conditions;
    • Equal opportunity for everyone to be promoted;
    • Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, and remuneration for public holidays (Article 7);
    • Form trade unions and join the trade union of his/her choice, the right of trade unions to establish national federations or confederations and to function freely and the right to strike (Article 8);
    • Social security, including social insurance (Article 9);
    • Special protection to mothers during a reasonable period before and after childbirth, with paid leave or leave with adequate social security benefits.
    • Special protection children and young persons against employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development (Article 10);
    • An adequate standard of living for self and family (Article 11);
    • The enjoyment of the highest attainable standard of physical and mental health (Article 12);
    • Education (Article 13).

 

Some of these rights may be subject the provisions of municipal laws, for example, the right to form or join trade unions of one’s choice, the right of trade unions to operate freely and the right to strike.

CEDAW provides for the same rights for women in the world of work (particularly in Article 11), but lays more emphasis on issues of discrimination of women in relation to men. It, consequently, provides for:

  • Equality of men and women in their national constitutions and maternity protection (Article 10);
  • Elimination of discrimination against women in the field of employment, including the right to the same employment opportunities, to equal remuneration, to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work, to protection of health and to safety particularly safeguarding the function of reproduction;
  • Special protection to women during pregnancy in types of work proved to be harmful to them. (Article 11)

ILO Conventions

The International Labour Organization[i] (ILO) is the premier body in the development of international standards fore the protection of labour rights. Formed in 1919 as part of the League of Nations to protect worker’s rights, it later became incorporated into the United Nations. It is a tripartite body whose constituents are governments, employers and employees (workers).Since its formation, ILO has maintained and developed a system of international labour standards aimed at promoting opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and dignity. These standards are contained mainly in ILO Conventions which are legally binding treaties once ratified by member states. The Conventions are supplemented by specific Recommendations which provide more detailed guidelines on how they could be applied, although these can also be autonomous from any convention.

The ILO’s Governing Body has identified eight conventions as ‘fundamental’. These cover areas that it considers as fundamental principles and rights at work: freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour, and the elimination of discrimination in respect of employment and occupation. These principles are also covered in the ILO’s Declaration of Fundamental Principles and Rights at Work, 1998.

We briefly summarise below the provisions of some of the Conventions containing fundamental principles.

The Freedom of Association and Protection of the Rights to Organize Convention, 1948 (No. 87) recognises the right of workers and employers to establish and to join organisations of their own choice which organisations also have a right to establish and join federations and confederations. The latter have the right to affiliate with international organisations of workers and employers (Articles 1, 2 and 5). The organisations have a right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes (Article 3). They are not liable to any interference from the state or to be dissolved or suspended by administrative authority (Article 4).

Under the Rights to Organise and Collective Bargaining Convention, 1949 (No. 98), workers have a right to enjoy adequate protection against acts of anti-union discrimination in respect of their employment. Thus, an employer must not make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership, or cause the dismissal of or prejudice a worker because of his or her union membership or of participation in union activities outside working hours or, with the consent of the employer, within working hours (Article 1). There should be no interference with the operations of workers’ and employers’ organisations or the use of financial or other means to control the organisation by persons other than the members. (Article 2).

The Forced Labour Convention, 1930 (No. 29) enjoins members to take appropriate measures to suppress the use of forced or compulsory labour in all its forms save in exceptional circumstances (Article 1).

The Abolition of Forced Labour Convention, 1957 (No. 105) prohibits the use of forced or compulsory labour as a means of political coercion or education, labour discipline or racial, social, national or religious discrimination, or as a punishment for having participated in strikes or holding or expressing divergent political views (Article 1).

The Minimum Age Convention, 1973 (No. 138) requires members to pursue a national policy towards the effective abolition of child labour. The members must progressively raise the minimum age for employment or work to a level consistent with the fullest physical and mental development of young persons (Article 1). The minimum age must not, in any case, be less than 15 years (Article 2).

Under the Worst Forms of Child Labour Convention, 1999 (No. 182) members promise to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour. It defines the ‘child’ to be any person under the age of 18 (Articles 1 and 2). The ‘worst forms of labour comprise:

  • All forms of slavery or practices similar to slavery;;
  • The use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;
  • The use, procuring or offering of a child for illicit activities;
  • Work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

The Equal Remuneration Convention, 1951 (No. 100) calls for the promotion and application to all workers of the principle of equal remuneration for men and women for work of equal value.

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) prohibits discrimination in employment or terms and conditions on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation (Article 1).

The Employment Policy Convention, 1964 requires members to design active policies which ensure that:

  • There is work for all who are available for and seeking work;
  • Such work is as productive as possible;
  • There is freedom of choice of employment (Article 1).

The Termination Convention, 1982 (No. 158) provides that the employment of a worker shall not be terminated except for good cause which is connected to the employment (Article 1). Under Article 5, a worker’s employment cannot be validly terminated for reasons of:

The following, inter alia, shall not constitute valid reasons for termination:

  • Union membership or lawful participation in union activities;
  • Seeking office as, or acting in the capacity of, a workers’ representative;
  • The filing of a complaint or the lawful participation in proceedings against an employer;
  • Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • Absence from work during maternity leave (Article 5).

African Regional Instruments

The main regional instrument which provides for human rights in respect of labour is the African Charter on Human and Peoples Rights, 1981, also known as the Banjul Charter. It provides for similar rights as the UDHRs and ICESCRs, including the right to work under equitable and satisfactory conditions, to equal pay for equal work and association.


Labour Rights in Kenya

Ratification of ILO Conventions

Kenya has ratified all the ILO Conventions discussed above except two. These are Conventions 87 (Freedom of Association and Protection of the Rights to Organize, 1948) and 158 (Termination Convention, 1982). It is important to note that ratification of conventions or treaties does not, in Kenya, automatically domesticate the same. An Act of Parliament has to be passed which either incorporates the provisions of such convention or treaty, or authorises its application, with or without reservations in both cases.

Kenyan Standards

The Right to Work: Kenya does not recognise the right to work in any of its constitutional or statutory provisions. It follows, therefore, that the freedom to choose one’s employment is limited.

Remuneration: Kenya has provisions in the Regulation of Wages and Conditions of Employment Act (Chapter 229) which provide for mechanism for determination of minimum wages in the different sectors. The statute provides for Wages Councils which, through Wages Orders, periodically establish the minimum wage for each sector. These Councils, however, seem to have become dormant, so that general minimum wages are typically announced by the Minister in-charge of labour matters, or by the President on May 1 (Labour Day).

However, workers covered by a collective bargaining agreement generally negotiate their remuneration within the collective bargaining mechanism.

Working Hours: The law limits the normal workweek to 52 hours, although night-time employees may be employed for up to 60 hours per week. Some categories of workers have a shorter workweek.

Right of Association: Both the Constitution of Kenya and the Trade Unions Act (Chapter 233) recognise the right of workers and employers to establish or join associations of their choice, save for those in the disciplined forces (the Army, Police and National Youth Service). The registration of trade unions is the prerogative of the Registrar of Trade Unions, who has discretion and may refuse registration of a union. At one point, workers in the Export Processing Zones were actually prohibited from setting up or joining existing trade unions, though this has now changed.

The Right to Organise and Bargain Collectively: While not having the force of law, the Industrial Relations Charter, executed by the Government, COTU, and the Federation of Kenya Employers, gives workers the right to engage in legitimate trade union organizational activities. Both the Trade Disputes Act and the Charter recognise collective bargaining between unions and employers.

The Right to Strike: The law permits workers to strike but under very stringent conditions. In effect, it is possible to have a situation where no strike is legal because of the conditions attached to the declaration of a strike and the open-ended discretion that the Minister in-charge of labour is granted under the Trade Disputes Act (Chapter 234).

Prohibition of Forced or Bonded Labour: The Constitution proscribes slavery, servitude, and forced and bonded labour, including in respect of children. Exceptions include labour required in consequence of the sentence or order of a court, of a person who is lawfully detained, of a member of a disciplined force, when Kenya is at war and as part of reasonable and normal communal or social service. However, conditions of life often force both adults and children to engage in labour that is not voluntary, or which is exercised in ‘slave conditions’.

Status of Child Labour and Minimum Age for Employment: The Children’s Act, 2001 (No. 8, 2001), requires every child to be protected from economic exploitation and any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. At the practical level, however, child labour is still a major problem for Kenya owing to the level of poverty and cultural practices.

Safe and healthy working conditions: Although the Factories and Other Places of Work Act has elaborate provisions for the protection of the safety and health of workers, there is inadequate capacity in the government to inspect and ensure that these provisions are implemented. 

Social security: Social security, including health insurance, is provided for under the National Social Security Fund and the National Hospital Insurance Fund. Both of these are contributory. Weaknesses in the schemes include inadequate coverage and compensation, mismanagement and misuse of the funds (corruption).


[1] Senior Lecturer, School of Law, University of Nairobi. I would like to acknowledge the valuable contribution of my Research Assistant, Paul Ogendi, a student at the School of Law, University of Nairobi

[2] This common division of the human physiology is actually of very little scientific value: at the cellular level, basic activity is an exchange of ions in both cases

[3] Even when we refer to the right to work as a human right, we mean the right to have an opportunity to use one’s labour in productive activities which enables one to satisfy one’s needs

[4] It should be noted that exchange value (or value) of a commodity is not the same as its price, which may be influenced by many other factors, including the state of the economy, the monopoly status of the producer, the use value attached to the commodity by various consumers, demand and supply, the pursuit of profits, the existence or non-existence of controls on prices, among many others

[5] The Covenant was adopted by the UN General Assembly in 1966


the role of the Judge in implementing and enforcing environmental law

September 24, 2010

TABLE OF CONTENTS

Dedication………………………………………………………………………………..i

Declaration……………………………………………………………………………….ii

Acknowledge…………………………………………………………………………….iii

Table of Acronyms………………………………………………………………………iv

Table of Cases…………………………………………………………………………..v

Table of Conventions…………………………………………………………………..vi

Table of Statutes……………………………………………………………………….vii 

1.0       CHAPTER ONE: THE RESEARCH PROPOSAL. 3

1.1 Introduction. 3

1.2 Background of the Study. 5

1.4 Statement of the Problem.. 8

1.5 Theoretical Framework & Definition of Terms. 9

1.6 Hypotheses. 11

1.7 Research Questions. 11

1.8 Objectives of the Study. 12

1.9 Research Methodology. 12

1.10 Literature Review.. 13

1.11 Chapter Breakdown. 18

2.0 CHAPTER TWO: THE UNEP GLOBAL JUDGES PROGRAMME: JUDGES’ PROGRAMME FOR CAPACITY BUILDING.. 19

2.1 Introduction. 19

2.2 Regional Judges Symposia on Environmental Law, Sustainable Development and the Role of the Judiciary. 22

2.3 Global Judges Symposium on Sustainable Development and the Role of Law, Johannesburg, South Africa, 18 – 20 August 2002. 25

2.3.1 Johannesburg Principles on the Role of Law and Sustainable Development 27

2.3 The Judges Ad hoc Meeting for the Development of a Plan of Work as a Follow-Up to the Global Judges Symposium Relating to Capacity Building of Judges, Prosecutors, and other Legal Stakeholders. 31

2.4 UNEP Governing Council Decision 22/17 on Governance and Law.. 33

2.5 A Roundtable Dialogue on Advancing MDGs through the Rule of Law.. 36

3.0       CHAPTER THREE: LEGISLATIVE AND INSTITUTIONAL FRAMEWORK FOR THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA.. 37

3.1 Introduction. 37

3.2 International Environmental Law and Principles. 38

3.3 National Environmental Legislations. 41

3.3.1 Physical Planning Laws. 42

3.3.2 Sectoral Environmental Laws. 44

3.4 Environmental Institutions in Kenya. 46

3.4.1 United Nations Environmental Programme and UN Habitat 46

3.4.2 Institutions under EMCA, 1999. 47

3.4.3 Ministry of Environment 48

4.0 CHAPTER FOUR: THE ROLE OF JUDGES IN IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA: A PERSPECTIVE.. 50

4.1 Introduction. 50

4.2 Access to Justice. 51

4.3 Appraising Past Environmental Decisions. 55

4.3.1 Sea Star Malindi Ltd v Kenya Wildlife Services. 55

4.3.2 Peter Kinuthia Mwaniki & 2 Others v Peter Njuguna Gicheha & 3 Others. 57

4.3.3 Rodgers Nzioka & 2 others v. Tiomin Kenya Limited. 59

4.3.4 Lereya & 800 Others v. Attorney General & 200 Others (the famous toothless goat case). 61

4.3.5 Nakumatt Holdings Limited v National Environmental Management Authority & Another 64

5.0 CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS.. 69

5.1 Introduction. 69

5.2 Restatement of the Objectives of the Research. 69

5.2 Summary of the Content 70

5.3 Conclusions. 71

5.3 Recommendations. 73

International Level 73

5.4 Recommendations for Further Work (Research) 75
 

1.0       CHAPTER ONE: THE RESEARCH PROPOSAL

 

1.1 Introduction

 

In this discourse, we interrogate the role of the Judge in implementing and enforcing environmental law nationally. The standard aimed at in this research is, uniform implementation and enforcement of environmental law globally by all Judges irrespective of jurisdiction.

