Gladwell Otieno's blog

Ringera’s reappointment a naked display of impunity

Gladwell Otieno — Thu, 03 Sep 2009 09:02:06 +0000

President Kibaki's reappointment of Mr Justice Aaron Ringera and his two deputies has triggered the latest in a long series of political controversies.

Perhaps deliberately, these crises serve to distract Kenyans from the urgent work of rebuilding a country that is threatened with collapse.

The decision has, inevitably, caused great public outrage. Outrage because it rewards what is, at best, ineptitude, and, at worst, complicity with corruption, and threatens to destroy the last shreds of any remaining independence and credibility of the under-performing Kenya Anti-Corruption Commission and its Advisory Board.

Any attempt to defend the KACC requires suspension of disbelief since there are few more discredited public bodies. It is difficult to work up enthusiasm for the continued existence of an institution which has served more as a fig-leaf for grand corruption than as a deterrent against it. Nevertheless, important principles are at stake, which need defence.

First, the president has acted against the law: The Anti-Corruption and Economic Crimes Act, 2003, clearly stipulates a chain of events leading to the appointment of a director and assistant directors. This gives to the Advisory Board and not the President, the power to recommend these officials.

Thereafter, the nominees must be approved by Parliament. Only then should the President make the appointments.

Independence is an essential attribute of any anti-corruption commission if it is to have any hope of being effective. By unilaterally purporting to reappoint Ringera, the President has attempted to deal the independence of the Commission and its Board a death-blow.

Mr Ringera, who has, in any case, never attempted to demonstrate any independence from the Executive, will now be even more clearly beholden to the President who has reappointed him to his slightly less lucrative, but nonetheless, still desirable, post.

Clearly, the President has absolutely no interest in an independent and effective anti-corruption commission, and questions as to why this is so are justified.

The Board can only begin the long struggle to redeem its credibility and independence by rejecting the President’s move, as it has now done and begin the difficult work of restoring the independence and effectiveness of the Commission.

However, regaining public confidence will be an uphill struggle since the performance of the Commission has been under par. The Board owes Kenyans an explanation on why it has not yet begun nominating new directors, thus opening the door to executive mischief.

The tenure of the present directorate lasted until September 8 (they were appointed on September 9, 2004). Against this background, the Board’s protests sound hollow. Furthermore, this latest action by the President is an affront to the rule of law. Why should anyone respect the law if the President himself does not?

The frequency with which he has been disregarding the rule of law, even before his controversial appointment last January, is deeply disturbing.

Parliament is right to respond strongly to this latest attack on its independence and oversight powers, and it should continue to do so in a principled manner. The President cannot unilaterally make law and he cannot unilaterally usurp the powers of the Advisory Board.

If there are gaps in the legislation, it is not the work of the President to fill them in as he sees fit. It is the work of the Legislature. Parliament should move to strengthen the law to clarify the processes of appointment and reappointment, as is the case with other laws such as the Kenya National Commission on Human Rights (KNCHR) Act.

In the case of the KNCHR, the current commissioners, on the expiry of their term, were required to reapply for the positions and went again through the Parliamentary Legal Affairs Committee.

Parliament and the Advisory Board must reject the President’s purported reappointment of the KACC director and assistant directors. They must not consider those three for reappointment since they have done nothing to deserve it.

Without a radical improvement in the government’s anti-corruption performance, no one would really notice KACC’s absence, except the officials who are pocketing unjustified sums under the pretext of fighting corruption.

Ms Otieno is the executive director, Africa Centre for Open Governance.

Link to story in the Daily Nation Website

Such generosity to ECK officials was in bad taste

Gladwell Otieno — Tue, 21 Apr 2009 09:02:06 +0000

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Reports of a generous send-off package for the former commissioners of the defunct Electoral Commission of Kenya are the latest example of a lack of real recognition by government of the precarious situation in which Kenya finds itself.

As holders of high constitutional office, the remuneration of the commissioners cannot be varied to the disadvantage of the holder of the office.

However, it is unlikely that their original terms of service would have contemplated the unprecedented basis on which these payments are being negotiated, and at a time when they are no longer in office.

It is regrettable that investigating and establishing the culpability, or lack of it, of the commissioners in relation to alleged electoral fraud, is not being prioritised in the same way as the payments.

This is despite the Attorney-General’s directive to the Commissioner of Police last November to “carry out comprehensively and expeditiously criminal investigations into suspected offences alleged to have been committed by the chairman, the vice-chairman, commissioners and specified staff of the Electoral Commission of Kenya (…)” in response to a complaint by Kenyans for Peace with Truth and Justice (KPTJ).

THE CONCLUSION BY THE KRIEGLER Commission (IREC) last September can safely be qualified as cursory. However, IREC also made valuable recommendations on radical reforms and the creation of a new electoral management body “with a new name, image and ethos committed to administrative excellence in the service of electoral integrity…”.

But instead of a fresh start capable of renewing Kenyans’ deeply damaged confidence in elections as a cornerstone of democracy, what we have seen is the unrepentant arrogance of former commissioners and the shambolic process of establishing an Interim Independent Electoral Commission.

It is difficult to see how the granting of generous financial rewards to commissioners can contribute to fostering a culture of excellence and accountability in a future electoral management body.

On the contrary, the message going out is that no matter how dismal, negligent or even criminal your performance may be, you will not only never be held to account for it, you will be amply rewarded.

As reported in the Africa Centre for Open Governance’s new publication, Free for All? the reports of the Controller and Auditor-General show the numerous economic and political governance challenges that plagued the ECK.

Chief among these is the political patronage that led to a pervasive culture of impunity in spending both at the Nairobi headquarters and at district offices.

