THE RED CARD CAMPAIGN 

 NOMINATION BY PRESIDENT WILLIAM RUTO OF MR NOORDIN HAJI FOR APPOINTMENT AS SPY CHIEF IS AN AFFRONT TO THE CONSTITUTION OF KENYA 2010

FOR IMMEDIATE PRESS RELEASE

Sunday, 21st May 2023, Nairobi - Kenya

We, Civil Society Organisations, under the banner of the National Integrity Alliance (NIA), express our strong objection to the recent nomination by President William Ruto, of Mr Noordin Haji, the Director of Public Prosecutions (DPP) to head the National Intelligence Service (NIS) because of Mr Haji’s compromised track record and failure to fulfil his constitutional obligations while serving as the DPP.

Mr Haji has in the past demonstrated gross misconduct, incompetence and non-compliance with the Constitution of Kenya 2010, specifically Chapter 6 on Leadership and Integrity, the Public Officer Ethics Act 2003, the Leadership and Integrity Act 2012, the Office of the Director of Public Prosecutions Act 2013, and the Decision to Charge Guidelines 2019.

Chapter 6 of the Constitution of Kenya establishes a high standard for public officers, including those in positions of leadership and authority. It emphasizes the values of integrity, accountability, and ethical conduct, which are essential for upholding the rule of law and ensuring the effective functioning of our democratic institutions. Regrettably, Mr Haji’s past actions while serving as the DPP have demonstrated a clear disregard for these fundamental principles.

In the past eight months, Kenyans have been astonished by a pattern of the withdrawal of corruption cases involving certain politically connected individuals, a number of whom have been appointed to executive positions, which raises doubts about the DPP's impartiality and his commitment to fighting corruption — a pervasive problem that continues to hinder Kenya's progress. About 8 graft-related cases including (Geoffrey Mwangi former CEO, NHIF and 17 others – Ksh 1.1 billion; Rigathi Gachagua - Deputy President & 9 others –Ksh 7.3 billion;  Wambui Mary - Communications Authority of Kenya chairperson – Tax evasion case - Ksh 2.2 billion;  Aisha Jumwa - CS Ministry of Public Service, Gender and Affirmative Action – graft case - Ksh 19 million;  R. V Ben Chumo & others –Ksh 400 million; R v Dr Ken Tarus & 8 others - Ksh 159 million) have so far been withdrawn by the ODPP under Mr Haji’s watch, a clear indication that he failed to exercise authority in a manner that promotes public confidence in the integrity of his office contrary to Article 73 of the Constitution of Kenya. If the 8 cases listed above had been adjudicated to a conclusion, and successfully, Kenyans would have recovered about Ksh 11.3 billion, let alone the time and resources spent in the adjudication process which could have aided in dispensing other cases at the judiciary. That is the cost that Kenyans have to bear in a period of extreme financial difficulties, due to Mr Haji’s actions in leading the botched prosecution of these cases.

Further, Mr Haji has by his own admission indicated that he was politically influenced and demonstrated a lack of objectivity in decision-making. He failed to ensure that decisions are not not influenced by favouritism, other improper motives, or corrupt practices because withdrawal of charges against specific individuals who have clear political connections without withdrawals against their co-accused as evidenced in several instances. This goes against the principles of the ODPP act in section 4  and in particular rules of natural justice, promotion  of confidence in the integrity of the office and the need to serve the cause of justice and prevent abuse of the legal process and public interest.

The National Integrity Alliance has repeatedly called out ODPP for flawed prosecution of corruption cases, hoping that the institution will be accountable to Kenyans, but to no avail. Article 158 sets out that the Director of Public Prosecutions may be removed from office on the grounds of — non-compliance with Chapter Six, incompetence, gross misconduct or misbehaviour. Mr Haji is still the DPP and he is subject to the provision of Article 158 of the Constitution. As such, on Monday, 22nd May 2023, we will be filing a petition to the Public Service Commission for the removal of Mr Noordin Haji as the Director of Public Prosecutions on the grounds of gross misconduct, incompetence and non-compliance with Chapter Six of the Constitution of Kenya 2010.

We will submit a memorandum to the vetting committee at the National Assembly expressing the aforementioned concerns. In case Mr Haji sails through the sieving process in parliament, we are prepared to challenge his appointment in the courts of law.

On nominating for appointment an individual to head Kenya’s intelligence unit, we remind the President that Section 8 of the National Intelligence Service  Act 2012  provides that the candidate for the Director-General should meet the requirements of Chapter 6 of the Constitution of Kenya 2010, which as explained above Mr Hajj outrightly fall short of. We implore the President to reconsider alternative candidates who have demonstrated a commitment to upholding the highest standards of leadership and integrity because Kenya deserves a spy chief who can inspire trust and effectively address the significant security challenges facing our nation.

The National Integrity Alliance will continue to advance the Red Card initiative to bar individuals that fall short of our constitutional ethical and moral requirements from ascending to public office. We call upon Kenyans who share our concerns about the nomination of the DPP to voice their opinions and join us in demanding accountability and the appointment of a suitable candidate for the critical position of the Director-General of the National Intelligence Services (NIS) and other public offices.

Link to petition: Petition to PSC to seek removal of DPP from Office

END

REDCARD CAMPAIGN

The #RedCard Campaign seeks to bar aspirants that fall short of the ethical standards of integrity from assuming elective or appointive office. The new spirit of active citizenship across all levels of society and government must be catalysed to enforce existing robust laws and institutions and roll back the future abuse of public office and theft of public resources. The Red Card Campaign has three objectives. They are 1.) Public education against corruption and abuse of office 2.) De-campaign aspirants who fall short of the ethical threshold of Chapter 6, and 3.) Institute legal proceedings for the removal of those who win the elections despite their demonstrated unethical behaviour.

