Category Archives: Kenya judiciary

Kenya’s Money in the Past: TJRC

From reading the introduction to a new book (available on Amazon) by Ronald C. Slye,  a Commissioner with the defunct Kenya Truth, Justice, and Reconciliation Commission, he narrates how the Commission evolved and troubles it encountered as it sought to carry out  investigations, through to completing its report and handing it over to Kenya’s President. These included accusations again their Commission Chairman and delays to the release of their report so it did not clash with the 2012-13 Kenya electioneering period as well as demands that some clauses be deleted from the final report.

The foreword of the book written by Reverend Desmond Tutu is also available and he gives some more background to the Commission and Slye’s writing. Tutu writes that the Kenya Government did not support the report, and printed as few of them as possible and Parliament has not debated the TJRC report.

In a chapter, available online, Slye explains how he came to join the Commission and some to the things he went through. He thanks his university, the Seattle University School of Law,  for making the complete TJRC report, in sectors and versions, available online on its website as well as also hosting supporting documents that he researched as the basis for his book.

In terms of finance and budgets, there were allegations against that the commission was a waster of public funds and Slye has dedicated a separate page called “Financial Scandals” that contains documents and correspondence on the financial affairs of the Commission. .. includes the letters written by the Commission to the relevant Parliamentary Committee’s requesting an investigation into the handling of the Commission’s finances by the Ministry of Justice. It also includes the only document the Commission received from the Ministry of Justice in response to our inquiry concerning how our monies were being spent.

Excerpts from the documents;

  • The Commission, while independent, never really had control of its monies which was stipulated in the TJRC act; that was done by the (Justice) Ministry. The Ministry also communicated that the Commission would have no control of funds until much later.
  • Some trips Commissioners made e.g to hear facts at the Kenya Coast were paid for out of their pockets but were never reimbursed. Nor did they get reimbursed for some medical expenses, some local travel which were done out-of-pocket, as well as for moving expenses of foreign Commissioners.
  • Money was spent on their behalf for activities which the Commissioners were not aware of e.g. Kshs 16 million to host a “council of elders.”

TJRC financial report from the Justice Ministry

  • In October 2009,  the Ministry sent three different sets of papers to JTRC purporting to give a breakdown of usage of their funds and Slye writes that it included bulk payment for Ministry of Justice retreats and bulk payments for unidentified casual workers when the Commission had just a CEO and two consultants
  • In December 2009, the TJRC submitted a two-year budget request for Kshs 2.06 billion. It also submitted a supplementary request for Kshs 631 million. When no answer was received, it wrote, in January 2010, requesting for a lower amount Kshs 480 million. In March 2010, the Ministry wrote that, of this request, they had been allocated Kshs 30 million in the budget for the rest of the fiscal year. The Commissioners soldiered on and decided to pursue alternative means of funding.
  • The page also contains a press release the Commissioner put out that stated:  “The TJRC would like to emphasise the need for financial independence and to restate that at no time has the TJRC had control over any finances. The Ministry, which has seconded one of its finance officers to the Commission, controls all and every aspect of our budget.”

In July 2011 the Commission was accused of corruption through media reports. Slye writes that internal investigations concluded there was no foundation. In their first year (2009-10), their budget was controlled by the Ministry and they had no control of finances till their second financial year. They lacked financial independence, they had to seek Ministry approval of all activities (delayed processes), and had no authority to approve /disapprove expenditure incurred by the Ministry on behalf of TJRC with no knowledge the ministry expenditure beforehand and they were not given a true account of expenditure in the first year. 

During their second year (2010-11), they ran low on funds and had to seek advances from the Treasury for 44 million and 80 million from the Ministry of Justice. They requested supplementary funding which never came which allowed hearing in Mount Elgon, Upper Eastern and North Eastern. Eventually, 650 million of the 1.2 billion was released. There were recurrent delays, payments came in tranches, they had to seek loans, and were only able to visit two provinces and hold public hearings.

