Post by adongo12345 on Sept 28, 2006 23:50:34 GMT 3
INVESTIGATIONS INTO THE KENYA NATIONAL COMMISSION ON HUMAN RIGHTS BY KENYA ANTI CORRUPTION COMMISSION
PART ONE: SPECIFIC RESPONSES
Issue No. 1: ‘Irregular’ appointment of Ernst & Young as external auditors for FY 2003/4
Response
The Commission is legally competent to appoint audit firms to undertake an audit of the Commission’s funds, provided that such audits are not in lieu of the audit by the Controller and Auditor General under Section 31 (2) and (3) of the KNCHR Act of 2002 and Part III of the Public Audit Act of 2003.
For the financial year in question, the Commission submitted its accounts to the Controller and Auditor General for his audit. The Ernst & Young audit was also necessary because during the financial year, the Commission had received direct grants from various donors including CIDA, AUSAID, and Action Aid and they required the Commission to undertake an audit. Moreover, the Commission was clear that it needed to be as financially accountable as possible, by seeking both a private sector auditor for its institutional purposes, and the public auditor for statutory purposes.
The finding of the Controller and Auditor General that the appointment of the auditor was ‘irregular’ is based on a wrong interpretation of the law.
The appointment of Ernst & Young was procured in accordance with Procurement Regulations, in that:
a. Bids were invited from several firms. The following firms submitted bids: Ernst and Young, Deloite and Touché, HW Gichohi, KLSA Pannell Kerr Forster, SCI Koimburi Tucker & Co, DCDM Associates, Omwenga & Associates, and Opembe & Associates.
b. The appointment of Ernst and Young was approved by the Commission in its meeting of 16 September 2004.
Ernst & Young concluded their audit and submitted their report, which was signed by the Commission on 29 November 2004, and we are intrigued that our efforts to go the extra mile for accountability are now the subject of investigations.
Issue No. 2: ‘Irregular’ award of tender to Auto Prestige Limited for ten Honda vehicles
Response
The Controller and Auditor General inquired into the procurement of motor vehicles in the course of the audit (see his letter of 31 August 2005). The Commission satisfied his officers on their inquiries on the subject, and the matter was not raised in his final report. The ‘irregularity’ of the procurement is a creation of the Permanent Secretary in the Ministry of Justice and Constitutional Affairs, Dorothy Angote (see her letter dated 10 February 2006).
A statement should be recorded from her on the basis of her allegations of irregularity, and if no such basis exists, an investigation should be opened by KACC and the police for possible offences in providing false information to a public officer (KACC).
The procurement of the motor vehicles was not irregular, and was conducted in compliance with the Procurement Regulations (those of the Commission as well as those in the Exchequer and Audit Act), in that:
a. The tender was nationally advertised in the media.
b. Various bids were received, and opened on 3rd February 2004 in the presence of, among others, representatives of companies that put in bids (Auto Prestige, CMC Motors, and Subaru Kenya), Ministry of Finance, and the Ministry of Roads, and the prices quoted were recorded.
c. A technical evaluation of the bids was undertaken by the Ministry of Roads and Public Works, and their report submitted by letter dated 25 February 2004.
d. At the technical evaluation stage, Honda CRV, Mitsubishi Pajero, and Toyota RAV 4 had tied in points (33). In its meeting of 26 February 2004, the Tender Committee approved the Honda CRV as the best vehicle due to its extras, such as additional space and air bags. On 3 March 2004, the Commission confirmed the decision to purchase the Honda CRV vehicles.
The objective of the procurement process is to get the best product at the best price. The procuring entity is not bound to award the lowest or any bidder.
Are we being investigated for saving public resources while those who purchased high-end limousines are not questioned?
Issue No. 3: ‘Abuse of office’ by the Chairman and two Commissioners concerning relocation allowances
Response
The Controller and Auditor General inquired into the issue of relocation allowances in the course of the audit (see his letter of 31 August 2006). The Commission satisfied his officers on their inquiries on the subject, and the matter was not raised in his final report of 30 December 2005. Again, the ‘irregularity’ on relocation allowances is a creation of the Permanent Secretary in the Ministry of Justice and Constitutional Affairs, Dorothy Angote (see her letter dated 10 February 2006). A statement should be recorded from her on the basis of her allegations of irregularity, and if no such basis exists, an investigation should be opened by KACC and the police for possible offences in providing false information to a public officer.