THE NATIONAL INTEGRITY ALLIANCE (NIA) 

The National Integrity Alliance (NIA) is a citizen-centred integrity and anti-corruption coalition comprising Transparency International Kenya (TI-Kenya), Inuka Kenya Ni Sisi! The Institute for Social Accountability (TISA), and The Kenya Human Rights Commission (KHRC). NIA seeks to breathe life into the constitutional promise on Integrity by catalysing frontline ethics and anti-corruption institutions, and active citizens to Detect, Deter, Disrupt and Defeat corruption at all levels of society.

Chapter 6 is an Ethical Standard for all Aspirants to serve Public Office

  www.nia-ke.org | Twitter: @RedCardKE | #RadaNiIntegrity |

CIVIL SOCIETY ORGANIZATIONS (CSOs) MEDIA STATEMENT ON THE FINANCE BILL, 2023

Pockets are empty: shield Mwananchi from the high cost of living, protect local businesses.

FOR IMMEDIATE RELEASE

Monday, 22nd May 2023 - Nairobi,Kenya

INTRODUCTION:

The country is in an economic crisis; this year, for every 100 shillings the government collects as revenue, more than 65 shillings goes to service the national debt. More devastating, the first three quarters the Kenya Revenue Authority (KRA) in the revenue collection for the 2022/2023 Financial Year have been below target. Out of the targeted Ksh 2.07 trillion for the current fiscal year, Ksh 1.57 trillion has been collected. Almost 25% below the target amount. The above financial predicament notwithstanding, the government, through the National Treasury, has put together an expansionary national budget for the 2023/2024 financial year totalling Ksh 3.6 trillion with a projected deficit of Ksh 768 billion in the 2023/2024 financial year.

The high debt burden, the unmet revenue collection and a large budget deficit require fiscal consolidation and revenue mobilization. The government, as required in every financial year, tabled the Finance Bill 2023/2024 before the National Assembly on 4th May 2023 for the first reading.1 The Departmental Committee on Finance and National Planning published the notice for public participation and submission of memoranda on 7th May 20232 . The public participation window closed on 20th May 2023.

To respond to the call for public participation and submission of memoranda, the Okoa Uchumi members held a two-day workshop to review the proposed tax amendments. Members take note of the amendments proposed in the Finance Bill, 2023, under each category of tax follows:

1. Value Added Tax Proposed (VAT): A total of eleven (11) amendments have been proposed. Out of these, the Coalition endorses three (3) – please see the policy brief shared with you for details. The coalition members, however, oppose a number of the proposals that are problematic and inconsiderate of the current economic situation as follows:

•  An increase of VAT rate on petroleum products from the current 8% to the proposed standard rate of 16% is opposed. We note that an increased rate of VAT on petroleum products would increase the cost of production and worsen the current state of the high cost of living.
• Amendment of section 33 (iii), First Schedule [1] – We oppose this and ask the parliament to reject this proposal with the justification that these industries employ young people and women. Lifting of VAT exemptions could increase the cost of business, which could cause layoffs.
• The Amendment of section 33 (xvii), Section 66 on the Removal of VAT exemption on inputs or raw materials locally purchased or imported by manufacturers of clean cookstoves – Members oppose this because removing the VAT exemption on inputs or raw materials locally purchased or imported by manufacturers of clean cookstoves would increase the cost of producing climate-friendly stoves. In the context of the devastating effects of climate change, this proposal is unconscionable.
• The proposal to remove the VAT exemption on the supply of maize (corn) flour, cassava flour, wheat or meslin flour and maize flour containing cassava flour -This is opposed by the CSOs as this will raise the cost of living for many Kenyans.

2. Excise Duty Proposed Amendments: A total of eighteen (18) amendments were considered by members. Out of these, the coalition endorses thirteen (13) of them for their consideration of the current cost of living in the county. Members oppose a total of five and recommend that the national assembly reject these:

• The excise duty on Mobile money transfer services to be increased from 12% to 15% of the excisable value – Members oppose this proposed amendment because it may lead to reduced transactions, thus reducing excise duty collection.
• Deleting “imported” to include locally manufactured sugar confectionery. Both imported and locally produced are to be excisable at Ksh 36.74 per Kg. Members reject this and recommend retaining the current status noting that taking this proposal up would hurt local production.
• The proposal to introduce an excise duty of Ksh. 25 per kg for powdered juice is rejected by the Coalition as it affects our local fruit industry. The powdered juice is a refined juice product, thus reducing wastage as it has a longer shelf life. Members recommend that a no excise duty Powdered juice as it is currently.
• The introduction of an excise duty on all sugar imported and locally produced, excluding imported or locally produced sugar purchased by the pharmaceutical industry, at Ksh. 5 per kg is opposed as it would hurt locally manufactured sugar and local farmers. The coalition recommends that there be no excise duty on all sugar imported and locally produced, excluding imported or locally produced sugar.

3. Income Tax Proposed Amendments: A total of seventeen (17) amendments were considered by members of the Coalition. Thirteen (13) of these are endorsed for their consideration of the current cost of living in the county. Page 3 of 5 Those opposed and recommended for rejection by the National Assembly are:

• Introduction of 10% P.A.Y.E tax on the first Ksh. 24,000 without relief – The coalition recommends retaining but with 100% relief as it is currently with the justification that the relief will cushion low-income earners from the high cost of living.
• Introduction of 35% P.A.Y.E for those earning a monthly income of Ksh. 500,000 and above per month - The coalition members reject this proposed amendment and recommend that the new rate of 35% should apply to those earning more than Ksh. 1,000,000 per month. This will ensure the majority of Kenyan households' disposable income remains constant to enable them to survive the harsh economic conditions.
• The amendment on the turnover tax threshold proposed to be revised so that Ksh 500,000 to Ksh. 15,000,000 taxed at 3% is rejected. Members recommend that the status quo (turnover tax threshold of from Ksh 1,000,000 to Ksh. 50,000,000 taxed at 1%) be retained. Members note that increasing the turnover tax from 1% to 3% may discourage the informal sector from embracing the turnover tax as the increase in rates may be viewed as punitive, in a sector that is still new in the taxation net and a major contributor to the economy.

