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THE COMMISSION ON ADMINISTRATIVE JUSTICE

Office of the Ombudsman

Hata Mnyonge ana Haki

REPORT OF THE PUBLIC FORUM ON GOOD GOVERNANCE


THE HILTON HOTEL, NAIROBI
27TH MARCH 2015

TABLEOFCONTENTS

1.0 INTRODUCTION...................................................................................................................................3
2.0 BACKGROUND...................................................................................................................................3
3.0 JUSTIFICATION.....................................................................................................................................4
4.0 OBJECTIVES.........................................................................................................................................4
5.0 TARGET AUDIENCE.............................................................................Error!Bookmarknotdefined.
6.0 EXPECTED OUTCOMES......................................................................Error!Bookmarknotdefined.
7.0 SESSIONS AND THE PANELISTS..........................................................Error!Bookmarknotdefined.
8.0 EMERGING ISSUES..............................................................................................................................5
9.0 RECOMMENDATIONS.......................................................................................................................7


1.0 INTRODUCTION
On 27th March 2015, the Commission on Administrative Justice (Office of the
Ombudsman) convened a half day Public Forum on Good Governance to
discuss the nature and extent of corruption, impunity and maladministration,
and propose solutions to these problems. The Forum drew participation from key
stakeholders in the governance sector, both government and nongovernmental, and members of the public.
2.0 BACKGROUND
The adoption of the Constitution in August 2010 marked a major turning point in
the history of Kenya. The Constitution, which created the Second Republic, has
transformed the governance structure and relations in the country thereby
crystallizing good governance and constitutionalism. In addition, the
Constitution has strengthened accountability mechanisms and renewed the
policy, legal and institutional frameworks for sustainable development. A
notable development is the tacit description, indeed, prescription of the
concept of sovereignty of the people, national values and principles of
governance, leadership and integrity and creation of institutions supporting
good governance.
Notwithstanding the above prescriptions, Kenya has recently been faced with
governance challenges that have threatened its very foundation and
prompted public debate on the need for enforcement of the Constitution.
Notably, Kenya has recently had unprecedented incidences of
maladministration, corruption and impunity, which point to the possibility of poor
governance. Whereas public debate is healthy, it is worth noting that there has
been no formal and organised platform of engagement affording key
stakeholders an opportunity to engage and come up with a consolidated
approach to tackling the challenges. For this reason, efforts of stakeholders
have been lost in informal public debate.
It is on this premise, that the Commission convened the Public Forum on Good
Governance to provide the much needed space for engagement on these
governance issues and chart the way forward.

3.0 JUSTIFICATION
Governance is a key determinant for growth, development and poverty
alleviation. The question of governance, therefore, determines the ability of any
country to deliver services to its people, as well as the quality of those services. In
the context of governance, transparency and accountability are some of the
hallmarks of a functional democracy. It is in this regard that the Constitution of
Kenya has placed premium on good governance, as discernible in its
substantive and structural frameworks. For instance, the Preamble provides thus
a government based on the essential values of human rights, equality,
freedom, democracy, social justice and the rule of law. This is further supported
by the national values and principles of governance under Article 10 of which
the rule of law, participation of the people, human rights, good governance,
integrity, transparency and accountability are part. Further prescriptions of
accountability, transparency and acceptable standards of behaviour in public
sector are found under various provisions, including Chapters Four, Six and
Thirteen of the Constitution. The enforcement of these provisions has been
bestowed upon a number of institutions, notably the three arms of government
and the constitutional commissions and independent offices. In performing their
functions, these bodies are required to work closely and complement each
other. The public, too, have a role to play in ensuring good governance.
Corruption, impunity and maladministration are some of the major obstacles to
the realisation of good governance in Kenya. They undermine the ability to
deliver services and erode public trust in government and its agencies. It is,
therefore, not only important but necessary to find ways of nip them in the bud.
Charged with the responsibility of enforcing administrative justice in the public
sector by addressing maladministration, and promoting good governance and
protecting the sovereignty of the people, the Commission organised a public
forum to discuss issues ailing governance in Kenya, as an entry point in
addressing these challenges.
4.0 OBJECTIVES
The main objective of the Forum was to provide a platform for engagement with
the public and various stake-holders to examine the nature and extent of
corruption, impunity and maladministration, and chart the way forward.
Specifically, the Forum aimed at achieving the following objectives:
To provide a platform for exploring ways of addressing maladministration,
corruption and impunity in Kenya.
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To create a common understanding of the mandates of key institutions in