Environmental law itself has seen rapid development in the past half century. Part of this development has necessitated an extensive formulation and adoption of various Multilateral Environmental Agreements (“MEAs”) to try and control human impact on the earth. The 1972 United Nations Conference on the Human Environment came up with the first Principles and rules for nationals to develop rules in the field of environment.[1] The Conference also reached a decision to create the United Nations Environmental Programme (UNEP) with its secretariat in Nairobi, Kenya. UNEP is the principal organ of the United Nations on environment.

The Agenda 21 adopted by the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, Brazil reiterates the importance of implementing international treaties through the enactment and enforcement of laws and regulations at the regional, national, provincial or municipal level because these laws and regulations are essential for the implementation of most international agreements in the field of environment and development.

In Kenya, the laws and regulations on environment were contained in numerous sectoral laws prior to 1999. In 1999, Kenya enacted the Environmental Management and Co-ordination Act (EMCA)[2] to provide for the establishment of an appropriate legal and institutional framework for the management and coordination of the environment, in parallel with the sectoral laws. National Environmental Management Authority (NEMA) is perhaps the most important administrative organ established under the EMCA, all appeals from NEMA lies to the National Environmental Tribunal (NET)[3]. Presiding in the Tribunal is the Judge(s) who is expected to dispense justice to all competently and independently, and most importantly uniformly. Under section 8 of the EMCA environmental cases can also be filed in the High Court of Kenya which has jurisdiction over all matters.

As noted above, in both the High Court and the NET under EMCA, it is the Judge (s) who makes determinations on environmental matters. To the extent he does so, his role has even greater implications and consequences to the implementation and enforcement of environmental law nationally, which also affects the uniformity desired universally irrespective of jurisdiction. Towards this end, the Judge will remain indispensible in environmental discourses.

1.2 Background of the Study

The past half century has seen the evidence to the need to protect and conserve the environment. Environmental awareness has covered issues like ecosystem management; need to protect the ozone layer; pollution control; sustainable development; trade related aspects; climate change, among others.[4] In Africa, particularly, a large part of the population directly depends on the environment and natural resources for their livelihoods.[5] This situation is emphasized in the words of Klaus Topfer[6],

“Today’s world is facing an unprecedented environmental crisis. Deterioration of the Earth’s environment increasingly threatens the natural resources base and processes upon which all life on Earth depends. Without strong and multifaceted action by all of us, the biosphere may become unable to sustain human life and future generations will suffer deprivation and hardship unless current patterns of production, consumption and waste management dramatically change. The urgency of balancing development with the Earth’s life support systems is being finally recognized and understood. Now it is time to act upon this understanding.”[7]

As earlier noted, Kenya did not have an integrated body of National Environmental Law until recently.[8]  The applicable law governing environment matters was confined to common law and various statutes regulating sectors such as health, water, forestry, agriculture and industry.  Due to increase in environmental activism and the government cognizance of the significance of a comprehensive and sound framework for environmental regulation culminated in the enactment of Environmental Management and Coordination Act (EMCA) of 1999[9] alongside the sectoral laws. Both the sectoral laws and EMCA provide the regime of environmental protection and conservation in Kenya.

The Judiciary – as the universally recognized guardian of the Rule of Law – therefore, plays a crucial role in promoting sustainable development through the application, interpretation and enforcement of environmental law.[10] According to UNEP, the Judiciary remains a crucial partner in promoting environmental governance, upholding the rule of law and in ensuring a fair balance between environmental, social and developmental considerations through its judgments and declarations.[11] The Judge is in the centre of the judiciary.

1.3 Significance of the Study

International focus has given considerable attention to the role of Judges in the implementation and enforcement of environmental law. These effort, have come with the realization of the solemn role a Judge plays in dispute settlement and more particularly in settling environmental disputes. This appreciation is linked to the Judge’s role of interpreting laws and his unrivalled position of guaranteeing justice to all, however, the nature of this role will differ depending on the legal system of a country. In countries where the administrative systems are relatively undeveloped, the courts have been able to fill the gap by imaginative interpretation of constitutional guarantees.[12] For example, the Kenyan case, Waweru v Republic of Kenya[13], the learned Judge observed that a development that threatens life is not sustainable and ought to be halted. The decision is premised on Principle 4 of the Rio Declaration. The principle states:

“In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”[14]

Secondly, unlike all the other environmental institutions, the Judiciary is protected by the doctrine of separation of powers. This is because the Judiciary is one of State organs whose independence is constitutionally guaranteed. The state doctrine of separation of powers protects the Judiciary from the executive and legislature interference. The Judges are also bestowed security of tenure to encourage independence and impartiality in carrying out their work.

Thirdly, decisions made in courts influence the direction of implementation and enforcement of environmental law at a national level. Therefore, non-uniform interpretation of environmental laws and principles will have serious implications globally.

Fourthly, the obiter dicta and ratio decidendi, of Judges in higher courts are used as precedents in subsequent cases under the doctrine of stare decisis. For example, in Wangari Maathai (Greenbelt Movement) v Kenya Times Media Trust[15] the court upheld the defendants’ contention that the plaintiff had no locus standi. Such precedent is a bad precedent which must be reversed or reviewed because it limits locus standi and thus impedes on efforts to conserve and preserve environment.

1.4 Statement of the Problem

Like all human beings, Judges are prone to making mistakes and errors in carrying out their work. They are also prone to misapplying or misinterpreting existing environmental laws and/or principles. Therefore, deliberate efforts must be made to address these shortcomings. The UNEP Governing Council Decision 22/1 II A calls upon the Executive Director to help improve the capacity of those involved in the process of developing, implementing and enforcing environmental law at the national and local levels, including judicial officers.[16]

Secondly, the fine nuances of particular situations which the Judge encounters in individual cases are often not matters with which legislatures have time and resources to deal. It is often before the Judiciary that they come up for the first time. Environmental litigation can take forms, inter alia, civil actions based on tort; contract or property law; criminal prosecutions; public interest litigation that, e.g., challenges government action or inaction; or enforcement of constitutional rights. Depending on the category different standards and approaches apply which must be delicately balanced. For example, a constitutional right has much more bearing than civil actions since constitutions are always regarded as supreme.

1.5 Theoretical Framework & Definition of Terms

Consider the poem below,

“Nature never did betray, the heart that loved her”

(William Wordsworth – Poet)

 

The theoretical framework in this research derives inspiration from the natural law tradition; the preservationists assume that the natural ecosystems are well-ordered and harmonious. All parts of the ecosystem, and especially all its biotic members, have a distinctive place in the overall scheme. Each one contributes to the natural order in its own way. Thus, nature undisturbed is goodness reserved. Ecological problems arise when man interferes with the natural order and treat other natural objects as having value only insofar as they serve human purposes.[17]

Although the natural law tradition of Aristotle allows for a moral hierarchy with humans “higher” than animals and animals “higher” than plants, it nevertheless recognized that living things have a good of their own. Some preservationists interpret this as granting moral standing to animals and plants. They argue that plants and animals are not only objects, but are holders of rights as well.[18]

While natural law theory inspires our study, our theoretical framework will, however, be based on positivism and realism; positivism to mean what is the law on environment and realism to imply how is the law on environment interpreted and enforced everyday in courts by Judges. To this end we intend to emphasize on the role of the Judge and not the law on environment.

Several definitions and concepts have been used in this research as follows:  ‘Sustainable development’  means “inherent in the concept of sustainable development is the principle that development needs are to be taken into account in interpreting and applying environmental obligations”;[19] Environment’ has been used in its modern context of sustainable development, and it encompasses the physical and social factors of the surroundings of human beings and includes land, water, atmosphere, climate, sound, odour, taste, energy, waste management, coastal and marine pollution, the biological factors of animals and plants, as well as cultural values, historical sites, and monuments and aesthetics; ‘Environmental law’ means the body of law that contains elements to control human impact on the Earth and on public health; ‘Environmental litigation’ take forms, inter alia, civil actions based on tort; contract or property law; criminal prosecutions; public interest litigation that, e.g., challenges government action or inaction; or enforcement of constitutional rights; and National Environmental Management Authority (NEMA)’ is used in the study as established under the EMCA.

1.6 Hypotheses

 

  1. The Judges play a solemn role in ensuring the universal implementation and enforcement of environmental law.
  2. Judges do not uniformly implement and enforce environmental law and principles in all jurisdictions.
  3. Environmental law has limited precedents and some conventions are very technical in nature, thereby, imposing a considerable challenge in interpretation to the Judges.
  4. The UNEP global Judges programme is an effective tool for training and capacity development to achieve uniform universal implementation and enforcement of environmental law.
  5. Judges’ decision-making that fails to take into consideration environmental law has a potential of destroying the Earth in which all of us live.

 

1.7 Research Questions

 

  1. What are the environmental rules and principles on environment that Judges should implement and enforce in courts and tribunals?
  2. Do Kenyan Judges have the requisite capacity to uniformly implement and enforce environmental law in courts and tribunals?
  3. What are the effects of poorly decided cases on the implementation, and enforcement of environmental law in Kenya?
  4. What is the usefulness of the UNEP Global Judges Programme for Judges?

                                    

1.8 Objectives of the Study

 

The research study aims at achieving, inter alia, the following objectives:

  1. To contribute to the development of environmental discourse on the role of Judges in implementing and enforcing environmental law.
  2. To identify the major challenges Judges face in implementing and enforcing environmental laws in courts and tribunals.
  3. To appraise on the achievements of the UNEP Judges Environmental Programme and suggest recommendations.
  4. To find out the impact of bad environmental decision making in the implementation, development and enforcement of environmental law;
  5. To understand the role of the Judge in the Implementation and enforcement of environmental law.

 

1.9 Research Methodology

 

The researcher will use both primary and secondary sources of data.

The researcher will also undertake a desktop review of different materials including, inter alia: legal instruments, reports, books, papers and publications relating to the area of study.

Case law analysis will be used to identify gaps and challenges in environmental implementation and enforcement.

Primary sources will include, inter alia, interviews with Judges, environmental experts and students of environmental law on the subject matter of the study.

The internet and other electronic sources will be very useful throughout the different levels of the study.

1.10 Literature Review

African countries have suffered excessive exploitation of natural resources. Although the former colonial authorities promulgated some norms both at the regional and domestic levels in order to reduce the destruction of nature, these norms only addressed specific natural resources sectors and were mostly ‘use oriented’ and ‘rule oriented.’[20] However, today, treaties are the major mechanism employed by states in the conduct of their relations with each other. 

There are several types of environmental treaties and national legislative approaches to environmental management. These include, inter alia, the following: Constitutions, sectoral laws, framework environmental laws, comprehensive codification of environmental laws, penal codes, and the implementation of international environmental legal instruments. Generally, judicial institutions serve several functions in society, among them the peaceful settlement of disputes, upholding the rule of law, and applying and interpreting the law.[21]

Laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into action, not only through ‘command and control’ methods, but also as normative framework for economic planning and market instrument.[22]

In August 2002, UNEP convened the Global Judges Symposium on Sustainable Development and the Role of Law in parallel with the World Summit on Sustainable Development. The outcome of the symposium was the unanimous recognition by these senior Judges representing the various legal systems of the world, of the crucial role that the judiciary plays in enhancing environmental governance and the rule of law, through the interpretation, application, further development and enforcement of environmental law in the new context of sustainable development.[23]

This recognition was finally embedded in the Johannesburg Principles on the Role of Law and Sustainable Development (the Johannesburg Principles), that the Judges adopted by acclamation, which were presented to the Secretary-General of the United Nations, Mr. Kofi Annan, and to the World Summit on Sustainable Development by the Chair of the Symposium, the Chief Justice of South Africa.[24]  It contained the following statement:

“We affirm that an independent judiciary and judicial process is vital for the implementation, development and enforcement of environmental law, and that members of the judiciary, as well as those contributing to the judicial process at the national, regional and global levels are crucial partners for promoting compliance with and implementation and enforcement of international and national environmental law”.