Office of the Auditor General (OAG): 

Meanwhile, the Office of the Auditor General of Kenya mentions the TJRC in some reports:

  • In the report for 2010/2011, reference was made to the Commission’s failure to deduct Pay As You Earn (PAYE) from the salaries of 304 statement takers totalling Kshs.13,077,033. A review of the position during the year under review revealed that no attempt was made to recover the amount.
  • The statement of financial position of the Truth, Justice and Reconciliation Commission (TJRC) lacked opening balances. Further, the statement of management responsibilities was not signed by the officials as required. The whole financial statements were not dated and the necessary supporting documents and schedules including cash books and government ledgers, were not provided for audit review.
  • Although notes to the financial statements were provided, they were poorly numbered and arranged such that it was not easy to follow the financial statements. The financial statements also lacked numbered pages and headings.
  • In the circumstance, the accuracy and completeness of the financial statements could not be ascertained.
  • With regard to truth, justice and reconciliation activities, the Ministry reported to the OAG that it had facilitated the enactment of the Truth, Justice and Reconciliation Act, 2008 and the appointment of the TJRC Commissioners. 

Kenya’s Judiciary: Presidential petitions are decided quickly but other cases drag on

  • The Supreme Court rules for presidential petitions were tried and tested in 2013.
  • Virtually every Kenyan is affected by some unresolved judiciary court case, whether it’s a commercial dispute, employment, land, traffic, inheritance, bank loans and so on.
  • Disputes between borrowers and banks should not drag on for so many years that they incur legal, penalty and interest charges that eventually exceed many times the initial loan amount. From my notes while reading Charles Hornsby’s Kenya: A History since Independence, “15 petitions followed the 1969 elections and they were heard by Euro and Asian judges (Njonjo’s decision) – 3 were successful.” … “39 petitions followed the 1974 elections, and 9 MPs lost their seats, with 4 barred from contesting for 5 years.”… “The 1979 elections had no observers…31 petitions were heard by non-African judges and 9 MP’s (including 3 ministers) lost their seats”
  • This year is expected to be no different and the Deputy Chief Justice was quoted as saying the courts were expecting as many as 300 petitions following the August 8 election.

Read more

Kenya Elections 2017 Wrap – Electionske2017

Yesterday, the final results of the August 8, 2017, Kenya elections (electionske2017) were announced by the Independent Electoral and Boundaries Commission (IEBC).

This came with the announcement of the presidential results that were delayed by challenges and agreement on the tallying and transmission of the results that were a spillover of lengthy discussions and court cases (the IEBC chairman said they had 200 court cases) on independent candidates, political party petitions, procurement, electronic gadgets, ballot papers, as well as the brutal murder of the IEBC technology manager just a week before the election.

 

These were the fourth national elections in ten years (2007,2013, 2017 and a constitutional referendum in 2010) and they were closely contested in many places. Besides choosing a new president, 15 million Kenyans also voted on their choice for governor, senator, councilor (MCA), member of parliament (MP), and a county women’s representative from among 14,500 candidates.

But even after the results, there are expectations that dozens of petitions will be filed at the courts on Monday for determination.

 

Electionske2017 Predictions: 

  • Opinion polls were reported in Kenya. They have been widely derided for not accurately predicting the outcome of races and for contradicting each other. This could be due to misunderstandings by Kenyans about what polls mean, and sampling methods used, especially in rural Kenya.
  • Elsewhere, Charles Hornsby,  author of the classic must-read Kenya: A History Since Independence -did a series of election prediction posts in June and early in August that were based on his September 2016 prediction of a 55-45 victory for Kenyatta over the (yet to be chosen at that time) opposition candidate remains plausible. He later revised this; I still predict a Jubilee victory by 52% for Kenyatta and Ruto to 48% for Odinga and Musyoka, with all others less than 1% combined.
  • Another was a research report by Citibank (Citi) published in early August:  On Thursday we hosted a call with Richard Kiplagat, COO of AfricaPractice, to talk through political scenarios. Mr. Kiplagat takes the view that 1) the polls are very close but give a slight edge to the President; 2) the victor is likely to win outright in the first round, given limited support for third party candidates; 3) while the outcome may be disputed initially, the Supreme Court is likely to certify the outcome by September 10th, a judgment that could well be accepted by the loser; 4) widespread or prolonged violence is unlikely this time around, due in part to devolution of the 2010 constitution and in part to the ethnic balance of the incumbent presidential/vice presidential ticket.