Payments to Maina Kiai
On 9 October 2003, Maina Kiai was reimbursed Ksh. 519,873 being actual traveling and accommodation costs incurred during travel to Nairobi from New York to attend interviews for Commissioners on or about 13 June 2003 by the Parliamentary Committee on Justice and Legal Affairs and to attend elections of Commissioners on or about 08 July 2003. See the detailed breakdown on the payment voucher (00012X). This payment was not for relocation.
The payment of Ksh 519,873 was not irregular in that a) it is normal practice for an intending employer to reimburse the costs of travel and accommodation for a person invited to attend interviews particularly when he or she is traveling from overseas (otherwise some applicants would be discriminated if they cannot afford to fund the costs of their travel) and b) the rest of the payments related to a period after Mr. Kiai had been appointed a Commissioner (on 29 July 2006) and was undertaking the business of the Commission (attending elections of Chair and Vice Chair of the Commission).
The payment of Ksh 519,873 was approved by the Commission’s Finance Sub-committee during its meeting of 5 October 2003; see the minutes. The processing of the payment was approved by the Commission’s Vice Chair, Violet Mavisi. See attachment to the payment voucher. Maina Kiai did not approve the payment to himself.
This payment was examined and authorized by Ministry of Justice and
Constitutional Affairs; see the payment voucher
On 2 December 2003, Maina Kiai was reimbursed Ksh 11,200 being excess baggage costs in bringing his books and files from USA to Nairobi. These were materials for his use in the course of his work at the Commission.
On 20 January 2004, Maina Kiai was paid the sum of Ksh 277,960 vide cheque no. 000217 being one month’s basic salary as relocation allowance in accordance with the practice of the Judiciary and Government regulations.
Payments to Khelef Khalifa
On 9 October 2003, vide cheque 00030 Khelef Khalifa was paid Ksh 175,220 being reimbursement for travel and accommodation expenses while attending meetings of the Commission subsequent to his appointment as a Commissioner on 29 July 2003. At the time, Khelef Khalifa was operating from Mombasa, his previous station. This was a proper and legitimate expense.
On 16 January 2004 vide cheque no. 000204, he was paid Ksh 200,505 being one month’s basic salary as relocation allowance in accordance with the practice of the Judiciary and Government regulations.
Payment to Godana Doyo
On 5 November 2003, Godana Doyo was paid Ksh 51,000 vide cheque 000050 being reimbursement for travel and accommodation expenses while attending to meetings of the Commission subsequent to his appointment as a Commissioner on 29 July 2003. At the time, Godana Doyo was operating from Isiolo. This was a proper and legitimate expense.
[On 18 December 2003, he was paid Ksh 150,000 vide cheque no. 000160 which together with a sum of Ksh 50,0000 out of the payment of 70,000 initially paid out as imprest on 8 January 2004 vide cheque no. 000189 constituted one month’s basic salary as relocation allowance, in accordance with the practice of the Judiciary and Government regulations.]
Issue No 4: Alleged misappropriation of Ksh 264,811 and Ksh 114,253 on program activities
The audit query related to the quality of the supporting documentation. The controller and auditor general was not satisfied with the supporting documentation the Commission had used to make the payments.
Subsequent to the audit query, the Commission has obtained adequate supporting documentation on these payments; see attachments to the Commission’s letter to the Controller and Auditor General dated 15 March 2006.
PART TWO: BACKGROUND
For many months, the Kenya National Commission on Human Rights (KNCHR) has been aware of machinations by powerful State actors to weaken, control or close down the National Commission. These machinations have come about because of the work of the National Commission in carrying out its legal mandate as a “watch dog” of the government, from within government on the broad area of human rights, which these powerful actors have interpreted as lack of loyalty to the Government. Clearly, these powerful actors do not understand the international phenomenon of National Human Rights Institutions, like the KNCHR.
As noted in the editorial of the Daily Nation on July 30, 2006, the calls for reduction of the powers of watchdog institutions which subsequently obtained consensus within Government were set off by Finance Minister Amos Kimunya in July 2006 and the Government’s position would appear to be that the KNCHR and some other independent state institutions have become “too powerful” and that there is cause to cut them to size in order to “protect Kenyans” from organizations gone rogue.
1. We are aware that the investigations have been instigated by the Ministry of Justice and Constitutional Affairs based on an audit by the Controller and Auditor General. What is of concern is that two (2) of the four (4) matters under investigation-the issues of “relocation expenses” and procurement of motor vehicles-were originally raised in the management letter by the Controller and Auditor General and were explained to the satisfaction of his office and therefore removed from the final report. Why then would investigations be carried out on such issues if not for malice, bad faith, and a deliberate effort to weaken or control the KNCHR?