 

Underlying this project have been four fundamental ideas: first, that the task of safeguarding the environment for present and future generations, while providing an acceptable standard of life, is probably the greatest challenge we face in the 21st century; secondly, that time is running out; thirdly, that the principles which should guide our response to that challenge (sustainable development, precautionary principle, public trusteeship) form a shared pool of knowledge and experience, which is now recognized in one form or another by most of the legal systems of the world; and fourthly, that Judges at all levels, national and international, are uniquely placed, as decision-makers and opinion reformers, to put those principles into practice.[25]

The Johannesburg Principles on the Role of Law and Sustainable Development recognized that: an independent Judiciary and judicial process is vital for the implementation, development and enforcement of environmental law; the fragile state of the global environment requires the Judiciary as the guardian of the rule of law, boldly and fearlessly to implement and enforce applicable international and national laws, which will assist in alleviating poverty, while also ensuring that the  inherent rights and interests of succeeding generations are not compromised; the people most affected by environmental degradation are the poor and that, therefore, there is an urgent need to strengthen the capacity of the poor and their representatives to defend environmental rights, so as to ensure that the weaker sections of the society are not prejudiced by environmental degradation and are enabled to enjoy their rights to live in a social and physical environment that respects and promote their dignity; the Judiciary plays a critical role in the enhancement of public interest in  a healthy and secure environment; the rapid evolution of multi-lateral environmental agreements, national constitutions and statutes concerning the protection of the environment increasingly requires the courts to interpret and apply new legal instruments and keeping with the principal of sustainable development; and that the deficiency in the knowledge, relevant skills and information in regard to environmental law is one of the principle causes that contribute to the lack of effective implementation, development and enforcement of environmental law. [26] 

The challenges of implementing and enforcing environmental law are best captured by the sentiments of Lord Woolf, Lord Chief Justice of England and Wales, he said:

“…it is my firm belief that the Judiciary of different jurisdictions have immense amount to learn from each other. Our legal systems may differ. They may fall on one side or the other of the divide between the common law and civil law systems or they may be a mixture of both systems or even unrelated either of those systems. Yet, the problems with which they are confronted today are very similar. They are: How to ensure that all sections of the public can obtain access to justice from our courts?….How to ensure the independence of the Judiciary and finally how to protect the environment, the critically important subject of this conference?”

 

It also emerges that the deficiency in the knowledge, relevant skills and information in regard to environmental law is one of the principal causes that contributes to lack of effective implementation, development and enforcement of environmental law.[27]

Broadly speaking, role of the Judiciary in the environmental arena includes: administering environmental litigation; promoting compliance by enforcing the law; serving as guarantor of public participation rights; balancing environment and development considerations; influencing societal attitudes towards the environment and the concept of sustainable development; through judgments, furthering the development of legal concepts in the area of sustainable development; through judgments, furthering the development of legal concepts in the area of sustainable development; furthering the implementation of regional and global environmental accords where part of the corpus of domestic law; serving as a check on executive inaction and overreaching in the environmental arena; and protecting the rights of the accused. [28]

 

In January 2003, a follow-up meeting in Nairobi brought together 25 Judges’ representatives of the world’s legal systems and regions to provide guidance to UNEP in the development and implementation of a programme directed at the judiciaries of the world, to achieve more effective application and enforcement of domestic environmental law.[29] The Global Judges Symposium and the subsequent Nairobi meeting inspired the UNEP Governing Council to adopt Decision 22/1 II A which called upon the Executive Director to help improve the capacity of those involved in the process of developing, implementing and enforcing environmental law at the national and local levels, including judicial officers.[30]

1.11 Chapter Breakdown

 

The study will contain five chapters. Chapter one contains the proposal of the study. Chapter two discusses the UNEP’s Global Judges Programme. Chapter three gives a general legislative and institutional framework on environmental law in Kenya. Chapter four discusses the role of a Judges in ‘access to justice’ and ‘environmental litigation’. Chapter five contains the research conclusions and recommendations.

2.0 CHAPTER TWO: THE UNEP GLOBAL JUDGES PROGRAMME: JUDGES’ PROGRAMME FOR CAPACITY BUILDING

 

2.1 Introduction[31]

The UNEP Global Judges’ Programme initiative is based on the idea that the role of the Judiciary is fundamental in the promotion of compliance with, and enforcement of international and national environmental law. It aims at promoting Judiciary networking, and harmonization of the approach to the implementation of global and regional instruments.

UNEP’s commitment to this end is based on the specific mandate provided in the programme for the Development and Periodic Review of Environmental Law for the first decade of Twenty-First Century.[32] The work, focusing on Judiciary, commenced with the organization of Regional Judges Symposia on Environmental Law, Sustainable Development and the Role of the Judiciary. Based on the outcome, UNEP convened the Global Judges Symposium on Sustainable Development and the Role of Law in Johannesburg, South Africa, on 18 – 20 August 2002 as a parallel event to the World Summit on Sustainable Development. The Outcome of the Global Judges Symposium, the Johannesburg Principles on the Role of Law and Sustainable Development, was presented to the UN Secretary General and to the World Summit on Sustainable Development (WSSD).

Following the Global Judges Symposium, UNEP Prepared a practical plan of work and organized a meeting of a small group of Judges’ representatives of the world’s legal systems and regions, to secure their advice on the plan of work. The meeting, the Judges Ad Hoc Meeting for the Development of a Plan of Work as a Follow-Up to the Global Judges Symposium Relating to Capacity Building of Judges, Prosecutors, and Other Legal Stakeholders, was held in Nairobi, Kenya one week before the 22nd session of the Governing Council of UNEP. The participants adopted a final document, containing suggestions on how to develop and implement the capacity building programme, which was presented to the Governing Council of UNEP at its opening session on 3 February 2003 by the Chief Justice of South Africa.

The 22nd session of the Governing Council, held in Nairobi on 3-7 February 2003, endorsed UNEP’s commitment in this field in its decision 22/17 on Governance and Law, part II, A on Follow-up to the Global Judges Symposium focusing on capacity-building in the area of environmental law. To implement UNEP Governing Council decision 22/17 II(A) UNEP has embarked upon an extensive work programme (the Global Judges Programme), developed and carried out with the advise and guidance of a UNEP Ad hoc Advisory Group of Chief Justices and other Judges drawn from around the world, headed by the Chief Justice of South Africa.

The goal of this programme of work is for UNEP to carry out, on a cohesive, structured and sustained basis, national activities under the direction and guidance of the respective Chief Justices, for strengthening the role of the Judiciary in securing environmental governance, adherence to the rule of law and the effective implementation of national environmental policies, laws and regulations including the national level implementation of multilateral environmental agreements. Several governments, including the governments of the Netherlands, Belgium and Norway have provided significant financial support to UNEP for the implementation of this programme of work.

The programme, set out in a Road Map, is implemented by the Environmental Law Branch of UNEP’s Division of Policy Development and Law, in collaboration with relevant Divisions and Regional Offices of UNEP as well as several partner agencies. To facilitate the conduct of capacity-building activities at national level that were carried out beginning in 2004, UNEP convened throughout 2003 and the first half of 2004 eleven Regional Chief Justices Needs-Assessment and Planning Meetings. These Meetings have drawn up needs-responsive and country specific national programmes of work for strengthening judicial capacity in the area of environment and sustainable development.

These national programmes of work are implemented at the national level by the Chief Justices and the respective national judicial training institutions, and are supported by UNEP in partnership with a global alliance of partners, including the World Bank Institute, the United Nations University, UNITAR, IUCN, the global academia and regional and national institutions with relevant capabilities in the area of environmental law, training and education.

2.2 Regional Judges Symposia on Environmental Law, Sustainable Development and the Role of the Judiciary[33]

 

In order to promote the role of the Judiciary in sustainable development UNEP convened Regional Symposia for Judges on the Role of the Judiciary in Promoting the Rule of Law in the Area of Sustainable Development. The Symposia brought together Chief Justices and Prosecutors from countries in the different regions with the aim to: examine contemporary developments in the field of national and international environmental law; exchange views, knowledge and experience in promoting the further development and implementation of environmental law in the region; review the role of the Courts in promoting the rule of law in the area of sustainable development, including an examination of important Judgements.

Mombasa, Kenya (1996)[34] 

The first Symposium was held in Mombasa, Kenya in October 1996 and targeted African countries. UNEP organised it under the Joint UNEP/UNDP Project on Environmental Law in Africa funded by the Dutch Government. Judges and judicial officers from Burkina Faso, Kenya, Mauritania, Mozambique, Sao Tome and Principe, South Africa, Tanzania, and Uganda were in attendance.

Colombo, Sri Lanka (1997)[35] 

Encouraged by the outstanding results of this pioneering initiative, UNEP organized the second Symposium for countries in South Asia in Colombo, Sri Lanka, in July 1997. The Symposium was organised in collaboration with the South Asia Cooperative Environment Program (SACEP), with funding from the Royal Norwegian Government through Norwegian Agency for Development Cooperation (NORAD). Delegations from Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka attended.

Manila, Philippines (1999)[36] 

Another Symposium, the Southeast Asian Justices Symposium: ‘The Law on Sustainable Development’ was held in Manila, Philippines, from 4–7 March 1999. The event was organised by UNEP in partnership with UNDP, the Government of the Philippines and the Hanns Seidel Foundation. The Chief Justice of the Philippines hosted the Symposium. Participants included Chief Justices, Deputy Chief Justices, Judges and Senior Government Officials from Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam.

Mexico City, Mexico (200)[37] 

A fourth Symposium, on Environmental Law and Sustainable Development: Access to Environmental Justice in Latin America, was held in Mexico City, Mexico, 26-28 January 2000. The Symposium, organized by UNEP with the collaboration of the Federal Attorney General’s Office for Environmental Protection (PROFEPA) of the Mexican Government, was attended by Supreme Court Justices and other high-level Judges from the following countries: Argentina, Brazil, Chile, Colombia, Cuba, Mexico and Peru. A publication with the proceedings, the Judges’ presentations and the core working paper of the symposium was prepared and released by UNEP in September 2000.

Castries, Saint Lucia (2001)[38]

The fifth Judicial Symposium, on Environmental Law and Sustainable Development: Access to Environmental Justice for the Countries of the English Speaking Caribbean, was held in Castries, Saint Lucia, on 8-10 April 2001. The event was organised by UNEP and the International Network for Environmental Compliance and Enforcement (INECE), including the World Bank, Commonwealth Secretariat, US Environmental Protection Agency, CIDA-ENACT Jamaica and the Natural Resources Conservation Authority of Jamaica. Thirty-four high-level Judges and prosecutors participated in the programme.

Brisbane Australia (2002)[39]

The last Symposium, the Pacific Symposium on Environmental Law and Sustainable Development, was held in Brisbane on 4-8 February 2002. Chief Justices and Judges from 9 Pacific Island States participated: the Federated States of Micronesia (FSM), the Commonwealth Secretariat and the United Nations University (UNU). The Chief Justices and Judges made presentations on their National Environmental legal systems in view of the challenges and Recent Trends in the Development of Environmental Jurisprudence. A Statement of Conclusions and Recommendations was adopted at the end of the Symposium. One of the main recommendations was to identify an institution in Queensland that could serve as a Regional Centre for Capacity Building in the field of Environmental Law and MEAs, for the benefit of Pacific Island States.

 

2.3 Global Judges Symposium on Sustainable Development and the Role of Law, Johannesburg, South Africa, 18 – 20 August 2002.

 

The Global Judges Symposium on Sustainable Development and the Role of Law, was held in Johannesburg, South Africa, from 18 to 20 August 2002, and hosted by Hon. Justice A. Chaskalson – the Chief Justice of South Africa.[40] One hundred and twenty-six (126) Chief Justices and senior Supreme Court Judges participated in the symposium including thirty two (32) Chief Justices. Judges of the International Court of Justice, the European Court of Justice and the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA) also participated.[41]

The outcome of the symposium was a unanimous recognition by these Judges representing the various legal systems of the world, of the crucial role that the Judiciary plays in enhancing environmental governance and the rule of la, through the interpretation, development, implementation and enforcement of environmental law in the new context of sustainable development.