governance and their place in addressing bad governance.
To guide debate on maladministration, corruption and impunity for proactive
participation by the public.
To explore ways and manner of collaboration among the institutions of
governance in addressing bad governance.
5.0 THE FORUM
The Forum was designed to focus on three major issues in the context of the
theme, Good Governance. First, was the appreciation of the context through
a situation analysis. Second, was the interrogation of the institutional efficacy,
approaches and remedies, and lastly, the way forward.
The Forum underscored the fact that poor governance and lack of
accountability and transparency manifest themselves in corruption. Corruption
is a blight on development wherever it occurs, and contributes to the
perpetuation of social and economic inequities. There was also an appreciation
of the move by President Uhuru Kenyatta to begin to address corruption in
Government. The President on 26th March 2015 in his Annual State of the Nation
Address, directed that any officials adversely mentioned in a confidential Ethics
and Anti-Corruption Commission Report should step aside to pave way for
further investigations and possible prosecution.

5.1. EMERGING ISSUES


The following issues emerged from the deliberations.
1) Chapter Six of the Constitution was noted to be the least successfully
implemented. The Chapter which deals with issues of integrity and
leadership was noted to have been constantly abused by both the
leaders and the citizens.
2) Democracy is about transparency and accountability in Government.
Corruption and maladministration have been and remain to be the major
scourge preventing economic growth and stability in Kenya. They are
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barriers to national development - infrastructural growth, trade and


investment and erosion of societal moral fabric.
3) Corruption and maladministration are closely related to ethnicity, the
enemy of national unity and good governance.
4) Devolution was mainly associated with decentralisation of power and
resources to the counties. However, it was noted that although devolution
was good, it had been abused as corruption was rampant in the
devolved units.
5) A major constraint in fighting corruption was delayed action on corruption
cases and failure to prosecute those implicated in corruption thereby
perpetuating the culture of impunity.
6) The anti-corruption and anti-maladministration agencies and public
oversight authorities were undermined by inadequate political will and
limited resources. This in turn affected their performance thereby
undermining good governance.
7) The Public Audit Bill then pending before Parliament was in contravention
of Article 249(2) (b) of the Constitution. Clause 40 of the Bill prohibits the
Auditor General from making public particular information in a public
report if it would prejudice the security, defense or international relations
of the Government of the Republic of Kenya. It was noted that this would
restrict the functioning of the Auditor General and impede good
governance.
8) The problem of land grabbing of both public and private land was a
manifestation of challenges in the governance system. It was noted that
those implicated in land grabbing scandals were still holding public offices
and unpunished.
9) Lack of prosecutorial powers by the Ethics and Anti-Corruption
Commission was identified as one of the reasons for rampant corruption in
Kenya. This issue was, however, hotly contested with some members
opining that EACC does not need prosecutorial powers. A different
thinking on the matter was that civic education on issues of integrity and
governance was the solution to engender an informed public.
10)The threat by the Executive to control institutions such as the civil society
organizations and the Media was identified as a challenge to good
governance.
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11)It was noted that the protection accorded to whistleblowers was