The recommendations from the members of the Civil Society Organizations are made with the consideration of the prevailing economic situation of the country in mind. A national survey in December 2022 by Twaweza East Africa confirms that the most pressing issue plaguing the country is the cost of living, with 49% of citizens highlighting it as the primary concern. Additionally, the data from the same survey also revealed that more business owners reported their business is further declining compared to the previous year. It is, therefore, important that the government considers the citizens’ and business owners' economic situations and recognize that overtaxing could lead to increased tax avoidance and evasion and, consequently, less tax collection.

Furthermore, business owners might close down their businesses due to the heavy taxation, leading to more lost revenue by the government. Imposing more taxes on an already suffering citizenry is punitive for a government that promised to uplift Mwananchi at the bottom of the economic pyramid. We ask that the National Assembly carefully considers the views expressed in this press statement and accompanying press brief, thus saving Kenyans from the possibility of being overtaxed. As we shift the government focus from overtaxing citizens and businesses, we wish to propose the following as alternative measures that the government could use to meet its revenue collection taxes:

• First, the government needs to relook the conditions imposed by bilateral donors and in particular those driven by the IMF under the fiscal consolidation program. It must also urgently develop a debt renegotiation program and institute genuine austerity measures that address the high debt stock that is taking up most of the expenditure on revenue raised. The austerity measures must include a look at the hiring being done at the high level of state officers and public officers for political consolidation. This must be accompanied by appointment into leadership of people who hold the highest of integrity to create the required culture in our public service that will anchor transparency, accountability and participation that fosters ownership of our public finance processes by the people.
• Second, reduce tax expenditures, which are taxes forgone to provide incentives to businesses. These amount to about Kshs. 333 billion per year on average between 2017 and2021. Page 4 of 5 Clarity must also be provided on the beneficiaries of these tax expenditures to ensure equality in tax policy.
• Third, push for the full devolution of functions from the national government to county governments, which would eliminate duplication of functions and save resources. Some county government functions are still being fulfilled by state corporations, for which are budgeted. These corporations can be dissolved or privatised, and their funding passed to counties. According to the Parliamentary Budget Office, the government could make as much as Kshs. 30 billion a year from the privatisation of some state corporations.
• The fourth measure is to empower and adequately finance institutions like the EACC and the judiciary to aid the fight against corruption. The Kenyan government loses over 2 billion shillings daily to corruption which translates to around 730 billion per year.[2] In the last five years, there have been successful conviction and non-conviction-based forfeitures. However, many asset recovery cases are lost due to the lacklustre approach to investigation, lack of proper coordination among the asset recovery agencies, and political interference. The EACC, Judiciary and ODPP must be empowered to effectively pursue these cases by enhancing their independence and capacity to fight economic crime.
• Fifth, empower the office of the Public Debt Management by making it an independent office. Making the office independent would help it mitigate public debt conflicts and advise the government on the debt ceiling. Increased debt without a return on service from that debt caused by corruption and the Executive’s ability to manipulate the debt increment. An independent office of Public Debt Management would be able to curb the harm caused by such corruption and manipulation.
• Sixth, increase Parliament’s oversight of budget implementation to reduce wasteful expenditure. The role of overseeing the implementation of the national budget lies with the National Assembly. Pressure must be placed upon this body to take the implementation reports and recommendations from the Office of the Controller of Budget and the audit reports from the Office of the Attorney General. This will aid in holding the different MDAs to account for their spending.

The Finance Bill 2023 risks bleeding Kenyans dry through taxation. The proposed taxation measures are injurious to the Kenyan population. We urge Parliament to reject the proposal to overtax the employed population and informal sectors. Instead, focus on tax compliance on the existing taxes and a strong push for accountability of all revenue collected through taxes or acquired in debt. It is evident that the effects of imprudent fiscal management have dire consequences on the incomes and quality of life. The past actions of our government that enabled graft and misappropriation of revenue are now affecting Kenyans who are struggling with access to essential services and reduced income due to inflation and the high cost of personal goods and public services.

Based on this awakening, Okoa Uchumi today announces the following actions:

1. We will collate all memoranda submitted to parliament by the people and disseminate widely the will of the people.
2. Mobilise all Kenyans to inform their member of Parliament on their stand on the finance bill 2023.
3. Have a people assembly of all 290 constituencies during the debate and voting on the finance bill and prepare and publish how each MP voted.
4. If the will of the people is subverted, we will commence the process of exercising our powers as the sovereign and commence public actions targeting the executive and Parliament across the entire country.

Sincerely,

The undersigned Okoa Uchumi Campaign Members:

1. National Taxpayers Association
2. Kenya Human Rights Commission
3. The Institute for Social Accountability
4. Amnesty International Kenya
5. International Budget Partnership Kenya
6. Centre for Economic Governance
7. Civil Forum for Asset Recovery
8. Centre for Fiscal Affairs
9. Transparency International Kenya
10. REMUSI Housing
11. Oxfam Kenya
12. African Forum and Network on Debt and Development
13. EACHRights
14. Kenya Tobacco Control Alliance
15. Econews Africa
16. East Africa Tax and Governance Network
17. Tax Justice Network Africa
18. Uraia Trust
19. Christian Aid Kenya
20. Muslims for Human Rights
21. Inter-Religious Council of Kenya
22. Katiba Institute
23. Inuka Ni Sisi
24. Okoa Mombasa
25. Pawa254
26. ActionAid International Kenya
27. Institute of Public Finance

The Okoa Uchumi campaign is a civil society platform committed towards working with stakeholders to resolve Kenya's public debt crisis. The campaign advocates for balanced and equitable budgets as a means of achieving debt sustainability and economic inclusion. The campaign seeks to bolster constitutional safeguards in public debt management and to push for the accountability of political leaders in public debt management.

JOINT CIVIL SOCIETY PRESS STATEMENT
Wednesday, 19th April 2023, Hill Park Hotel - Lower Hill Road, Nairobi

KENYA BELONGS TO THE PEOPLE RECLAIMING OUR SOVEREIGN POWER!