One writer summarizes UNEP’s role, from the symposium’s view, to be stabilization of the network of Judges and stimulating capacity building as well as provision of an impetus to move the “paper tigers”[42] to real law. And I quote,

 “….A deep consensus had emerged at the recent Global Judges Symposium on Environmental Law that environmental rights were an essential part of human rights….Judge Chaskalson, describing the meeting held in Pretoria, South Africa from 18 to 20 August, said there had been an absolute commitment from all parts of the world about the importance of the rule of law and of the Universal Declaration of Human Rights. Environmental rights, it was agreed, were not an end in themselves, but a tool towards ensuring the fundamental right to life and better living conditions for all….The stories told had revealed much concern about damage to the environment and ineffective existing legal structures, as well as the need for support in countries where legal structures were not very strong, he added. At the end of the symposium, a set of principles was adopted, which included a commitment to explore at the Summit many of the issues raised at the Judges’ conference….Mr. Toepfer reiterated that there were lots of legally binding conventions and protocols, but those would remain “paper tigers” without implementation. Among the main focuses of the conference had been the need to work together to implement and change laws relating to sustainable development. Parliamentarians must be involved, as well as administrative personnel and civil society. For its part, UNEP must stabilize the network of Judges and stimulate capacity-building, especially in developing countries, as well as provide an impetus to move the “paper tigers” to real law[43]….”

 

2.3.1 Johannesburg Principles on the Role of Law and Sustainable Development[44]

 

In the preamble to the document members affirmed their commitment to the pledge made by world leaders in the Millennium Declaration adopted by the United Nations General Assembly in September 2000,

 “to spare no effort to free all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs”.

They agreed that the Judiciary has a key role to play in integrating Human Values set out in the United Nations Millennium Declaration: Freedom, Equality, Solidarity, Tolerance, Respect for Nature and Shared Responsibility into contemporary global civilization by translating these shared values into action through strengthening respect for the Rule of Law both internationally and nationally.

Perhaps what captures the sentiments of the Judges more vividly is the excerpt from the preamble to the principles as quoted below:

….We feel reassured that the implementation and further development of international environmental law aiming at sustainable development, the implementation of agreed international norms and policies, and the strengthening of the capacity of those engaged in promoting the implementation and enforcement of environmental law are cornerstones of the UNEP Programme of Work in the field of Evironmental Law, as reflected in the Nairobi Declaration adopted at the 19th session of the Governing Council in February 1997, and the Programme for the Development and Periodic Review of Environmental Law for the First Decade of the Twenty-first Century, adopted by the UNEP Governing Council in February 2001( Montevideo Programme III).”

The Judges agreed on the following principles that should guide the the Judiciary in promoting the goals of sustainable development through the application of the rule of law and the democratic process:

1)           A full commitment to contributing towards the realization of the goals of sustainable development through the judicial mandate to implement, develop and enforce the law, and to uphold the Rule of Law and the democratic process,

2)           To realise the goals of the Millenium Declaration of the United Nations General Assembly which depend upon the implementation of national and international legal regimes that have been established for achieving the goals of sustainable development,

3)           In the field of environmental law there is an urgent need for a concerted and sustained programme of work focused on education, training and dissemination of information, including regional and sub-regional judicial colloquia, and

4)           That collaboration among members of the Judiciary and others engaged in the judicial process within and across regions is essential to achieve a significant improvement in compliance with, implementation, development and enforcement of environmental law.

For the realisation of these principles the Judges proposed that the programme of work should include the following:

a)           The improvement of the capacity of those involved in the process of promoting, implementing, developing and enforcing environmental law, such as Judges, prosecutors, legislators and others, to carry out their functions on a well informed basis, equipped with the necessary skills, information and material,

b)           The improvement in the level of public participation in environmental decision- making, access to justice for the settlement of environmental disputes and the defense and enforcement of environmental rights, and public access to relevant information,

c)            The strengthening of sub-regional, regional and global collaboration for the mutual benefit of all peoples of the world and exchange of information among national Judiciaries with a view to benefiting from each other’s knowledge, experience and expertise,

d)           The strengthening of environmental law education in schools and universities, including research and analysis as essential to realizing sustainable development,

e)           The achievement of sustained improvement in compliance with and enforcement and development of environmental law,

f)              The strengthening of the capacity of organizations and initiatives, including the media, which seek to enable the public to fully engage on a well-informed basis, in focusing attention on issues relating to environmental protection and sustainable development,

g)           An Ad Hoc Committee of Judges consisting of Judges representing geographical regions, legal systems and international courts and tribunals and headed by the Chief Justice of South Africa, should keep under review and publicise the emerging environmental jurisprudence and provide information thereon,

h)            UNEP and its partner agencies, including civil society organizations should provide  support to the Ad Hoc Committee of Judges in accomplishing its task,

i)              Governments of the developed countries and the donor community, including international financial institutions and foundations, should give priority to financing  the implementation of the above principles and the programme of work,

j)              The Executive Director of UNEP should continue to provide leadership within the framework of the Montevideo Programme III, to the development and implementation of the programme designed to improve the implementation, development and enforcement of environmental law including, within the applicable law of liability and compensation for environmental harm under multilateral environmental agreements and national law, military activities and the environment, and the legal aspects of the nexus between poverty and environmental degradation, and

k)            This Statement should be presented by the Chief Justice of South Africa to the Secretary-General of the United Nations as a contribution of the Global Judges Symposium to the forthcoming World Summit on Sustainable Development, and for broad dissemination thereof to all member States of the United Nations.

2.3 The Judges Ad hoc Meeting for the Development of a Plan of Work as a Follow-Up to the Global Judges Symposium Relating to Capacity Building of Judges, Prosecutors, and other Legal Stakeholders.[45] 

 

The meeting gathered 25 Chief Justices and Senior Judges, representative of different regions and legal systems, to provide advice and guidance on the development of a plan of work for the capacity-building of judicial officers in developing countries and countries with economies in transition as well as other legal stakeholders active in the implementation and enforcement of national environmental law, such as prosecutors, enforcement officers, lawyers, public interest litigation groups, civil society groups active in safeguarding environmental rights of people as well as, in the longer term, teachers and students of environmental law.[46]

The strategy proposed by UNEP was to develop a plan of work that is globally conceived, planned and managed, regionally and sub-regionally delivered, and is nationally tailored and driven so as to be responsive to the needs of each country, for the capacity building of the above mentioned target groups in the field of environmental law. The programme is also designed so as to maximize impact by supporting and complementing similar capacity building activities carried out by other organizations, targeting similar or other interest groups (e.g. the private sector), by providing inputs such as training materials, web-site information, expertise and experiences developed for or gained through this initiative.[47]

The outcome of the Nairobi planning meeting saw the Judges expressing their full support and cooperation to UNEP for the development and implementation of capacity-building programmes directed at target groups, and undertook to contribute towards the programmes for the capacity-building of the Judiciary.

In addition, UNEP established an Ad Hoc Advisory Group of Judges’ representatives of the different regions and legal systems to advise UNEP in the development and implementation of this programme of work especially in regard to the training and capacity of judicial officers. The composition of the Advisory Group is changing in the course of the programme. In its initial stage the Ad Hoc Advisory Group of Judges comprised the following:  Chair – Hon. Justice A. Chaskalson, Chief Justice of South Africa; Members – Hon. Justice Barnabas A. Samatta, Chief Justice of Tanzania; Hon. Justice Hilario G. Davide Jr., Chief Justice of the Philippines; Hon. Justice Guy Canivet, President of the Court de Cassation of France; Hon. Justice Vyacheslav M. Lebedev, Chief Justice of the Russian Federation; Hon. Justice Falefatu M. Sapolu, Chief Justice of Samoa; Hon. Justice Adel Omar Sherif, Deputy Chief Justice of Egypt; Hon. Justice Clifford Wallace, Chief Judge Emeritius, United States Court of Appeal; Hon. Justice Vladimir Passos de Freitas, Federal Judge at the Court of Appeal of Brazil; and Hon. Justice Paul L. Stein Am, Judge, New South Wales Court of Appeal and Judge of the New South Wales Supreme Court.

2.4 UNEP Governing Council Decision 22/17 on Governance and Law

 

After presentation of the outcomes of the Global Judges Symposium at the inauguration of the 22nd Session of the UNEP Governing Council,[48] the General Council unanimously adopted decision 22/17 II A which expressly calling upon its Executive Director to support:

the improvement of the capacity of those involved in the process of promoting, implementing, developing and enforcing environmental law at the national and local levels such as Judges, prosecutors, legislators and other relevant stakeholders, to carry out their functions on a well informed basis with the necessary skills, information and material with a view to mobilizing the full potential of the judiciaries around the world for the implementation and enforcement of environmental law, and promoting access to justice for the settlement of environmental disputes, public participation in environmental decision-making, the protection and advancement of environmental rights and public access to relevant information”. [49]

The objective was to mobilize the potential of the Judiciary around the world for the implementation and enforcement of environmental law and to promote access to justice for the settlement of environmental disputes, public participation in environmental decision-making, the protection and advancement of environmental rights and public access to information.

The strategy adopted was the Executive Director of UNEP to support the improvement of the capacity of those involved in the process of promoting, implementing, developing and enforcing environmental law at the national and local levels such as Judges, prosecutors and other relevant stakeholders, to carry out their functions on a well-informed basis with the necessary skills, information and materials.

The programme under phase I also include the development of a series of environmental law training materials, to be translated into the official languages of the UN. These materials include: A UNEP Manual in Environmental Law; A Judicial Handbook on Environmental Law; Legal Drafters handbooks on specific topics such as water, energy, land and soil management and economic instruments, such as the Guidebook for Policy and Legislative Development on Conservation and Sustainable Use of Freshwater Resources; Two UNEP collections of Texts of Selected Documents on International Environmental Law: – Selected Texts on Legal Instruments in International Environmental Law; Compendia of Summaries of Judgments in environment-related cases from around the world.

Under phase two, which is formulating national capacity-building plans by sub-regional needs assessment and planning meetings of Chief Justices, the following has been achieved: Lviv, 16-17 May 2003, for Chief Justices of Eastern and Central Europe; Bangkok, 17-18 June 2003 for the Mekong region countries; Bueno Aires, 23-24 September 2003, for the Latin American Countries; Nairobi, 10-11 October 2003, for Anglophone African Countries; Johannesburg, 7-8 December 2003, for Southern African countries; Auckland, 15-17 December 2003, for Asia and the Pacific; Cairo, 29-31 May 2003, for the Arab countries; Trelawny, Jamaica, June 12-14 2004, for the English-Speaking Caribbean countries; Paris, February 2005, for the Francophone African countries.  

In this context, UNEP also organized in cooperation with other partners, the following meetings: the symposium on “Johannesburg Summit Next Steps: The Role of the Judiciary in the Implementation and Enforcement of Environmental Law”, held in Rome, on 9-10 May 2003, and organized in cooperation with IUCN and the International of the Environment Foundation (ICEF); the Meeting for the Establishment of a European  Union Judges Forum for the Environment, held at the European Court of Justice, Luxembourg, on 26 April 2004. During the meeting, the participants adopted the Statute of The European Union Forum of Judges for the Environment. Similar associations are being established in different regions. The draft Statute of the Arab Judges Union for the Protection of the Environment was established by a decision at the Cairo Meeting in May 2004. 

 2.5 A Roundtable Dialogue on Advancing MDGs through the Rule of Law

 

In February 2005, prior to the 23rd Session of the Governing Council/Global Ministerial Environment Forum (GC-23/GMEF), UNEP organised a Roundtable Dialogue on advancing MDGs through the rule of law, affirming that an independent Judiciary is one of the key elements of a legal system operating under the rule of law and that the Judiciary is also a crucial partner in achieving the appropriate balance between environmental, social and developmental considerations to achieve sustainable development: moreover, ensuring an informed and active Judiciary is crucial to achieving the MDGs.


3.0       CHAPTER THREE: LEGISLATIVE AND INSTITUTIONAL FRAMEWORK FOR THE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA

3.1 Introduction

 

Widespread concern about the need for global action for the protection of the natural environment is a relatively recent phenomenon. General public awareness of the problems relating to the global environment and need for coordinated multilateral action to address these problems was not evident even a few decades ago. With the wider dissemination of information relating to the ever increasing environmental challenges, international concern has grown steadily over the years. Some interstate efforts to address problems relating to the oceans, endangered species, and other natural resources, date back to the nineteenth century, but many problem areas relating to the environment remained to be addressed.[50]

In Kenya, prior to the enactment of the Environmental Management and Coordination Act, 1999[51] there was no integrated body of National Environmental Law. Instead the law governing environment matters was confined to common law and various statutes regulating sectors such as health, water, forestry, agriculture and industry.