Between 1991/92 and 2006/07, the ECK was entrusted with Sh15.8 billion with which to undertake various electoral activities. During that period, Kenya held three general elections at regular five-year intervals, the 2005 referendum, and a number of by-elections.

In various reports, the auditor took issue with how the ECK spent more than Sh1.93 billion – roughly 12 per cent of its disbursement for the period.

The most blatant improprieties at the ECK during this period were perpetrated by the commissioners themselves. Over a span of seven years from 1991, commissioners were direct beneficiaries of questionable expenditure amounting to over Sh148 million through irregularly-paid sitting and subsistence allowances, and wasteful hire of cars.

So frivolous was the management of funds that it was common practice for ECK commissioners to pay themselves sitting allowances while also receiving subsistence allowances for every day of the year including Saturdays, Sundays and public holidays, and in some instances, when they were out of the country.

A commissioner who received an unauthorised Sh926,600 ex-gratia refund of medical and travel expenses for treatment at a Nairobi hospital and abroad, also received full sitting and subsistence allowances while incapacitated.

The ECK provided no explanation as to why subsistence allowances – paid to enable an officer to “subsist” away from his or her duty station – were paid together with sitting allowances.

WHEN PUT TO TASK BY THE PARLIA-mentary Accounts Committee regarding these irregularities, the accounting officer’s explanation was that it is the ECK’s prerogative to decide whether or not to maintain records of its meetings.

The officer explained that since ECK meetings had no quorum, a sitting can be by one or two members, or the whole commission; which justifies payment of sitting allowances for 365 days. Between 1997 and 2003, the auditor estimated that Sh29.4 million was probably lost.

The radical reforms recommended in the Kriegler Report highlight the need for overall administrative reforms. For a new electoral body to effectively execute its mandate, the requisite administrative and governance structures must be in place to minimise opportunities for corruption and abuse of power.

By GLADWELL OTIENO

Ms Otieno is the executive director, Africa Centre for Open Governance (AfriCOG).

The guilty must not be allowed to throw out Waki report

Gladwell Otieno — Sun, 09 Nov 2008 09:02:06 +0000

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THE RECENT PUBLIC DEBATE on the report of the Commission of Inquiry into the Post-Election Violence has tended to narrow the focus to the secret list of names recommended for further investigation and possible prosecution.

Whatever the merits or demerits of the secret list and the accompanying evidence whose contents is known only to Justice Philip Waki and fellow commissioners, the anxiety it has occasioned among political leaders has become a powerful emotion for rallying all the suspects to demand that Kenya throws out this baby with the bathwater.

Just what does the Waki report say?

First, it sought the truth about the violence that gripped Kenya at the start of the year. After taking evidence from 156 witnesses and depositions from another 144, it established that 1,133 people were killed, that rape and sexual violence were rampant, that property of unknown value on over 117,000 sites was destroyed, and that over 300,000 people were displaced.

THESE ARE THE FACTS, AND THEY are undisputed.

Secondly, the report examined the nature and types of violence, which it then classified into three: spontaneous expressions of anger; planned and organised attacks and retaliations, and the failure of the security forces to act on intelligence, act impartially or professionally, and its excessive use of force.

The commission did not dream up these facts — they emerged from evidence collected from a variety of sources, including the police and other Government officials.

Thirdly, the commission found that the police were criminally involved in the violence in acts ranging from “murder, gang rape to looting”.

Fourthly, it was clear to the commission that the security forces did not act independently. Before the elections, the police were sent on clearly partisan missions — the National Security Intelligence Service got up to lots of mischief and the Provincial Administration was at the beck and call of political interests.

Although the Attorney-General told the commission that he was waiting for evidence to prosecute perpetrators of the violence, the commissioners found him too closely linked to the culture of impunity in Kenya to take any action.

The parliamentary committee on ethnic clashes chaired by then Changamwe MP Kennedy Kiliku, and the Judicial Commission of Inquiry chaired by Justice Akiwumi heard evidence and recommended prosecutions. The Attorney-General did not act on either report.

The radical recommendations by the Waki Commission are a product of our times and circumstances. They are an attempt to break the cycle of violence that has turned Kenya into an unstable country.

A special tribunal to investigate and prosecute suspects leaves the Attorney-General, and the political interests he has protected over his 17-year tenure, out of the loop. This has gravely offended the political criminals who have made a career out of going unpunished.

Secondly, the commission recommends that heads must roll in the Police Force and in the Provincial Administration. Additionally, it strongly suggests revision of the laws governing the police to make the service less prone to abuse and more responsive to the public.

The commission recommends the passage of the International Crimes Bill and the Freedom of Information Bill, which are just about to be introduced in Parliament, as well as bringing into effect the Witness Protection Act.

Thirdly, it recommends the appointment of a Rapporteur on Sexual Violence to monitor the work of the Gender Commission and gender units in various ministries, and to provide an annual report on sexual violence to Parliament.

IT IS HARDLY SURPRISING THAT those who have been loudest in condemning the report’s thoroughness, legality and implementability are the ones named by Justice Waki as bearing the greatest responsibility for the violence.

A wholesale rejection of the report is a blatant attempt to exclude the more damning evidence that is not yet in the public domain. It is also tantamount to denying the tragic events.

Such a course of action benefits a few people — the 10 powerful suspects lined up for further investigations; the Attorney-General who has encouraged a culture of impunity; the Police Commissioner and his discredited force; and the Provincial Administration.

Mercifully, the fate of the Waki report is not in the hands of the usual suspects. It is in the hands of the ordinary Kenyan. With the help of the international community, Kenyans can end the culture of impunity — for good.

Ms Gladwell Otieno and Ms Muthoni Wanyeki are the executive directors of the Africa Centre for Open Governance and the Kenya Human Rights Commission, respectively.