Dear Kenyans, as a country, we are in a political standoff; facing yet another round of political contestation which threatens our democratic and constitutional order. The stalemate has been largely driven by the political class. The people of Kenya who have been granted the sovereign power under article 1 of the constitution are being excluded and are hardly involved in key decision making processes that impact on their lives.

Following consultations held in the last week amongst civil society, this concerns us.
Dear Kenyans, in 2010 we promulgated a peoples’ constitution that vested sovereign power in the people, and yet we are still beholden to our political leaders, as subject of the colonial rulers were bound to their imperial lords.

Our leaders have violated many aspects of the constitution while we watch on helplessly, forgetting that the power rests with us. Our political leaders have:

1. Betrayed Kenyans’ quest for sustainable solution to the ongoing food crisis, cost of living and access to public services such as quality education, water, housing and health contrary to Article 43 of the Constitutional of Kenya.
2. Destroyed the economy and failed to use their mandates to fix those parts that need fixing, and consequently making life unbearable for the majority of Kenyans.
3. Over borrowed, misspent, mismanaged, and stolen the proceeds of imprudent and expensive loans, leaving Kenyans with an unsustainable debt burden.
4. Instituted heavy taxes to pay for their largess and political arrangements by living opulent lifestyles and loading up the public wage bill with political cronies, while political allies evade taxes placing the taxation burden on the Kenyan taxpayer.
5. Partaken in the plunder of the public purse and have adopted misplaced policies to defund public services, while basic services such as health, education, and agriculture flounder due to corruption and mismanagement government officials at all levels.
6. Appointed to public office individuals with questionable integrity and further established unconstitutional offices to reward their political cronies
7. Orchestrated deliberate state capture of independent institutions namely the office of the Director of Public Prosecutions (ODPP), the National Police Service (NPS), the Office of the Controller of Budget among others to serve partisan political interests.
8. Sought to convert Kenya into a police state weaponizing security apparatus in the country against citizens.
9. Continued to weaken and interfere with governance of elections and political conduct against the spirit of the constitution manifested through infiltration of the Independent Electoral and Boundaries Commission (IEBC), Ethics and Anti--Corruption Commission (EACC) and other institutions with related mandate on elections.
10. Continue to undermine and erode devolution through deliberate delay and underfunding of counties, failure to release devolved functions and abating unaccountability of county governments.

In view of the foregoing, we hold that political leaders have unfortunately and repeatedly hijacked opportunities to address the above issues and converted them into bi partisan processes between political elite that end up with minimalist, compromised and non
transformative reforms that only serve their selfish political interest

We therefore demand the following:

1. Restructure and expand the proposed bi partisan parliamentary talks to make it an inclusive, independent and citizen led dialogue process to discuss the immediate electoral issues and cost of living crisis and address a wider discussion on mid term issues to get the country back on track.
2. Develop a framework with principles, values, timelines, and enforceability mechanisms for the dialogues to protect it from political capture and deal making to ensure it addresses Kenyans’ interests as previously envisioned.
3. The above can be modelled along the National Constitutional Conference commonly known as the Bomas Process which brought together legislators, district delegates, and all key sectors as equal players to discuss and adopt the draft constitution between April 2003 and March 2004.

With or without the constitution of the above framework, we therefore commit:

1. To reach out to all civic groups and other progressive forces to institute an authentic citizen agenda and process for the salvation of our country through the collective action of the people as provided in the constitution of Kenya. These include religious, trade unions, professional bodies, business groups, and the media at national and county level among others.
2. To engage political leaders, regional actors, and international community to work closely in pushing the Kenya recovery agenda including Agenda Four item of the Kenya National Dialogue and Reconciliation Process 2008.
3. To institute a values based, rights driven and citizen led process of economic and democratic justice to address those who have committed crimes against the people of Kenya. It is for this reason that we are advocating for the adoption and implementation of the Truth, Justice and Reconciliation Commission (TJRC) report among other reports on historical injustices in Kenya.

BLEAK AND DIRE: Human Rights and Governance Crisis in Kenya
NAIROBI: APRIL 3^RD, 2023

We, human rights and governance organisations take note of yesterday’s offer by the President to adopt a bipartisan parliamentary approach as well as the opposition counteroffer led by Azimio la Umoja coalition party to suspend the protests and give room for dialogue on SELECT human rights and governance issues.

The truce follows months of political confrontation and contestation on among other issues unresolved electoral justice concerns from previous elections, inequalities in accessing basic services and the high cost of living. The climax to the dissident was witnessed in the recent weekly demonstrations, in which many Kenyans heeded the opposition leader, Mr. Raila Odinga’s call to take to the streets to protest and compel the current regime to implement necessary measures to remedy the dire situation.

Whereas the Constitution under Article 37 gives the right to peaceably assemble, demonstrate, picket, and present petitions to public authorities, the turn of events during the recent protests laid bare the bleak and dire state of the nation due to the patterns that characterised it including; Wanton looting and destruction of public and private properties; violence meted out on innocent protesters by the State through the use of live ammunition, excessive tear gas, and other forms of violence. In addition, the media was not spared as horrific violence was meted out on journalists covering the demonstrations as well as an attempt to muzzle media freedom. These actions are unacceptable and fly in the face of the principles of democracy and the rule of law.

The above state of affairs amounts to a crisis of human rights and governance that is avoidable and unnecessary. Noteworthy, this is not the first time the country is going through such a fragile moment requiring national dialogue as similar scenarios were witnessed during the 1997 crisis that culminated in the establishment of the Inter-Party Parliamentary Group, the 2005 referendum, the 2007/08 post-election violence that led to the formation of a coalition government, the 2017 general elections contestations that led to a repeat of the Presidential polls, and the recently concluded 2022 election processes that continue to face opposition. Unfortunately, the National dialogues have resulted in minimal reforms safe for the 2007/08 National Accord and Reconciliation process.