3.2 International Environmental Law and Principles[52]

 

International environmental law is a subset of international law; and international law has been developing over a long period of time. Article 38(1) of the International Court of Justice Statute establishes a practical hierarchy of sources of international law in settling disputes.[53] First, relevant treaty provisions applicable between the parties to the dispute must be employed. In the event that there are no applicable treaty provisions, rules of “customary international law” should be applied. If neither a treaty provision nor a customary rule of international law can be identified, then reliance should be placed on the general principles of law recognized by civilized nations. Finally, judicial decisions and writings of highly qualified jurists may be utilized as a subsidiary means of determining the dispute.

Kenya has ratified a number of MEAs, inter alia, the 1978 Bonn Convention on Migratory Species (CMS), the 1992 Rio De Janeiro Convention on Biological Diversity (CBD), the 1974 Washington Convention on International Trade in Endangered Species (CITES) and the 1971 Ramsar Convention on Wetlands of International Importance as Waterfowl Habitat. However, since Kenya is a dualist state the conventions have to undergo transformation into the national legislation in order to be enforceable within the justice system nationally. However, they remain binding internationally with or without transformation as long as ratification is given.[54] But, the creation of binding rights and obligations is subject to the treaty’s entry into force.

As identified above, Article 38 (1) (c) recognizes general principles of law recognized by civilized nations as an authoritative source of international law. Principles and concepts embody a common ground in internal environmental law; and they both reflect the past growth of international environmental law and its future evolution. Most of these principles have been captured in the body of various multilateral environmental agreements. The 1972 Stockholm Declaration on Human Environment[55] and the 1992 Rio Declaration on Environment and Development[56] recognized the need for increased public participation and education on environmental issues.

Principle 1 of the Stockholm Declaration asserts the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well being. The duty to improve the environment for the future and present generations is recognized. Principle 19 of the Stockholm Declaration advocates for education in environmental matters for the younger generation as well as adults giving due consideration to the underprivileged in order to broaden the basis for an enlightened opinion and responsible conduct by individuals, enterprises and communities in protecting and improving environment in its full human dimensions.

Under the Agenda 21[57] and the Rio Declaration[58] the parameters of sustainable development[59] are clarified.

Principle 4 of the Rio Declaration provides:

“In order to achieve sustainable development, environmental protection shall constitute an integral part of the development and cannot be considered in isolation from it.”

 

Principle 25 of the Rio Declaration provides also:

Peace, development and environmental protection are interdependent and indivisible”.

Principle 4 and Principle 25 makes clear the policies and activities in various spheres, including environmental protection must be integrated in order achieve sustainable development. Principle 10 of the Rio Declaration provided for access to information, public participation and access to justice in environmental matters. The Governing Council (GC) of the United Nations Environmental Programme noted development of UNEP Guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters on 21 June 2008,[60] and is expected to adopt the Guidelines at the special session of the GC in 2009.

Kenya recognizes the above principles and some are expressly articulated under EMCA. Section 3(5) of EMCA borrows several principles and provides that in exercising the jurisdiction conferred upon under subsection (3), the High Court shall be guided by the following principles of sustainable development. First, the principle of public participation in the development of policies, plans and processes for the management of the environment; secondly, the cultural and social principles traditionally applied by any community in Kenya for the management of the environment and natural resources in so far as the same is not repugnant to justice and morality or inconsistent with any written law; the principle of international cooperation in the management of the environmental resources shared by two or more states; the principle of intergenerational and intragenerational equity; the polluter-pays principle; and the precautionary principle.

3.3 National Environmental Legislations

 

National environmental law includes rules at the national level that protects the environment. These consist of the legislation, standards, regulations, institutions and administrations adopted to control activities damaging to the environment within a state.[61]

In many countries the functions of environmental legislation include the following: Reflection of the particular policies and schemes considered by the legislature to be most appropriate for achieving the desired goals; establishment of the institutional machinery for giving effect to those principles and schemes; empowering of the related institutions and partners to function efficiently within the framework of policy parameters; establishment of legislative techniques and regulatory approaches, such as command and control regimes, economic incentives and land use planning and zoning; and provision of adequate financial and human resources.[62]

3.3.1 Physical Planning Laws[63]

 

Physical planning is basically the mechanisms for the management of the environment and in the majority of the countries it served for along time as the only framework for environmental management. Physical planning essentially refers to the organization of the use of physical space and its environmental role arises from its ability to separate incompatible uses because incompatibility in use tends to be the primary positive factor in the perception of pollution. The background to physical planning is to be found in common law specifically in the law relating to property interests in land.

In Kenya there are three principle statutes that deal with physical planning: The Lands Control Act, 1967, The Physical Planning Act, 1996 and the Environmental Management and Coordination Act, 1999.

The Land Control Act regulates development, use and subdivision of agricultural land is used and developed in such a way that good husbandry is not compromised. Consequently the process required that the regulatory institution known as the Land Control Board must be satisfied that the user of the land or the prospective user is capable of putting the land to productive agricultural use.

The physical Planning Act is a much more comprehensive statute that provides for physical planning and development control. The Act institutionally places the functions of physical planning in the office of the Director of Physical Planning, administratively an officer in the Ministry of Lands. The Act states that the Director of Physical Planning is the Chief Government Advisor on all matters relating to physical planning and in that capacity he shall formulate physical development policies, prepare physical development plans, advise the Commissioner of Lands on the alienation of government lands, advise the Commissioner of Lands and the Local Authorities on the most appropriate use of land and require local authorities to ensure the proper execution of physical development control. The Act establishes committees known as physical planning liaison committees at National, Provincial and District levels. The function of these committees is to act as an appeal mechanism from the decisions of the Director of Physical Planning.

As noted earlier, part 6 of the EMCA, 1999 deals with Environmental Assessment. Under section 8, notwithstanding any approval, licence, permit granted under any law in Kenya, before financing, commencing, proceeding with, carrying out, executing or conducting a specified project, the project proponent must apply for and obtain an environmental impact assessment license. This application is made to the NEMA which is established by section 7 of the Act.

3.3.2 Sectoral Environmental Laws[64]

Water Act, 2002[65] is based on the common law position that the landowner owns everything on land and no property in running water, air and light. The land owner whose land abuts on a water course is known as a riparian owner. A riparian owner is considered to have a natural right to use running water. Because the right to use riparian water is shared by all riparian owners, its use must be reasonable. Under section 3 of the Act, every water resource is vested in the State. Under section 25 a permit is required for any use of water from a water resource, any drainage from a swamp. The discharge of a pollutant into any water resource is an offence.

On the whole laws dealing with the management of waste are found in the Public Health Act[66], the Local Government Act[67], and more recently the EMCA, 1999. For example, section 116 of Local Government Act imposes a duty on every local authority to take lawful necessary and reasonable measures for maintaining its districts at all times in a clean and sanitary conditions preventing the occurrence therein or for remedy or causing to be remedied any nuisance or condition liable to be injurious or dangerous to health. It also imposes on the local authority the responsibility to take action against any person causing or responsible for the continuance of any such nuisance or condition; and the EMCA under section 91 gives power to the Standards and Enforcements Review Committee to recommend criteria for classifying waste.

Other laws in this area of waste include, the Medical Practitioners and Dentist Act[68] which establishes the Medical Practitioners and Dentist Board under section 4; the Scrap Metal Act[69] which imposes a license to be issued by the police before dealing in scrap metal; the Use of Poisonous Substances Act[70] requires the Minister to make regulations to protect persons from poisoning substances arising from the storage, transport, sale and disposal of such substances; Finally, the Food, Drugs and Chemical Substances Act[71]; and the Radiation Protection Act[72] which controls import, export, possession and use of radioactive substances and irradiating apparatus (equipments which emit radio activity).

In Kenya, a diverse range of laws deal with the management of hazardous chemicals and substances. They include the Pest Control Products Act[73]; the Pharmacy and Poisons Act[74]; the Energy Act[75]; Fertilisers and Animals Foods Act[76]; and the Foods, Drugs and Chemicals Act[77]. All of these laws are product specific and the objective is precautionary which is an international principle relating to classification, packaging and labeling products. In addition, EMCA has introduced a parallel system of environmental management superior than the sectoral laws. However, it is not clear whether EMCA is superior to pieces of legislations which are being enacted after the EMCA, 1999.

3.4 Environmental Institutions in Kenya

 

The institutions are both international and local.

3.4.1 United Nations Environmental Programme and UN Habitat

This institution can be traced back to the 1972 Stockholm Conference on Environment and Human Settlement which came as a result of the effects of industrial pollution and urban settlement especially to the West. The conference agreed to establish an environmental program with the UN in order to gather scientific data and information on the problem of the environment and to put forward proposals on dealing with the environmental problems identified. That programme was initially located in New York and from 1974 it was relocated to Nairobi by a General Assembly decision. UNEP has become the main institution in the field of environment. The conference also established a center for human settlement also located in Nairobi and known as HABITAT focusing on urban settlement.

3.4.2 Institutions under EMCA, 1999

 

The main management organs established by EMCA are the National Environmental Council (NEC) and the National Environmental Management Authority (NEMA). The NEC is responsible for policy formulation, setting national goals and objectives. Setting priorities for environmental protection, and promoting cooperation amongst public and private organizations engaged in environmental protection programmes.[78] NEMA is the main administrative organ and it is established to exercise general supervision and coordination over all matters relating to the environment.[79] NEMA is also mandated to promote the integration of environmental considerations into development policies, plans, programs and projects.[80]

EMCA also avails a number of adjudicatory mechanisms for environmental matters that members of the public can utilize to secure environmental justice without necessarly having recourse in the High Court. The Public Complaints Commission (PCC) and the National Environmental Tribunal (NET) are vested with broad powers to investigate, review and adjudicate on any allegations or complaints against any person or against the authority (i.e. NEMA) in relation to the coordination of environment in Kenya.[81]

While the PCC offers an informal channel for access to justice against the activities and operations impacting on environment in Kenya, there is no guarantee its recommendations to NEC will be enforced. The NET on the other hand has an appellate jurisdiction to review the administrative decisions of NEMA.

3.4.3 Ministry of Environment

 

The Ministry of Environment is mandated to protect, conserve and manage the environment and natural resources through sustainable exploitation for socio-economic development aimed at eradication of poverty, improving living standards and ensuring that a clean environment is sustained now and in the future. The main functions include to: Monitoring and coordinate environmental activities and enforce compliance of environmental regulation and guidelines; environmental and natural resources policy formulation, analysis and review; sustainable management and conservation of the environment and natural resources; continuous development of geo-database for integrated natural resources and environmental management systems; conduct applied research and dissemination of research findings in forestry, land resources and geology; carry out geological surveys, mineral exploration and regulation of mining and use of commercial explosives.

Under the Ministry there are three departments as follows: Department of Resource Survey and Remote Sensing (DSRS) whose main function is to monitor the conditions, trends of range lands through livestock, vegetation and wildlife surveys; Mines and Geology Department is divided into mining and geology divisions, the geology division carry out surveys and research, maintain a geo-scientific database, information and administration of legislations relating to mineral resources and the mining division involves in mining and policy formulation as well as advising the Government on policy matters; The Kenya Meteorological Department provides meteorological and climatologically services to agriculture, forestry, water resources management, civil aviation and the private sector including industry, commerce and public utilities for the better exploitation and utilization of natural resources for national development.

4.0 CHAPTER FOUR: THE ROLE OF JUDGES IN IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW IN KENYA: A PERSPECTIVE

4.1 Introduction

The role Judges have already been identified earlier. They include implementation of laws and the enforcement of laws. We have also seen that in carrying out this role certain guidelines must be followed to ensure universal interpretation. This includes capacity building and other Judges’ programmes. In particular, Principle 10 of the Rio Declaration emphasizes on access to information, public participation and access to justice.

 In addition, Article 9 of the Aarhus Convention requires,

“3…each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedure to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.[82]

 

It continues,

4…the procedure referred to in paragraph… 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.”[83]   

4.2 Access to Justice

The Rio Declaration, Principle 10, states “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities and the opportunity to participate in decision-making process. State shall facilitate and encourage awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

Agenda 21 underlines that public participation in environmental decision-making is one of the fundamental prerequisite for the achievement of sustainable development. In fact, the Aarhus Convention (Europe) concerning public participation and right of access to information and access to justice in environmental matters is a direct result of an expression of principle 10 of the Rio Declaration on Environment and Development.