What happens next?

For President: The date of the swearing-in of the president constitutionally depends on if there are any petitions

  • Petitions are filed with 7 days after declaration of results
  • If a petition is filed, the Supreme Court hears and gives a determination within 14 days
  • The President-elect is sworn in the first Tuesday following the 14th day if no petition has been filed or the 7th day following the date which the court renders a decision

For Governors transition rules

For Members of Parliament: The 12th parliament i.e the national assembly and the senate are to have their first sitting, not more than thirty days after the elections (tentatively not later than September 8, 2017).

Also, see other electionske2017 posts about:

Governor and County Transition 2017

In July the Cabinet Secretary for Devolution and Planning gazetted rules for governor transition. Governors came into office in 2013, and this month, most of them stood for re-election as incumbents, for a second (and final) year term

Sonko in transition from Nairobi Senator to Governor.

About half of the 47 county governors in Kenya will be going home after losing in the August 8 elections and will be handing over power to new county governors.

The rules called for:

  • All the counties (were to) form Assumption of Office of the Governor Committee(s) – these were largely made up of central government and county officials as well as with nominees from the incoming governor, once they have been declared the winners
  • The committees are to facilitate handing over ceremonies, security of new governor, and communication and facilitation of a smooth transition. 
  • New governors are to be sworn in by a High Court Judge ten days after the declaration of results. The outgoing governor should be present to hand over symbols of power (but their absence shall not hinder the process).
  • EDIT Where the outgoing governor is re-elected for a second term and upon signing the certificate of inauguration, the presiding Judge or the Deputy Registrar as the case may be shall hand over to the Governor any of the county symbols.
  • The County Commissioner shall ensure the provision of adequate security during the conduct of the swearing-in ceremony.
  • The committee shall within 30 days of swearing in provide a report on the:
    • County Assets (offices, houses, schools, cars, computers, software investment, debtors etc. – their status and ownership documents)
    • County liabilities (amounts & status of loans, legal liabilities)
    • County bank accounts (reconciled balances)
    • County Staff and county agencies
    • Ongoing/multi-year projects and donor funded projects
    • Pending litigation – by the county/against the county, and issues with other government agencies.
    • Sources of county government funding for the last 4 years and projections for 2017/18.

Why Imperial Bank May Not Reopen Part III

There are two or more sides to every story, and there are several at Imperial Bank. This is just one. The Central Bank (CBK) and the Kenya Deposit Insurance Corporation  (KDIC) have accused the shareholders/non-executive directors of the bank of being negligent in allowing the fraud at the bank estimated at Kshs 34 billion (~$34 million), and collecting dividends from what was a shell institution. The shareholders have fired back in replying affidavits saying they were not party to the fraud and that, among other things:

  • Documents they saw as directors (at board meetings). had been doctored by management of the bank (led by the late group managing director).
  • CBK officials helped doctor the records for many years during their inspection audits.
  • CBK officials received personal favours from Imperial Bank managers.
  • CBK staff and Imperial managers conspired to prevent one shareholder from becoming an executive director of the bank, which would have created a second centre of power (other than the GMD) and which might have uncovered the fraud.
  • The current CBK governor has made unreasonable demands on shareholders and failed to discipline his officers involved with Imperial – even appointing one of them as a receiver manager after Imperial closed.

Meanwhile, a judge issued a ruling that was interpreted differently and a group of depositors went back to court seeking a clarification of what the judge meant. It has been interpreted to mean:

  • Shareholders: The receiver managers (CBK/KDIC) must share information with, and consult, them on decisions affecting the bank.
  • Receiver Manager: Liquidation of the Bank can proceed liquidated.
  • Depositors: Judge said to pay us 40% of our deposits immediately.

Hearings continue next week.