Considering the matters and the latest developments in the state of the nation, we make the following demands;

1. The government MUST urgently come up with a pro-poor and rights-based framework to deal with the high cost of living to realise the Economic and Social Rights aspirations outlined under Article 43 of the Constitution of Kenya.
2. We call on CRITICAL offices among them the Independent Policing Oversight Authority (IPOA), Kenya National Commission on Human Rights (KNCHR) and the National Cohesion and Integration Commission (NCIC) to investigate the conduct of the police, political class and civilians that is against the rule of law during the demonstrations and take requisite legal actions
3. We URGE the police and citizens to act within the law. As a democratic country, Kenya values the right to freedom of expression, assembly and association as guaranteed in the Constitution and ANY attempts to claw back the gains made will be resisted vehemently.
4. The liberalisation and indigenisation of the media industry have grown full circle and bolstered our democracy and as such media MUST be allowed to operate freely and without fear of intimidation, reprisal and violence.
5. The bipartisan parliamentary approach to redress outstanding electoral issues MUST take a multi-sectoral approach and ensure inclusivity and comprehensive resolution of historical and emerging governance issues bedeviling the country; be opened up to other critical players including civil society actors, professional associations, faith-based organisations, student leadership, private sector, trade unions, media and other civic formations.

The latest developments on the state of the nation present an opportunity for the nation to transform from the regressive and repressive governance culture that has been sustained since the colonial era mainly serving the interests of the elite and excluding the people.

Pursuant to our mandate as a sector, we will continue monitoring, documenting and responding to
emerging human rights and governance issues towards promoting inclusive governance and
adherence to the rule of law

May Justice be our shield and defender!

Adding salt to injury? Repressive Response by Police to Kenyans facing economic hardships

Six months since the formation of the Kenya Kwanza regime, Kenyans from all walks of life continue to grapple with high cost of living, heavy taxation, unemployment, and a litany of unconstitutional decisions that are a serious threat to livelihoods, health, food sovereignty and acceptable quality housing, clean and safe water, social security and education as provided for under Article 43 of the Constitution of Kenya.

Despite the promises by the Kenya Kwanza political alliance during the campaigns, inauguration and during the last six months in office, the foundations laid so far do not guarantee the realization of the sugarcoated promises. This is attributed to the failure of the new Government to respect the sovereignty of the people and the Constitutional provision in Article 19 that the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies.

Given this context of non-compliance, Kenyans remain with a sole obligation to defend the Constitution and demand for these rights through among other public actions. It is on this basis, the Constitution guarantees under Article 37 the right to peaceably assemble, picket and demonstrate against any actor whose conduct is inimical to these obligations.

Today, the Constitution has been put to test when Kenyans across the Country led by the political opposition were denied the opportunity to stand against the aforementioned concerns. The President, the Cabinet Secretary- Ministry of Interior and National Administration and the County Commander in unison deemed the protest illegal and contrary to public order and security. This interpretation is misguided and faulty--for in the Constitution, there is no limitation on this basis and the Public Order Act does not grant the police power to approve or disapprove any public gatherings.

The conduct of the police that was characterized by unlawful arrests, excessive and violent use of force, injuries, killings and restriction of movements was uncalled for and a stark reminder of the dark dictatorial tactics of the KANU- Kenyatta and Moi regimes. This unfortune development contradicts the expected transition in the Constitution from: a police force to a service and regime to democratic police. The Constitution under Article 244 (c) provides that the National Police Service SHALL comply with fundamental standards of human rights and freedoms.

We strongly condemn this barbaric conduct by the state and the police which have refused to transform since the colonial times.  For over a century now, the police have and continues to be used as a tool of political repression and weaponization by the ruling elite to settle political scores.  We demand for the unconditional release of all those unlawfully arrested, action for the perpetrators and a guarantee for non-repetition. We also demand that the Government address the high cost of living as a matter of priority because Kenyans are suffering.

Non-adherence to fiscal responsibility principles: normalising the abnormal?

On countless occasions, the top leadership and allies of the Kenya Kwanza regime have multifariously implored Kenyans not to judge the performance of the current government harshly and hastily. However, it cannot be gainsaid that the early days of a regime lend huge significance to the path its leadership is likely to take and its ultimate legacy. The current political and economic state of the nation is worrying and can only be construed to mean the country is on a perilous trajectory.

The office of the Controller of Budget (OCOB), charged with overseeing the implementation of the budgets for both the National and County governments, recently released the second quarter national government implementation report for the financial year (FY) 2022/2023 in accordance with the Constitution. A review of the report reveals two critical issues that point to a breach of the Constitution and the Public Finance Management, Act 2012, that if unchecked will have dire consequences as far as public finance management is concerned.

1. Misplaced spending priorities?

Considering the hard economic times and looking back at the pledges /promises upon which the president campaigned on inter-alia reduce borrowing, empower hustlers, reform the education sector and lower the cost of living, Kenyans expect a government by the people and for the people which from the look of things is a complete contrast of the current regime. According to the Controller of the budget report, the Ministries, Departments, and Agencies (MDAs) spent over Kshs. 3 billion on domestic travel in a span of three months between November 2022 and January 2023, Kshs. 2.8 billion on coordination of statehouse functions and Kshs. 0.88 billion on coordination and supervision by the office of the Deputy President over the same period. If the controller of budget report is anything to go by, it is safe to state that the government has misplaced priorities which is a direct contravention of Article 201 (d) which provides that "public money shall be used in a prudent and responsible way.

2. Continued breach of the 70:30 spending rule

Public Finance Management Act, 2012, Section 15(2)(a) requires the national government to allocate a minimum of 30 percent of its budget to development expenditure and a maximum of 70 percent toward recurrent expenditure in any given financial year. Simply put, this allows the government to balance the electorate priorities vis a vis the administrative needs of the government.  Out of the Kshs. 3.3 trillion budget for FY  2022/2023, only 21.5 percent was channeled to development expenditure. Further, the second quarter national government implementation report for the FY 2022/2023 reveals that Kshs. 1.27 trillion translating to 88 percent was directed to recurrent expenditure and Kshs. 0.17 towards the development budget representing 12 percent. This finding is not unique to this current regime but a trend that has been propagated over the past fiscal years thus requiring urgent action.