Court decisions affect to a larger extent the enforcement and implementation of environmental law, and specifically, access to justice. In Prof. Wangari Maathai Pius, John Njogu, John Makanga v City Council of Nairobi, Commissioner of Lands and Market Plaza Limited[84] the plaintiff sued the defendants and seeking, inter alia, an injunction to restrain the third defendant from selling or carrying out any construction work upon a particular parcel of land, due to its alleged illegal acquisition. The third defendant challenged the standing of the plaintiff to bring the action.

The court held the plaintiff the plaintiff had no locus standi to seek injunctive relief as they did not have sufficient interest to bring the action. The Court established that section 222 of the Local Government Act 1972, only allowed the Attorney General to sue on behalf of the public for the purpose of preventing public wrongs. A private individual could not do so on behalf of the public, though he might be able to do so if he would sustain injury as a result of a public wrong. However, the court has no jurisdiction to entertain such claims by private individuals who had not suffered and were not likely to suffer damage.

In effect, this case locks out private individuals from accessing courts on public interest grounds; particularly, sections such as section 222 of the Local Government Act which expressly identifies the Attorney General as having the requisite standing. Other requirement to be fulfilled, as per the ruling, is establishment of injury (or sufficient interest in the matter) on the part of the plaintiff. Clearly this precedent is bad because it is in breach of Principle 10 and Agenda 21 as set out by UNEP.

Subsequent cases have, however, overruled the above precedent as bad law. In Paul Nderitu Ndungu & Others v Pashito Holdings Limited & Shital Bhandari[85] the defendant owned some parcels of land at Loresho, within the city of Nairobi. The parcels were subdivided and several of their sub parcels were reserved for public utility. After the Commissioner of Lands purported to cancel the titles of the properties, the plaintiffs sought a declaration that the allocation of the properties owned by the defendant was null and void ab-initio, and the corresponding injunction to restrain them from taking possession of them by fencing or developing the said parcels. Plaintiffs consider the parcels are public utility and that the defendants acquired them in an illegal way. Defendants challenged the locus standi of the plaintiffs to bring the suit alleging their lack of sufficient interest.

It was held that considering the public utility character of the parcels, the court stated the wide public interest of the issue and granted the locus standi of the plaintiff. Unlike the previous case, this case expands locus standi by bringing in a new concept of public interest. Private individuals are now allowed to bring environmental cases to court on public interest grounds. Subsequently, the Environmental Management and Coordination Act, 1999 under section 3 expand the locus to include an individual’s right to ‘a clean and healthy environment’.

In other cases the above position has been confirmed, in Republic v Minister for Information and Broadcasting and Ahmed Jibrid exparte E. A. Televisions Network Ltd, Khamoni, J, stated that an applicant only needs to demonstrate that he or she has a “sufficient interest” in the matter before the court and comply with the procedural requirements of Order 53 of the Civil Procedure Rules in order to be granted standing.[86]

More recently in the case of Albert Ruturi and Others v. Minister for Finance & Another, the court stated that “as part of reasonable, fair and just procedure to uphold the constitutional guarantees, the right of access to justice entails a liberal approach to the question of locus standing.”[87]

Perhaps, a controversial decision relates to that of Justice E. Mukule who once in his ruling in R v NET, NEMA, Malindi Greenbelt Movement & Malindi Residents[88] tried to limit locus standi by arguing that only affected parties could bring environmental matters in court. This position has been rejected and it was not followed in Giakaro Grace v 4 Others[89].

Elsewhere in other parts of the world, access to environmental justice has been expanded to include right to sue on behalf of succeeding generations. A Philippines Supreme Court decision in Juan Antonio Oposa and Others v The Honourable Fulgencio S. Factoran and Another[90] the Supreme Court held that the Petitioners had he right to sue on behalf of succeeding generations because every generation has a responsibility to the next generation to preserve the rhythm and harmony of nature for the full enjoyment of a balanced and healthful ecology.

4.3 Appraising Past Environmental Decisions

4.3.1 Sea Star Malindi Ltd v Kenya Wildlife Services[91] 

The applicant sought orders of certiorari, mandamus and prohibition against the decision and actions of Kenya Wildlife Services (KWS) in banning and restricting it from building a hotel in Malindi. The KWS had ordered the applicant its construction on the land allegedly because there was a 100 feet space between the applicant’s land, the high water mark, which space fell under the jurisdiction of KWS under the Wildlife (Conservation and Management) Act.[92] KWS stated that the area needed to be preserved in order to ensure the protection of the fragile ecosystem of the area.

The applicant argued that the land had always remained freehold private land and that that there was no record showing that it had been acquired by the Government for any public use. It stated that its documents of titles and the survey records showed that the land extended up the Malindi Municipality had given its approval to the building plans.

The court held, inter alia, that in situation where private land is required to be protected area so as to protect the ecosystem for the greater good of the environment the procedure provided by section 6(1) of the Wildlife. The actions and decisions of the respondents were ultra vires and illegal and remained so unless the legal requirements of the Wildlife Management Act and Land Acquisition Act were complied with it was also against section 75 of the Constitution.

In my view this decision is controversial owing to the existence of the precautionary principle in international environmental law. It is worth noting that this decision did not give enough attention to the contention by KWS that the area needed to be preserved in order to ensure the protection of the fragile ecosystem of the area. Instead, lack of want of procedure took centre stage. Under principle 15 of the Rio Declaration 1992, in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

 

4.3.2 Peter Kinuthia Mwaniki & 2 Others v Peter Njuguna Gicheha & 3 Others[93]

This case represents what I regard as a proper decision making by an environmental court. In this case the 3 plaintiffs sued the 4 defendants jointly and severally seeking a permanent injunction to restrain the defendants, their agents and servants from constructing or continuing to construct a slaughter house in the parcel of land and known as Plot No Zone 6 within Limuru Township.

The plaintiffs suit is grounded on the fact that the defendants have contravened the law in that their act of building a slaughter house in the neighbourhood is in contravention of section 58 and 75 of the EMCA, as they have neither sought and obtained a license to discharge effluent, nor have undertaken an Environmental Impact Assessment, or obtained an environmental assessment license. The plaintiff claimed further in paragraph 14 of the plaint, further, the plaintiff avers that in failing to comply with the above stated environmental statutory provisions, the defendants acts are likely to cause injury to the plaintiff and is a violation of the plaintiff basic right to clean and healthy environment.

The defendant denied the plaintiff’s claim in the defence and at paragraph 8 thereof stated, ‘‘further the defendant state that the EMCA does not apply retrospectively, but in any event the defendants have not breached any of its provisions.

In his judgment the learned Judge turning to the defence filed, and particularly at paragraphs 7 and 8 which is outlined in this judgment, the Judge found that no evidence was adduced in court to show that the slaughter house was being constructed to international standards, with specific regards to water, waste disposal….’’ The learned Judge also rejected the defence in paragraph 8 because the Judge believed the plaintiffs’ evidence which shows that the defendant breached the relevant provisions of EMCA,1999 especially section 58 of the application for an EIA license which the defendants did not and still do not have. As the defendants had not made any provisions for disposal of effluent discharge, yet their butchery was almost ready for use, the Judge found that they were likely to contravene the provisions of section 75 of the Act. Finally, though the matter of ‘locus’ was not raised in the defence or the issues filed in court, the Judge nevertheless felt that he should refer to it, and say that the plaintiffs, though not the owners of the land in dispute, nevertheless have the authority being derived from section 3[3] of EMCA which states, if a person alleges that the entitlement under subsection [1] to a clean and healthy environment]has been, or is likely to be contravened in relation to him, then without prejudice to any other act with respect to save matter which is lawfully available, that person may apply to the High court for redress and the High court make orders, issues such writs or give directions as it may deem appropriate. [a]to prevent, stop or discontinue any act or omission deleterious to the environment.

The above case demonstrates the wide nature of Section 3(3) to allow anybody, so far, to be able to challenge any matter relating to environment. This liberal approach adopted by the courts has made environmental litigation in Kenya very successful in the recent past.

 

4.3.3 Rodgers Nzioka & 2 others v. Tiomin Kenya Limited[94]

Tiomin Kenya Ltd, the defendant, was a locally incorporated subsidiary of Tiomin Resources Inc. of Canada.  Tiomin Kenya obtained licences to prospect for titanium in Kwale District.  The plaintiffs were the local inhabitants of the prospective mining area and brought this suit on their behalf and on behalf of other inhabitants. 

The plaintiffs sought an injunction to restrain the carrying out of the mining activity in Kwale and for declaratory order that any mining carried out there would be illegal.  They also prayed for general damages.  The plaintiffs were concerned not only that Tiomin Kenya was not offering them adequate compensation but also that mining activity would result in numerous environmental and health problems which could not be adequately compensated in damages.  They argued that Tiomin Kenya had not submitted an Environment Impact Assessment Plan and that it had not been licenced under section 58 of the Environmental Management and Co-ordination Act, No.8 of 1999 (the EMCA).

For its part, Tiomin Kenya stated that it was merely prospecting and not mining titanium and that it was acting pursuant to a licence issued under the Mining Act (Cap. 306).  It stated that it was legally acting as an agent or nominee for Tiomin Resources Inc of Canada.

Hayanga, J, stated that in cases where a person seeks to vindicate his or her right to a clean and healthy environment, he or she does not need to demonstrate a right or interest in the land alleged to be invaded.  The Judge reasoned that the traditional tests for the grant of an injunction established in the celebrated case of Giella vs. Cassman Brown[95] may need to be revised in cases concerning environmental degradation.  His major opinion was that since environmental degradation affects the public at large, the balance of convenience test should be applied with a view to considering the convenience of the public as opposed to that of the parties to the suit.  Further, he stated that EMCA prevails over the sectoral legislation where there is conflict, on the reasoning that “where the provisions of one statute not expressly repeal the earlier Act, the courts admit an implied repeal.”  He held that EMCA prevailed over the Mining Act.

This case demonstrates the superiority of EMCA over other sectoral environmental laws and thereby successfully dealing with the contradictions that were already manifest.

4.3.4 Lereya & 800 Others v. Attorney General & 200 Others[96] (the famous toothless goat case).

The five plaintiffs together with 796 other persons describing themselves as the affected resident of Marigat Divison of Baringo District in the Rift Valley Province sued the Attorney General, the Minister for Environment and Natural Resources and the National Environment Monitoring Authority (the 1st, 2nd and 3rd defendants respectively) seeking the eradication of a week plan on their land.  The plaint averred that about the year 1983, the government of Kenya authorized the Food and Agriculture Organization (FAO) to introduce the weed, Proposis Juliflora, in Ng’ambo Location of Marigat Division, ostensibly to curb desertification.  After its introduction, the weed, which is invasive in nature, allegedly went out of control so that in twenty years, it had overgrown and continued to spread over Marigat and Magutani Divisions causing harm to humans, livestock, and the environment.

Counsel for the 1st and 2nd defendants raised a preliminary objection to the suit, which was supported by the 3rd defendant.  The objection was based on four grounds:  first that the plaintiffs had not served the statutory notice of intention to sue on the Attorney General as required under the Government proceedings Act (Cap 40) section 13A.

The plaintiffs had exhibited a notice stated to have been issued by the trustees of Ilchamus Community Development Trust.  While the notice showed its date of signature to be 29th September 2005, the rubber stamp affixed to it purportedly signifying the Attorney General’s receipt of the notice bore the date of the previous day, i.e. 29th September 2005.

The second ground of the preliminary objection was that the suit was barred by statutory limitation.  The basis for the plea of limitation was in essence that since the government was said to have introduced the week in 1983 and the suit was filed in 2006, i.e. over 20 years later, the suit was time-barred.  In opposing this argument, plaintiff’s counsel submitted that because the environmental harm which was the subject matter of the suit was continuing, then limitation did not apply.

The final ground of the preliminary objection was that the plaintiffs had no specific interest in the subject matter and therefore, they lacked locus standi and that there was mis-joinder of the 2nd defendant, the Minister for Environment and Natural Resources, as he was not capable of being sued under the provisions of section 12 of the Government Proceedings Act.

The court held that EMCA filled the gap existing in Kenyan law by being the first statute containing provisions specifically addressing the issue of locus standi in matters of environment.  Specifically at page 770 the court stated that “there is no plea in the present suit that it is frivolous, vexatious or an abuse of the court process.  On the basis of section 3(3) and (4) of EMCA; we hold that the preliminary objection based on the ground of lack of locus standi has no merit and is hereby also dismissed.”