2. The terms of four of nine Commissioners expired on 29th July 2006. Section 14 of the KNCHR Act requires that Commissioners must hold a meeting each month with a minimum quorum of five of the nine Commissioners. But in its last session, the House Business Committee refused or neglected to bring the recommendations of the Parliamentary Committee on Administration of Justice—which is responsible for selecting Commissioners- to the House for debate and approval, before forwarding the names to the President for appointment under S.11 (6) of the Act. Now, if one (1) or more of the Commissioners still in office are charged in court under spurious corruption or economic crimes charges, and permission to prosecute is given by the Attorney General, Section 62 (1) of the Anti-Corruption & Economic Crimes Act of 2003 calls for the suspension of such public officer at half pay from the date of the charges. If that were to happen, it will mean that the KNCHR will not be able to function, and will have been effectively closed down through the back door. Is this the intention of this investigation and hence the reluctance of the House Business Committee—on which the Minister of Justice and Constitutional Affairs sits—to bring the matter of filling the vacant positions at KNCHR before Parliament? We are aware of the bizarre situation that prevailed when Mr. John Githongo resigned in February 2005 where the Government claimed that there was a Department of Governance and Ethics but no one working there.
3. At no time has the Minister of Justice and Constitutional Affairs—responsible for human rights in Cabinet—officially or otherwise attempted to discuss or enquire from the Commission on the issues being investigated, which is what would be expected in an atmosphere of good faith promotive of accountability rather than witch-hunting.
4. We are aware that many National Human Rights Institutions in transitions to democracy have faced similar efforts to weaken and/or control them especially when they take their “watch-dog” role too seriously. Indeed, in democratic theory, what is going on against the KNCHR is classic “counter-reform” where the language of reform is used to reduce democratic space; harass and witch-hunt perceived critics; and increase the power and role of the Executive. And often the targets of “counter reform” are those pushing hardest for reform.
5. For the record, the National Commission strongly believes that public institutions must be accountable and open to public scrutiny. Indeed, few public institutions have been as accountable, open and accessible to the public as KNCHR: We publish our accounts annually in the local media; we hold annual Public Accountability Forums where we open ourselves to public scrutiny by citizens; we publish an Annual Statement of achievements and challenges in the local media; we submit our annual report and a financial statement of our accounts to the President and to the National Assembly through the Minister for Justice and Constitutional Affairs; and we are responsive to the public as much as our limited resources enable us to be. In addition, we have opened ourselves fully to scrutiny by civil society organizations, which are currently completing their own review of the Commission’s work.
6. On the current investigations, we have provided documentation to KACC on all the four issues KACC is purporting to investigate, two of which, as previously noted are the creation of the Ministry of Justice & Constitutional Affairs as they were not raised by the Controller & Auditor General. These four issues are: (a) The process that led KNCHR to buy Honda vehicles (instead of the expensive Mercedes Benz limousines preferred by public officials of similar rank and which Commissioners are entitled to), a matter not raised by the Controller & Auditor General in his final report; (b) the documents relating to relocation allowances for, and expenses incurred by the Chairman, and 2 other Commissioners relocating to Nairobi from Washington DC, Mombasa and Isiolo respectively, a matter not raised by the Controller & Auditor General in his final report; (c) the process leading to the appointment of independent auditors to ensure proper financial systems and accountability and to audit monies granted to us by some external funding agencies under Section 26 (2) of the KNCHR Act; and (d) payments made to credible companies from faxed invoices for services provided to KNCHR.
7. Perhaps it is in recognition of our efforts at public accountability that the August 2006 perception poll report by the National Anti-Corruption Campaign Steering Committee on the State of Corruption in Kenya, rated KNCHR the most effective government body (and second overall to the media) in the fight against corruption with approval ratings of 79% from the Kenyan public. KACC receives no mention in its effectiveness in fighting corruption.
8. There have been suggestions that the issue here is really about accountability of all state institutions. But has anyone ever seen any accounts—audited or not--of the Ministry of Justice & Constitutional Affairs? Or audited accounts from the Ministries of Lands, Health, Transport, Water, Office of the President, State House or other public bodies? For instance, does anyone know who did legal opinions for the National Water Corporation between 2003 and 2005? And how these and other services were procured and how much the providers were paid? Why is it that it is only an institution like KNCHR--faithful to its lawful mandate and to the people of Kenya in checking Government excesses and service delivery—that is being selectively targeted?