Further, the move by the government to extend life to Chief Administrative Secretary positions and the creation of two functional offices for the spouses of the Deputy President and the spouse of the Prime Cabinet Secretary is unwarranted and can only be interpreted as a reward for the president’s sycophants, a move that fails the governance test, balloons the wage bill and burdens the taxpayers; the consequence of the above will be deprivation of the common Mwananchi access to basic services, which is one of the main tenets of devolution.

Noteworthy, the ordinary Kenyan continues to bear the brunt of huge taxation to finance the government budget and expects that the government puts into good use the revenues and in return effectively and in an affordable manner provides services to millions of Kenyans who are currently facing starvation and high cost of living.

Based on the foregoing, the Kenya Human Rights Commission shares its dissatisfaction with the way public resources are being managed by the current regime and demands the following actions;

Our Demands:

• The executive arm of government to respect, uphold and protect the Constitutional provisions as far as public finance management is concerned.
• The legislature particularly the Public Accounts Committee (PAC) to discharge its mandate faithfully, objectively and diligently by ensuring checks and balances of the executive in utilisation of public resources.
• The relevant independent institutions particularly the office of the Auditor General to thoroughly investigate the issues raised in the controller of the budget report and act accordingly.
• To the people of Kenya, sovereign power belongs to us and the least we can ask our leaders to whom we have delegated this power is to discharge the same in a manner that serves our interests and revamping of the economy to ease the tax burden on our shoulders remains a top priority.

Elimu Bora Working Group (EBWG) remains concerned that despite the myriad of challenges facing the Education sector today, inter alia, the extremely below average CBC-JSS Grade 7 transition, Form 1 selection and transition, inconsistent policy pronouncements and threats of privatization in tertiary institutions, incoherent teacher recruitment, deployments, re-deployments, management, the gaping scarcity of financial resources to schools, the infrastructure deficits… there appears to be an all-out State-sanctioned PR mobilisation to make Kenyans feel that all is right with no tangible interventions being seen to effectively address the challenges.

1) Transitions
Grade 7
It is now close to a month since the Grade 7 reported to school. The national assessment of public primary schools’ readiness to receive the Grade 7 students and facilitate them to learn obviously encountered gaping challenges which EBWG assumed that the government would be prioritizing in their interventions. Sadly, there seems to be no public confidence in the discordant cold-and-hot blows from the government
We note the following pressing challenges in the Grade 7 transition:-

• There is still a huge gap in provision of the physical infrastructure in most public primary schools including inadequate, insufficient or non-existent buildings and furniture and this is compounded by their accessibility for learners and teachers with disabilities
• The number of teachers recruited for JSS is grossly insufficient and it remains unclear what the status is for the 30,000 that the TSC promised to recruit. We remain concerned that the recruited teachers have not been properly inducted to deliver on the CBC-JSS curriculum. We are alarmed that the government has totally not paid attention to critical issues such as teacher availability, qualifications and readiness to teach, the male-female ration for teachers and special skills required for differently gifted learners such as sign-language abilities and braille-use abilities, among others.
• Most primary schools do not have curriculum materials for delivery of the JSS, especially Grade 7 - teaching and learning materials including teaching aids, text books, exercise books, blackboards, chalk, duster
• A majority of the schools have still not restructured their management and administration to accord with domiciling of JSS in primary schools.
• We are gravely concerned by the low student enrollment and registration in Grade 7 with the rate currently standing between 60-80% and the big question remains- where are the rest of the students?
• There are credible reports that parents are opting to have their children skip Grade 7 to join Standard 8 (CBC to 8-4-4). This in our view confirms that even parents are not able, were not ready and have not been adequately facilitated to transition their children to JSS.
• The vast majority of schools are still grappling with the basics we have highlighted and therefore issues such as health, safety and security have been pushed to the periphery.
• Most public schools remain ill-prepared for the demands of the Digital Learning Program. Availability of equipment and internet connectivity remains an unaddressed challenge.
• Have funds (Ksh 15,000 per student) been transferred to the schools for JSS/ How is financing management system of schools like? (Office, safe cash box, book-keeper, school accounts)
• Where are the 200,000 students who are yet to report to Grade 7?

Form 1

• Only 80% of the students have reported to Form 1, it is not clear where the remaining 20% are.
• School fees menace – Has the government vacated the fee guidelines issued by Matiang’i/Magoha? Are our day secondary schools free or fee has been introduced?
• Funds transfers for free day secondary schools - what is causing the delay in transferring the Ksh 22,500 per student per year been transferred to schools? Why is there a difference in allocation to JSS? What informed the disparity?

2) 2^nd Interim Report of the PWPER
The report covers Tertiary Education and Teacher Education
It focuses on Governance and Financing in Technical, Vocational Education and Training (TVET), Governance and Financing in University Education, and Operationalization of the Open University of Kenya
The issue of Entry Requirements for Pre-service Diploma Teacher Education
EBWG worries seem to be aggravated :–

• What yardstick is the PWPER using to declare that “Grade 7 learners have successfully transitioned”? Is this a sign of things to come in the main report? Why the cover-up?
• Why is the visioning for the education in Kenya glued to the Vision 2030 which is in twilight stage? Can’t Kenya project its education beyond the 2030 goals?
• Has the TVET been well re-thought when we are still talking of recruiting an additional 8,817 trainers - at least 50% at the onset and the remainder in a phased approach - to resolve the staffing shortage in TVET institutions? TVET was supposed to be delivering practical skill sets for the trainees and what does retooling TVET trainers on Competency Based Education and Training (CBET) really mean? How and who will deliver it?
• One key issue on TVET is financing. What has been recommended to address it? When students’ fees for University Education is being increased – which we totally disagree with – why is the TVET case silent?
• Why is government keen on controlling the management of public universities by appointing compliant council members? University councils should be selected on the basis of merit and once confirmed, should have the full responsibility of recruiting the VC. Categories of stakeholders eg students, lecturers, non-teaching staff, alumni should have a free hand to elect reps to the councils
• Why is the PWPER silent on call for total overhaul of the University Amendment Act?
• Why is the PWPER silent on the push for privatization of public universities?