This case confirms the wide nature of section 3(3) and (4) of EMCA as regards the question of locus standi. Other Judges have, however, wrongly restricted locus despite the provisions.

 

4.3.5 Nakumatt Holdings Limited v National Environmental Management Authority & Another[97]

This case involved the Appellant appealing against the 1st Respondent’s approval of the EIA Project Report submitted by the 2nd Respondent in support of the application for an EIA licence for the development of a housing estate to be known as Eagle Plains Housing Estate on plot L.R. No. 209/10829 Nairobi. The land on which the estate is proposed to be adjoins the Headquarters of the Appellant and lies in an area off Mombasa Road. Prior to seeking an EIA licence the 2nd Respondent had begun the construction of the project, apparently unaware of the requirement of the EMCA, 1999 but on being informed on the need of an EIA licence it stopped construction.

The Appellant’s objection was that the proposed residential project would not be in harmony with the existing industries surrounding the plot, of which the Appellant’s activity was one. The Appellant claimed that the air pollutions in the area are higher than that of World Health Organization standards for long term human exposure and that heavy traffic density and 24 hours industrial operations produce high noise levels for residential development. In addition, the Appellant argues that the proposed development which was a proposal to construct 350 unit housing estate in an area where not less than 13 industries were located was “out of character with its surroundings” consequently, it could not be approved on the basis of the project report alone, and required a full Environmental Impact Assessment study.

In evidence the Appellant faulted the EIA project report on the grounds that it proceeded only on the basis that the only relevant consideration was that potential impact of the project in the area on which the proposed project was to be located. On this basis, the Respondent had come to the conclusion that there were no potentially adverse impacts which the project was likely to inflict on the environment in its locality that could not be adequately mitigated. In the Appellants view, this was completely the wrong premise on which to have proceeded.

What the EIA report should have done, in Appellants view, was to look at the potential impact of the proposed project of the environment in the locality. Had they done so, they would have realized that an area with industrial activities, an allegedly high traffic and noise pollution levels, the perceived risks of explosions arising from the manufacture of gas cylinders, possible danger from the manufacture of vaccines thought to be going on in the vicinity and radiation arising from mobile phones transmitters located nearby, was not an appropriate areas in which to locate a major residential estate. But because the EIA study team had not approached the matter in that way, they had not found it necessary to collect the relevant data that would have demonstrated the inappropriateness of this location for the proposed project.

The witnesses for the Respondents defended the decision to grant the approval on the basis of the project report alone. They argued that the area in which the project was located had been designated in the Physical Planning laws as Zone 9, in which both light industrial and residential development are allowed. They pointed out that the relevant planning authorities including the Ministry of Lands and the City Council of Nairobi had granted the required permits for the proposed development…. The witnesses further gave evidence of the actual mixed developments that are to be found in the area including, residential estates, a hotel, godowns, other commercial establishments and light industries.

In its ruling the Tribunal noted that the purpose of EIA licencing process as prescribed by Part VI of EMCA, 1999 and Environmental (Impact Assessment and Audit) Regulations[98] which are made thereunder is to assess the likely significant impact of proposed project on the environment. In deciding on he nature of likely impacts, Account must be taken on the status of the area underwhich the project will be undertaken. Consequently, the levels of air pollution, traffic noise and other features of the environment in the area off Mombasa road in which the project is to be carried out are relevant considerations….What is critical for these proceedings is to ascertain the actual status of the environment in the locality.

The Tribunal continued, the evidence showed that the, for this purpose, in the absence of statutorily prescribed limits, Kenya relies on the WHO Standards. The claim by the Appellant that residence within this locality would expose those living within the proposed estate to serious health risks or account of high levels of pollution in the area were not substantiated by credible evidence.

The Tribunal also found that no evidence was adduced by the Appellant’s witness or anyone else that this project would adversely impact on the environment in ways that could not be mitigated by the measures that had been proposed in the EIA Project Report. In addition to the proposed mitigatory measure, the 1st Respondent and other regulatory authorities can resort to provisions available in the EMCA, 1999 and other laws, among them, the requirement for regular environmental audits, to require that the activities being carried on in the area within which the proposed project is to be located do not cause unavoidable environmental degradation. Accordingly, there are mechanisms in place for managing the potential adverse environmental impacts that might arise from this project.

In dismissing this appeal the tribunal acknowledge the existence of irregularities, however, in rejoinder they took the view that these irregularities do not vitiate the decision taken by the 1st Respondent on the central issue, that is, that the development of a residential estate in the proposed location is not likely to introduce significant adverse environmental impacts which cannot be mitigated through appropriate measures, such as those proposed in the EIA Project Report.       

It therefore emerges that while there could be a legitimate need for the protection and conservation of the environment, the same must be balanced with the need to develop. This has been what is now termed as sustainable development in current environmental jurisprudence.

5.0 CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS

5.1 Introduction

This chapter attempts a summary of the dissertation itself with the aim of drawing reasonable conclusions and recommendations based on the research. These conclusions and recommendations espoused through fair commenting and judgment aimed at reflecting on the role of the Judge. Suggestions for further research have been attempted.

5.2 Restatement of the Objectives of the Research

 

The objectives of the research were identified as follows:

  1. To contribute to the development of environmental discourse on the role of Judges in the implementing ad enforcing of environmental law;
  2. To identify the major challenges Judges face in implementing and enforcing environmental laws in courts and tribunals;
  3. To appraise on the achievements of the UNEP Judges Environmental Programme and suggest recommendations;
  4. To find out the impact of bad environmental decision making in the implementation, development and enforcement of environmental law;
  5. To understand the role of the Judge in the Implementation and Enforcement of Environmental Law

 

5.2 Summary of the Content

This research has revealed that the position of the Judge is unique. As earlier noted, the Judge plays the role of upholding the rule of law, interpreting and enforcement of laws and peaceful settlement of disputes. In carrying out his role, the Judge faces several challenges that extends also to the Judiciary. Lord Woolf identified them as: guaranteeing access to court, ensuring the independence of the Judiciary, and the protection of the environment in the new context of sustainable development. In protecting the environment, the major challenge identified was lack of capacity. The lack of capacity on environmental law has led to poor and non-uniform implementation and enforcement of environmental laws.

While most environmental laws and principles applied nationally and internationally are both progressive and comprehensive, they present a possible challenge to most of the Judges, especially those without environmental law background. This, therefore, justifies the UNEP’s global Judges Initiative to try and improve on capacity not only that of the Judge but also all other legal practitioners. This approach has so far seen a positive progress and many people have benefited. Most significantly is the resource materials published and made available has proven to be invaluable. The periodic global trainings have also proven to be very empowering to the stakeholders around this area.

While Kenya has a comprehensive sectoral laws on environment, it has yet to domesticate/transform all of its international obligations into legislations applicable locally. However, a few aspects of international law and principles have been contained under EMCA and the Judiciary has occasionally applied international principles even where they are not domesticated nationally. There are also a few contradictions and duplications between EMCA and other environmental laws; the jurisprudence available has however confirmed the supremacy of EMCA as opposed to the other environmental legislations.

In terms of institutions, Kenya can be commended for having in place an elaborate system of addressing environmental concerns as well as managing the environment. Without derogating from the gains associated with the same, there is need to streamline environmental management by clearly defining the roles of each institution – Ministry of Environment, Local Governments and institutions under EMCA.  

The determination made by Judges in courts shows the gap existing between legislating around environment and the actual implementation and enforcement of the same. This gap presents a dangerous default towards the preservation and protection of the environment. In essence what this means is that without proper determinations in court the environment may suffer albeit the existence of progressive legal instruments.

5.3 Conclusions

It is emergent in this research that some Judges are not up to the task in the implementation and enforcement of environmental law. A particular attention is seen in the debate around access to justice. Other inconsistencies are also seen in the way cases are decided in courts. Finally, in order to achieve the goal of universal interpretation of environmental law by all Judges a lot needs to be done to increase on a Judge’s capacity.

The role of Judges in the implementation and enforcement of environmental law includes:

  1. The role of the Judge includes the interpretation and enforcement of environmental law, principles and concepts towards environmental protection and conservation;
  2. In making decisions in court the Judge should understand that proper decision making in courts is a crucial guarantee towards environmental protection and conservation nationally and internationally;
  3. Increasingly any development decisions should incorporates sustainable development as a concept in environmental governance;
  4. The Judges plays a crucial role in the development of environmental law and policy, and jurisprudence through their ratios and obiters in deciding environmental matters;
  5. Some Judges in their absolute discretion can facilitate the importation of international environmental concepts, doctrines and principles for application nationally through the court process;
  6. The Judges play a watchdog role to the other branches of Government especially when undertaking development in the country, they also checks environmental administrative institutions and remedies aggrieved persons;
  7. Judges are involved in settlement of disputes and to an extent the maintenance of peace by ensuring environmental protection and conservation;
  8. Judges can ensure members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravenes provisions of its national law relating to the environment.
  9. All Judges should be empowered to be the ambassadors of environment and ensure its conservation and protection;
  10. The training of legal practitioners and Judges at the university and the national professional institutions of law MUST include in their curricular the training on environmental law as a compulsory unit as opposed to an elective unit;
  11. The resource materials developed through the UNEPs’ Global Judges Programme should be disseminated and / or made easily available in all libraries and bookshops for reference, research and training purposes;
  12. UNEP should consider supporting the development of clubs and organizations in the university and outside the university, and the civil society organizations working towards capacity building on environment of the legal practitioners in the Judiciary;
  13. There should be developed a reward scheme to recognize Judges and legal practitioners who have made outstanding and fundamental contributions to the field of environment annually through the judiciary, “The Judges & Legal Practitioners Environmental Award”;

5.3 Recommendations

International Level

National Level

  1. The right to a clean environment should be expressly constitutionalized in Kenya, the previous draft constitutions had attempted to include environmental law in its Bill of Rights[99];
  2. The sectoral laws and EMCA should be reviewed through the National Law Review framework to streamline the contradictions and duplications currently manifest;
  3. The Ministry of Environment, NEMA and other environmental institutions in Kenya should be streamlined (their functions) to ensure effective coordination and management of the environment;
  4.  The mandate to issue environmental licenses should be a strict preserve of NEMA after presentation of EIA report;

10. The establishment of specialized environmental courts at the High Court will reduce the instances of poor decision making around environmental matters;

11. There is a need to establish a national website specifically for environmental cases reporting and resources like in Germany, Austria and Belgium;

12. The introduction of legal aid around environmental matters will ensure more access to environmental justice and improve participation by the public on environmental governance.

5.4 Recommendations for Further Work (Research)

Acknowledging the limitations of this research I recommend the undertaking of the following research:

  1. A baseline survey on the achievements of the Global Judges Programme to establish its effectiveness and achievements so far;
  2. A research study on the role of other legal personnel apart from Judges in the implementation and enforcement of the environmental law;
  3. The effectiveness and efficiency of the existing environmental law and institutions nationally in preserving and protecting the environment.
  4. The feasibility of an annual Judges and Legal Practitioners Award Scheme and its benefit in promoting role of Judges in the Implementation and enforcement of environmental law.

 


[1] The Principles were adopted in the 1972 Declaration of the United Nations Conference on the Human Environment and adopted at the 21st Plenary Meeting of the UN on 16 June 1972 in Stockholm, Sweden.

[2] Act No. 8 of 1999. It came into force in 14th January 2000.

[3] Established under the Environmental and Co-ordination Act, 1999 (Act No.8 of 1999).

[4] Read the Preface to the Second Edition of the IUCN Environmental Policy and Law Paper No. 56 Rev., An Introduction to the African Convention on the Conservation of Nature and Natural Resources, IUCN 2006, at ix.

[5] Ibid at ix.

[6] Klaus Topfer at the time of writing was an Executive Director at UNEP.

[7] Read the Foreword to the Training Manual on International Environmental Law, UNEP 2006, at iii.

[8] The EMCA, 1999 was the first law in Kenya that attempted to integrate existing laws for the coordination and management of the environment.

[9]Act No. 8 of 1999 which came to force on 14th January 2000.

[10] Read the Message from the Executive Director as found in the Judicial Training Modules on Environmental Law: Application of Environmental Law by National Courts and Tribunals, UNEP 2007.

[11] UNEP Global Judges Programme, UNEP 2005

[12] Supra Note 9.