inadequate, and had non-reporting of corruption and other malpractices.
12)Access to information on certain public institutions was a big challenge as
some were closed and others had outdated information, which
undermined public participation on issues that affected them.
13)Those implicated in corruption scandals should not only step aside
pending investigations, but also resign or be removed from office.
14)It was noted that a number of public officers implicated in corruption
usually rushed to court to stop lawful action against them. Worse still, such
cases took long to be concluded. This undermined the principle of
separation of powers where such action was vested in a particular State
Organ, and the efforts towards good governance.
6.0 RECOMMENDATIONS
Maladministration, Corruption and Impunity continue to thrive despite various
measures put in place to curb the vices. In order to deal with these unsavory
and unethical practices, the following recommendations were made:
1) There is need to re -examine the entire legislative framework and identify
the gaps in the laws that establish oversight agencies in order to seal the
loopholes to make the agencies be effective.
2) There is need for a national campaign and civic education to educate
the public on corruption and maladministration.
3) Institutions mandated to oversee the implementation of Chapter Six of
the Constitution need to hold each other to account with regard to
aspects within their respective mandates.
4) There is need to have a single government integrity coordinating agency
to co-ordinate integrity matters. In addition, the oversight institutions
should build an inter-agency co-operation and collaboration.
5) The Judiciary should be bold and clear in determining integrity matters
and it should define the bare minimum standards. Further judicial
officers who preside over corruption matters should be taken through
specialised training on corruption.
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6) The IEBC must enforce its powers under Article 88 to vet those interested
in elective posts.
7) Conduct of lifestyle audits for State and Public Officers need to be done
and enforced through legislation. Illegally acquired wealth should be
confisticated.
8) In light of the scourge of corruption and maladministration the relevant
legislation needs to be amended to negate the presumption of
innocence in such matters.
9) There should be timelines for action on reports and recommendations by
oversight institutions.
10) Stiff penalties and sanctions should be meted out to public officers who
have been charged with corruption and maladministration.
11) There is need to overhaul the Companies Act as the loopholes therein
create an enabling environment for corruption.
12) Harness technology to ensure corruption is reported and promptly acted
upon.
13) There is need to review the law on the protection of whistleblowers.
14) Laws on election financing should be reviewed. Every political leader
should be required to file a budget on all electoral heads and account
for the money spent.
15) The National Anti-Corruption Policy should be developed to guide the
anti-corruption activities in the country.
16) Investigators in corruption related cases should conduct thorough,
investigations for effective prosecution and adjudication.
17) National Integrity Systems should be formed and values inculcated from
an early educational level.
18) Efforts should be made towards ensuring that Chapter Six of the
Constitution is self enforcing.
19) Parliament should enact a Politicians Code of Conduct and institute
processes to have undisciplined politicians dealt with.
20) The Judiciary should be held to account in as far as upholding the
Constitution is concerned. The prohibitive rule requiring one to deposit a
sum of Ksh. 1,000,000 before approaching the Supreme Court in relation
to Presidential elections should be repealed since it undermined good
governance.
21) A list of shame bearing the names of those people accused of integrity
violations should be published regularly.
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Hata Mnyonge Ana Haki


PUBLIC FORUM ON GOOD GOVERNANCE
27TH MARCH 2015
VENUE: HILTON HOTEL, NAIROBI
TIME: 8.00AM 1.00PM
MODERATOR: DR. OTIENDE AMOLLO, EBS
CHAIRPERSON, COMMISSION ON ADMINISTRATIVE JUSTICE
TIME

SESSION

8.00- 9.00a.m

Arrival and Registration


Situation Analysis

9.00 10.00a.m

Hon. Abdikadir Mohamed, Senior Constitutional & Legislative Advisor to the


President
Mr. M. A. Ogolla - Office of the Controller of Budget
Mr Humphrey Wanyama, Deputy Auditor General
Mr Samuel Kimeu, Director, Transparency International (Kenya)
Mr George Kegoro, Executive Director, International Commission of Jurists
(Kenya)
Institutional Efficacy, Approaches and Remedies

10.00 11.00a.m.

Hon. Sen. Amos Wako, Chairman, Senate Committee on Legal Affairs and
Human Rights
Cmmr. Mumo Matemu, Chairperson, Ethics and Anti-Corruption
Commission
Mr Jacob Ondari, Deputy Director, Public Prosecutions and Head of
County Affairs & Regulatory Prosecutions
Mr Ndungu Wainaina, Executive Director, International Centre for Policy
and Conflict
Way Forward

11.00a.m. 1.00p.m

Prof. PLO Lumumba, Director, Kenya School of Law

Ms Lilian Omondi, Vice Chairperson, Law Society of Kenya


Ms Atsango Chesoni, Executive Director, Kenya Human Rights Commission

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