WE DEMAND THAT;

1. The government must forthwith stop using children as pawn by putting them through a chaotic, ill-thought out and rushed new education system. JSS especially those domiciled in public primary schools are marred with huge challenges ranging from congestion to a shortage in infrastructure, teachers and even classrooms.
2. The random movement of primary school teachers to JSS must stop forthwith. In addition to the staffing challenges that will be caused by this movement, we note that most of the primary school teachers have not been trained for JSS.
3. The government must urgently account for the more than 200,000 learners that have not reported to JSS. If they are running away from a failed system, what is the government doing to address this?
4. The move by government to privatize education by raising university fees and failing to adequately finance TVETs must stop immediately.
5. The government must bite the bullet and admit that postponing the roll out of JSS is not an admission of failure but is ultimately in the interest of the learners, parents and the country at large. While we appreciate that the 8-4-4 system is also riddled by many structural problems, Elimu Bora

Working Group holds that the government needs to take more time to evaluate progress in the roll out of JSS and take urgent remedial steps without jeopardizing the lives of our learners.

To many, KHRC remains the Vanguard for Human Rights and Champion for Democracy during the 30 years of its existence. It is for this reason the KHRC Board and staff is constituted of the foremost leaders and activists in the struggles for human rights and governance in Kenya and beyond.

To this regard, we are delighted to announce the appointment of Betty Okero as our Vice Chair to the Board; Nerima Wako-Ojiwa; Kwamchetsi Makokha; Lorna Dias and Wanjiru Gikonyo as Board Members; and Cornelius Oduor as our Deputy Executive Director (DED).

Brief profiles of the new members:

1. Betty Okero has been on the board of KHRC for the last 4 years. A seasoned champion of human rights, access to justice, conflict management, and democracy and governance working with indigent communities; Betty is the Executive Director of the Civil Society Organizations Network (CSO Network) and the Coordinator of the Angaza Movement among other social justice organizations.
2. Nerima Wako-Ojiwa is a Kenyan political analyst who currently serves as the Executive Director of Siasa Place, an organization led by young people that engages young Kenyans, educating them about the constitution, governance, and electoral processes, through community engagements and social media. Nerima is also a columnist with "The East African" and is a 2018 Obama Leaders Fellow.
3. Kwamchetsi Makokha is an experienced communication specialist with a demonstrated history of working in the media and has over two decades on the frontline of the struggle for human dignity. He is currently a consultant with Form & Content Consultancy. He is well-published and is a columnist for the Daily Nation, The Elephant, and other digital platforms.
4. Lorna Dias is a media consultant and social justice activist with 15 years of experience in policy engagement and advocacy on governance, human rights, and HIV and is an AusAID Australian Leadership Award Fellow. Currently tl1e Executive Coordinator of the Gay and Lesbian Coalition of Kenya
   (GALCK) she has contributed to several publications on violence, sexual health and human rights for sexual and gender minorities, sex workers, and people who use drugs, and has supporte
5. Wanjiru Gikonyo is a champion of good governance and has over 15 years in the promotion of citizen-led accountability in Kenya. Through her work, she has contributed towards public participation and social accountability practice in Kenya and has been vocal in promoting and protecting devolution. She is tl1e founder of The Institute for Social Accountability (TISA), a foremost governance institution in Kenya.
6. Cornelius Oduor is a Social Scientist by training, with over ten years of experience in managing Civic Education and Governance programmes. He is currently the Centre for Enhancing Democracy & Good Governance Chief Executive Officer, based in Nakuru. He has consulted on participatory approaches and public finance management and has participated in tl1e development of social accountability guides for various Civil Society Organizations in Kenya. He is well versed in administration, leadership, communication and organization skills.

The appointments take immediate effect and are meant to strengthen KHRC's role as a leading organization in exposing and combating societal injustices and standing between power and powerlessness. It is also timely as we develop and execute our strategic blueprint dedicated to confronting the endless social, economic, political, environmental, and technological conundrums in society during the next 5 years.
The KHRC and human rights movement will be enriched by the in-depth knowledge and unrivalled experiences of these very distinguished leaders. They join other existing board members: Maina Kiai Fr Gabriel Dolan and Davis Malombe - Ex-officio. Together with our prolific management and operational staff, we are committed to taking our institutional vision and mandate to the next level.
Kindly join me in welcoming the new team to the leadership of the Commission. We continue to count on your outstanding support and partnership.

Secondly, many Kenyans are grappling with an intensifying drought that has led to deaths, yet the government has not provided meaningful relief to communities suffering from severe drought in parts of the country. Drought has remained a perennial problem and is a governance issue.

Further, we are equally concerned about the wave of careless utterances and calculated political events happening across the country. We note that nothing happens in isolation and reiterate that these are part of a grand scheme to test the democratic resolve of the Kenyan people - the most significant being a proposal to remove the term limit for the presidency.

We wish to call out the recent outburst by Fafi MP Salah Yakub calling for Constitutional amendments to remove the Presidential term limit and replace it with age limit which creates the tenure for dictatorial regimes as seen in the sub-region.

We are aware that these schemes are a primer for future attempts to mutilate the Constitution. This comes amidst the background of the continued non-compliance and disregard of the constitution by the Kenya Kwanza regime barely 3 months in office. We therefore call on all patriotic Kenyans to stand in defense of the constitution, and not cede an inch of our sovereignty as a people.

We wish to remind Kenyans of our dark history, especially under the KANU regime, where an imperial presidency emasculated both parliament and the judiciary - effectively creating a corrupt dictatorship that made Kenya stagnant for decades.

We are also appalled by the systematic acts of impunity and blatant disregard for the rule of law that has seen heinous violations targeted at innocent Kenyans.