[13] High Court of Kenya, 2006

[14] The 1992 Rio Declaration http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=78&ArticleID=1163

[15] HCCC No. 5403 of 1989.

[16] Supra Note 10

[17] Message delivered at the Judges’ Forum on Environmental Protection: Philippine Environmental Law, Practice, and the Role of Courts, on August 14, 2003, at the PHILJA Development Center, Tagaytay City.

[18] Supra Note 10.

[19] Separate Opinion of Vice-President Weeramantry in the Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ, 1997, General List No. 92, 25 September 1997.

[20] Ogolla D. Bondi, “Environmental Law in Africa: Status and Trends”, International Business Lawyer, October 1995.

[21] UNEP Judicial Handbook on Environmental Law, 2005, Chapter 5

[22] Chapter 8, paragraph 13 of Agenda 21 of the United Nations Conference on Environment and Development held in Rio de Janeiro, Brazil, 1992 UNCED.

[23] Supra Note 20..

[24] Ibid.

[25] Rt Hon Lord Justice Carnwath CVO, Access to Environmental Justice, (Unpublished paper presented at the Aarhus Workshop – Prague April 2008.

[26] The symposium, hosted and chaired by Chief Justice Arthur Chaskalson of South Africa, brought together more than 120 Chief Justices and senior Judges from over 60 countries including several Judges from international courts and tribunals.

[27] Johannesburg 2002.

[28] UNEP Judicial Handbook on Environmental Law, 2005, Chapter 5.

[29] Supra Note 10.

[30] Ibid.

[31] This introduction can also be read from: http://www.unep.org/law/Programme_work/Judges_programme/index.asp, Web Accessed on 13 April 2009 at 2.15pm.

[32] Montevideo Programme III, the programme adopted in 2001, identifies the Judiciary as one of the key target groups for capacity building activities in the field of environmental law.

[33] This information can also be accessed at: http://www.unep.org/Law/Programme_work/Judges_programme/Judges_prog_regional.asp, Web accessed on 29 April 2009 at 4.00pm.

[34] Ibid.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] For more information visit: http://www.unep.org/law/Symposium/Judges_symposium.htm Web accessed on 5 May 2009 at 3.00pm.

[41] The convener was Executive Director of UNEP, Mr. Klaus Toepfer, in close cooperation with Hon. Valli Moosa, the Minister for Environment Affairs and Tourism of South Africa.

[42] “”Paper tigers” can be interpreted to mean some of the comprehensive MEA’s on environmental law.

[43] Quoted from a press conference released by the Department of Public Information – News and Media Services Division – New York on 27 August 2002. The statement captures what I would have said in my summary to this subchapter.

[44] Adopted on 20th August 2002, in Johannesburg , South Africa.

[45] Nairobi, Kenya – 30-31 January 2003

[46] http://www.unep.org/law/Symposium/Default.htm

[47] Ibid.

[48] Held in Nairobi in February 2003 by Justice Arthur Chaskalson (Chief Justice of South Africa).

[49] UNEP Judicial Handbook on Environmental Law, 2005,

[50] See Generally,”Multilateral Environmental Agreements”, in Training Manual on International Environmental Law, (UNEP 2006), pp 1 – 13.

[51] Act No. 8 of 1999.

[52][52] See Also, Training Manual on International Environmental Law, UNEP 2006.

[53] The Sources listed under Article 38(1) are regarded as the Authoritative sources of international law, and thus also of international environmental law.

[54] 1969 Vienna Convention on the Law of Treaties, Article 12.

[55] Stockholm, June 1972.

[56] Rio De Janeiro, June 1992.

[57] Agenda 21 is a statement of principles on how to achieve sustainable development in the 21st centrury.

[58][58] Adopted at the United Nations Conference on Environment and development

[59] See also the Brundtland Commission on Environment and Development Report, Our Common Future, 1978 for definition and findings on Sustainable development.

[60] UNEP/GC.25/INF/15/Add.2

[61] See also The Role of National Environmental Law in the Training Manual on International Environmental Law, UNEP 2006, pp 15 – 22.

[62] University of Nairobi, Environmental Law Notes, 2004

[63] Ibid.

[64] Ibid.

[65] Came into effect in March 2003.

[66] Cap 242 Laws of Kenya.

[67] Cap 240 Laws of Kenya.

[68] Cap 253 Laws of Kenya.

[69] Cap 503 Laws of Kenya.

[70] Cap 247 Laws of Kenya.

[71] Cap 254 Laws of Kenya.

[72] Cap 243 Laws of Kenya.

[73] Cap 346 Laws of Kenya.

[74] Cap 244 Laws of Kenya.

[75] Of 2006.

[76] Cap 145 Laws of Kenya.

[77] Cap 254 Laws of Kenya.

[78] Section 5 of EMCA 1999.

[79] Section 9(1) EMCA 1999.

[80] Section 19(2)(a)

[81] Section 37 EMCA 1999.

[82] Aarhus Convention Art 9 as quoted by Rt Hon Lord Justice Carnwath CVO in his unpublished paper presented at Aarhus Workshop-Prague April 2008 titled Access to Environmental Justice.

[83] Ibid.

[84] High Court of Kenya at Nairobi Civil Case No. 72 of 1994. The case can be accessed from the UNEP Compendium of Summaries of Judicial Decisions in Environment-Related Cases, page 7.

[85] High Court of Kenya at Nairobi Civil Case No. 3063 of 1996; the case can be accessed from the UNEP Compendium of Summaries of Judicial Decisions in Environment-Related Cases, page 6.

[86] [2006] eKLR

[87] [2002], 1 KLR 61

[88] High Court MAHCCMA 3 of 2006. Judgement date, 9th May, 2008

[89] NET No. 25 of 2008

[90] G.R. No. 101083 Supreme Court. The case can be accessed from the UNEP Compendium of Summaries of Judicial Decisions in Environment-Related Cases, page 143.

[91] Miscellaneous Civil Suit No. 982 of 1997.

[92] Cap 376

[93] [2006] eKLR.

[94] [2006] 1 KLR (E&L) 423 at pg

[95] [1973] EA 358

[96] [2006] 1 KLR (E & L) 761

[97] [2005] eKLR; This case was a Tribunal Appeal Net 01/02/2005.

[98] Legal Notice No. 101 of 2003.

[99] Section 67 of the Proposed New Constitution, 2005

EAC Anti-Counterfeit Bill, Bi-lateral Agreements (EPAs), ACTA and Access to Medicine: Intellectual Property Rights should not be the Sword to Slay the Counterfeit Dragon!

September 24, 2010

Introduction
Apart from the national legislations, other regional, bi-lateral and international multilateral negotiations have a direct bearing on access to medicine. Therefore, focus should not only be national, but also, at the regional and international levels. As will be seen, the EAC Bill, EPAs and ACTA seek to use intellectual property rights as a yardstick for fighting counterfeit war. The World Health Organization has recognized both ‘brand names’ and ‘generic drugs’ as capable of being counterfeited. And since generic drugs have no IP rights holder (since the rights have expired), there is a danger that the laws and agreements being proposed may affect availability of generic drugs in our public health systems thereby giving a major blow to access to medicine.

It should be noted that at the EAC, there are also positive steps that will bring about benefits on access to medicine situation; the HIV and AIDS Bill entrenches access to medicine, and the Protocol on the Use of TRIPs Flexibilities also advocates for improved access to medicine.

These two documents must be mid-wifed by the civil society and any attempt to water their contents down should be resisted.

EAC Anti-counterfeit Bill
The Bill announces itself as, “An Act of the Community to prohibit trade in counterfeit goods, to establish national anti-counterfeit boards and for connected purposes.” However, concerns have already been raised by civil societies and local generic manufactures of the possible impact of the EAC Bill on access to Medicine: -

This is because:-
1. Since it is financed by the Investment Climate Fund for Africa, its focus is “trade” or “investment climate” related and not human rights
2. The EAC Act takes precedence over national laws (s. 1(4).
3. The EAC Bill recognizes plants breeders’ rights as intellectual property (s.2).
4. Establishment of National Anti-Counterfeit Boards with mandate to combat counterfeiting trade do not take into account local institutions e.g. the PPB and Anti-counterfeiting Agency (s. 4l).
5. The provision on in-transit measures ‘through’ or ‘within’ partner states except for private and domestic use is TRIPs+ border control measures (s.12(1))
6. if goods, exported, transported or transshipped exceeds 3 in number it will be deemed for other purposes other than domestic and private use (s.12(2).
7. Designation of special prosecutors, judges and magistrates (s. 15 & 16)
8. Seizure of counterfeit goods by customs officials on own initiative without safeguards (s. 32(6)(a).
9. Criminalization of IPR infringement (s.14)
10. Interim ex parte orders (s.26)

Impact on access to medicine
o Limitation of the use of TRIPS flexibilities
o Legal uncertainty
o Stifling of competition and domestic (generic) production (and innovation)
o Breach of GATT art. V on goods in transit
o Infringement of the authority of the national drug regulatory institutions
o Creation of new norms e.g extra-territorial application of IPRs

Anti-Counterfeit Trade Agreement (ACTA)
Three main components of ACTA (from leaked documents)
1. International cooperation for information sharing between law enforcement agencies, customs and others
2. Establish enforcement practices that promote strong intellectual property enforcement in coordination with right holders and trading partners
3. Legal framework to ensure that authorities and right holders have the appropriate tools for strong IPR enforcement, including:
• Authority to take action against infringers
• Authority for customs officials to suspend import, export and trans-shipment of suspected IPR infringing goods
• Destruction of IPR infringing goods and seizure of equipment and materials used to make IPR infringing goods
• Ability to seize and forfeit illegal proceeds connected to IPR infringements

Other ACTA Peculiarities
o Negotiations are secret
o Other countries will be invited to join after the Agreement is finalized
o …criminalizes practices currently allowed under US, European and international law
o …takes away the rights of an alleged IPR violator to appeal against any action (violation of due process)
o …no requirement for intent (usually present in international law, and found in the TRIPS agreement)
o …transfers responsibility for detection and action of IPR enforcement from the rights holder to government authorities (in TRIPS, IPRs are classified as a ‘private right’)

The Arrest and Detention of the 2 TB Patients in Kenya

September 24, 2010

I would have been very interested in reading the full order by the magistrate.

 However, relying on the information available so far in teh health sector and media, two issues need to be clearly distinguished:

(i) the public interest need to protect the general public from the spread of TB; and

(ii) the private human rights principles that secures the freedoms and liberties  of the individuals.

Section 27 of the Public Health Act allows for the isolation of persons exposed to infection, e.g. TB, under the following circumstances:-

  1. notifiable infectious disease;
  2. not properly accommodated in such a manner to guard against the spread of the disease;
  3. through a certificate signed by medical officer for health;
  4. through an order of the magistrate and cost of local authority
  5. Place in isolation or detention until he/she is not a danger to the public or magistrate cancels order.

 

First, there exists no express condition for detention based on, “failing to adhere to treatment”.

Secondly, in this case, a certificate was not signed by the medical officer thereby contravening the law.

Thirdly, prisons do not qualify as an isolation facility under this section. Even if it does, it poses more serious public health concerns.

A look at the Prisons Act reveals that a hospital is a suitable accommodation. Under Section 39(1):-

 “In the case of the illness of a prisoner detained in a prison in which there is not suitable accommodation for such prisoner, the officer in charge, on the advice of the medical officer, may order his removal to a hospital, and in case of emergency such removal may be ordered by the officer in charge without the advice of the medical officer.”

Therefore, the 2 individuals should have been detained in hospitals because they pose serious public health risk to prisoners in the prison facility. This is because of congestion and poor hygiene conditions in the prison facilities.

The question you might want to ask yourself is, “To what extent does the law allows for limitation of human rights?”

The general position is that involuntary treatment and other compulsory measures for patients with tuberculosis (TB) can be justified as a “last resort” under international human rights law.

Our advisory must affirm Siracusa Principles, a non-binding document adopted by the UN Economic and Social Council in 1984, which among other things provide that restrictions, must, at minimum, be,

  • provided for and carried out in accordance with the law;
  • directed toward a legitimate objective of general interest;
  • strictly necessary in a democratic society to achieve the objective;
  • the least intrusive and restrictive available to reach the objective;
  • based on scientific evidence and neither arbitrary nor discriminatory in application; and
  • of limited duration, respectful of human dignity, and subject to review

This case brings into forth the need to establish enough isolation facilities for public health emergencies. Advocacy should now focus on the same! 

Paul Ogendi!

September 7, 2010.


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