9. We note that the current counter-reform strategy of using the KACC against independent bodies simply doing their job is the new form of harassment favored by this Government. While Kenyatta’s regime favored assassinations and detention without trial; Moi’s regime favored detention without trial at the beginning before opting for sedition charges to silence critics. The current favored tool of using vague “abuse of office” investigations by this regime comes from the same mindset and ideology of non-tolerance of honest and constructive criticism.
10. We are informed that charges against some of us here have already been drafted. For the record, no one at the National Commission has been asked to record a statement on any of the issues being investigated.
11. The fact that much of what we have learnt about these investigations has come from leaks to the media from KACC, suggests that the issue has less to do with trying to promote even selective accountability than damaging the credibility of the KNCHR-this credibility has seen KNCHR awarded in September 2006 a grant of US$ 350,000, equivalent to Kshs 25 million by the United Nations Democracy Fund towards promoting accountability- by insinuating that those who speak loudest against corruption may themselves be corrupt. We invite the KACC Director to publicly carry out investigations into the leaks—with public results—as a way to show KACC’s bona fides.
12. While all issues of corruption are important, any reasonable person with commitment to rooting out corruption will agree that it is tackling those grave and huge matters of grand corruption that leads to reducing corruption in any society, as these are mostly conducted with the blessings of powerful people who enjoy impunity. Spending time and energy on petty corruption, such as “stings” against immigration officers will not root out grand corruption and in fact sends the message that the more powerful are protected while the less powerful must be held accountable. This in turn weaves its own circle of sycophants that can then freely engage in corruption as they are protected from “higher-up.”
13. Clearly the most important corruption scandal since this regime took office is the Anglo Leasing and associated scandals. Several issues must be noted in this matter.
14. First, all the arrests and arraignment in court on Anglo Leasing matters were done before Judge Ringera and his team took office in September 2004 under the guidance of Mr. John Githongo who had a much smaller budget and salary than the leadership at KACC. Second, in his first report to the Attorney General on Anglo Leasing, Judge Ringera recommended the cessation of international investigations into the issue, despite the fact that money was wired back to the Government from international banks and common sense would dictate that one way of identifying those behind Anglo Leasing would be to work with the banks that sent back the money. Moreover, formal and official requests for assistance from foreign governments in investigations (Letters Rogatory) were done before Judge Ringera took office. Since September 2004, no formal requests for assistance have been made, making it impossible, for instance, for the U.S. Government, to assist in locating Dr. Kettering who has been implicated in the Anglo Leasing matters. Third, until the public release of the Githongo dossier in January 2006 (but sent to KACC in November 2005), no key official had been summoned to give statements or provide information on Anglo Leasing.
15. Moreover, recently KACC announced that it wanted several people to declare details of their wealth and how they acquired it. This, despite the fact that this issue is still before the court following an application by Hon. Murungaru. Obviously in terms of law, a matter such as this one can not move until the court makes a decision, and one wonders whether the announcement was meant to present an image of a working KACC.
16. Some have argued that the lack of prosecution powers cripples the effectiveness of KACC. In fact if investigations are competently handled, then pressure to prosecute will eventually be brought against the Attorney General. What is more dangerous would be a politically pliable KACC with prosecution powers, turning it into a Gestapo like institution that charges anyone not doing the bidding of powerful people.
17. In conclusion, KNCHR welcomes scrutiny from all quarters and would never try to shield itself from being accountable. What this country needs are real reforms, not counter-reforms and an end to “selective accountability.” The same measure of “accountability” that the National Commission is being subjected to should be conducted on all public institutions and Ministries starting with Ministers claiming that this is only about accountability offering accounts of their Ministries first. The KACC should start justifying its huge budget (almost 12 times that of KNCHR) and focus on what benefits the country most, such as the return of the more than US. $1 billion identified by Kroll & Associates way back in 2003 as stashed in foreign accounts and assets, rather than picking on those who have done nothing wrong but seek accountability from public officials.
18. Finally, we wish to reassure the public that we will not be deterred by these efforts at witch-hunting in order to weaken, control or close down the National Commission. We will not relent; whether we are at the National Commission or elsewhere, in our commitment to ensure that real reform and change is realized in this country so we can enjoy real democracy and development. If anything, we are strengthened by the fact that this witch-hunt shows that we are doing our job right and are having the required impact on those in power for after all, human rights is about speaking truth to power and challenging power so that it is accountable.
Maina Kiai, Chairperson …………………………………………
Mburu Gitu, Commission Secretary……………………………..