A few days ago, Kenyans watched in horror as a family was evicted from a house they have owned for the last 46 years in Nairobi’s Westlands area under unexplainable circumstances. That the police allowed this act of thuggery to happen despite there being a court order and a notice from the Nairobi County Government stopping the demolition/eviction should be very worrying for Kenyans. Such unabetted criminal acts must never be allowed to happen in this country, for they are a reversal of the gains we have made over the years. We demand justice for the family of Avani Shah, whilst also demanding that those responsible be brought to book. We urge all Kenyans to remain vigilant, for such acts are likely to become commonplace over these coming years.

We are equally concerned by recent remarks by the Cabinet Secretary for Education, who is on record stating that universities should generate their own revenue as the Government of Kenya would no longer fund them. Education is a right and must be made accessible to all Kenyans. This attempt to consign rights from public governance to private interest is ill-advised as it will result in increases in tuition fees - making university and college education out of reach for millions poor Kenyans. We therefore urge the ministry of education to come up with realistic and workable solutions to the financial crisis facing our institutions of higher learning, many of which are unable to pay staff or remit staff pensions and other statutory deductions.

Lastly, we wish to express concern about the pilots’ strike and the inability of the Kenya Airways management to meaningfully resolve the impasse. Apart from crippling the national carrier, the strike has also resulted in untold anguish many travelers and disruption of supply chains, especially for the agricultural sector where many Kenyans have been earning a living. The Kenya Airways management must move fast to address the pilots’ grievances in a manner that is respectful of labor laws. The right to organize and participate in industrial action is guaranteed in the constitution under Article 41 and should not be curtailed in any way.

Kenyans are facing many more problems and challenges in the counties, towns, neighborhoods and villages that they live in. From extrajudicial killings to a spate of day light muggings that foment fear for hard-working people in the affected areas, insecurity has intensified in parts of the country resulting in the deaths of innocent Kenyans. We urge the security apparatus to step up vigilance in stemming these needless killings.

We take this opportunity to once again condemn in the strongest terms the current wave of careless political rhetoric and breakdown of governance processes that seek to reverse the gains of the Constitution and take us back to the dark days of the KANU regime.

Kenyans must remember that this is our country, and that we must remain vigilant for we have a collective responsibility to create a better society for ourselves and for future generations.

The struggle is on!

The Kenya Human Rights Commission continues to maintain a keen eye on various appointments and nominations ongoing in the current government. Previously, we have pointed out how the government has blatantly ignored constitutional provisions on inclusion in the appointment of Cabinet Secretaries and nomination of Members of the County Assemblies, among others. With the current National Assembly Committee leadership positions, we note a trend of the breach of the two-thirds gender rule and the ethnic balance requirement.

Article 27(3) of the Constitution of Kenya provides that all men and women have a right to equal opportunities in political, economic and social spheres. During the recently concluded elections campaigns, President Ruto made a declaration to ensure the actualization of the two-third gender rule in accordance with Article 27 (8) of the Constitution of Kenya, which provides that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. However, the President has continuously failed to honour this constitutional requirement and his commitment to achieve a 50:50 gender balance in the appointments and nominations. In addition, the President signed the charter of inclusion which clearly has been ignored in the National Assembly Committee Leadership appointments.

Noteworthy, the history of our country was an important factor during the drafting of our Constitution. Both the Krigler Commission and the Waki reports that largely informed the drafting of the Constitution and various other statutes make reference to ethnic imbalance and discrimination against marginalized communities as a trigger to the post-election violence in 2008. Inclusion is a national value espoused in Article 10 of the Constitution. Various constitutional provisions emphasize the need to embrace our ethnic diversity in appointments made in the government. Therefore, upholding our Constitution and ensuring ethnic diversity in government appointments is a part of fostering stability in our nation.

The latest list of appointments to the National Assembly leadership and the Principal Secretaries nominations have been the boldest disregard for the principles of inclusivity encompassed in Article 10 of the Constitution. Out of the 25 National Assembly Committee Chairpersons, 24 are men. Furthermore, 12 out of the 25 appointments come from the previous Rift Valley Province. Some regions, like the Coast and North-Eastern areas, are not represented, while the Eastern and Nyanza regions have one representative each. Nairobi and Western regions have two representatives each, while the rest of the slots have been awarded to the former Central region.

The biggest share of the recent nomination slots for the Principal Secretaries have been given to Kalenjin and Kikuyu communities as happened with the appointments of Cabinet Secretaries. 13 appointees to the Principal Secretary position come from the Kalenjin Community and another 13 appointees from the Kikuyu Community with 9 other communities getting minimal representation and the bigger number of other communities have been left out. This is unjust given that Kenya has 45 communities most of which have historically suffered from discrimination, especially by the ruling class. Additionally, out of the possible 51 Principal Secretaries, only 11 women were nominated while persons with disabilities were left out. The President has set a very dangerous precedent in which the rule of law has been completely ignored in all the nominations and appointments.

Article 131 (1) (e) envisages the President as a symbol of national unity, representing Kenyans across all divides. The above nominations are a clear indication that the President is still in the election and campaign mode, failing to understand his role as the President and the pillar of unity. The continuous and deliberate marginalization of other communities from decision-making spaces is retrogressive and endangers the spirit of national cohesion and integration.

WE DEMAND THAT:

• All arms of government, starting with the President, to respect, uphold and protect the Constitution.
• All arms of government to effectively discharge their duty of oversight by ensuring checks and balances, and in this case, to act accordingly in holding each other accountable as provided for in the Constitution and other statutes.
• The Kenya National Commission on Human Rights (KNCHR), the National Gender and Equality Commission (NGEC), the National Cohesion and Integration Commission (NCIC) and the Commission on Administrative Justice (CAJ) hold the executive and legislative arms to account for their failure to uphold the Constitution and especially the values, principles and rights related to inclusivity, equity, equality,  non-discrimination,  national unity, public participation, integrity, accountability, the rule of law and fair administrative justice.
• The President to recall the nominations and strive to meet the required constitutional threshold on community inclusion as well as special interest groups.

Lastly, the KHRC calls upon the people of Kenya, the civil society, and media to demand for a balanced leadership at the national and county levels and to remain eternally vigilant in monitoring and responding to the government’s unabated and flagrant violation of the Constitution in key decisions.