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.

Covenant on Economic Social and Cultural Rights, and Convention on the Elimination of All forms of Racial Discrimination which are all premised on the respect for fundamental human rights and freedoms.

We hereby:

1. DEMAND for IMMEDIATE and UNCONDITIONAL release of the 24 Maasai elders who were arbitrarily arrested in June 2022 and remain illegally detained to date for taking a bold stand to oppose the illegal government evictions.
2. CALL upon the international community including local, regional and international civil society to join us to exhaust every possible avenue TO HOLD THE TANZANIA GOVERNMENT ACCOUNTABLE.
3. CALL upon the international community to EXERT MAXIMUM PRESSURE on the relevant companies as well as Tanzanian authorities including imposing ECONOMIC SANCTIONS to guarantee respect and protection of indigenous land rights.
4. We DEMAND that the government of Tanzania CEASE AND DESIST from any further violations and undertakes to commit to using the best available means to provide reparations to preserve the dignity, culture, and future of the communities affected and to explore alternatives in line with its international and regional treaty obligations.
5. We CONDEMN EXCLUSIONARY AND MILITARIZED CONSERVATION approaches that

restrict access to critical resources without providing for equal or better alternatives thus undermining enjoyment of fundamental human rights and freedoms. WE DEMAND that indigenous communities MUST be at the centre of global conversation efforts.

Kenya has over the years performed poorly in international ranking on corruption with the recent 2021 corruption perception index placing the country in position[1] 128 out of 180. Despite numerous statutory legal frameworks in the fight against corruption, over 40 corruption scandals were reported in the last 10 years alone with little done by former regimes to comprehensively hold to account those implicated. In addition, Ethics and Anti-Corruption Commission (EACC) indicates that the country loses approximately Kshs. 608 billion annually to the graft which translates to 7.8 percent of the GDP. The above trend is obviously worrying and to any concerned citizen, the government must prioritise the fight against corruption if it’s to achieve optimal development to steer the economy upward.

Corruption happens at all levels of society, in big and small affairs, manifesting itself in numerous ways including bribery, embezzlement, extortion, and money laundering, as well as conflicts of interest, the trading of influence, the abuse of functions, and the obstruction of justice[2]. Notably, innumerable graft cases reported in Kenya have involved public officers across different sectors and thus, safe to say public offices are a hotbed for corruption. The Constitution of Kenya is instrumental in the fight against corruption; Chapter Six provides for Leadership and Integrity, Article 10 provides for National Values and Principles of Governance, and last but not least Article 232 on Values and Principles of Public Service.

Based on the foregoing the fight against corruption largely featured in the 2022 elections campaign with all the four presidential aspirants and their deputies committing in public to fight the vice should they be elected to office. Obviously, there can be only one winner and at the end of what was a highly contested election, we have The Kenya Kwanza government in place. Barely a week into office, The Kenya Human Rights Commission’s attention has been drawn to the unprofound, reckless, and laissez-faire attitude of the top leadership in the fight against corruption pointing to a wrong start as far as the fight against corruption is concerned. Without a doubt, this move if not curtailed will result in continued economic regress subsequently denying ordinary citizens the opportunity to enjoy the socio and economic rights envisaged in the Constitution.

We, therefore, condemn in the strongest terms possible the utterances by the Deputy President, Mr. Rigathi Gachagua on September 15, 2022, directed to the office of the Director of Criminal Investigation during the Governors and Deputy Governors induction meeting in Mombasa. We call it for what it is: a scathing attack on an independent institution, abuse of office, misuse of power, and breach of the Constitution that he recently took an oath to uphold.

The office of the Directorate of Criminal Investigations just like all the other institutions and commissions of this stature is by law permitted to conduct its business with full autonomy including investigating graft cases/suspects despite their authority or position in government. The Deputy President has therefore no right to dictate how the office should carry out its responsibilities. The sanctity and independence of investigative agencies are critical in the war against graft, and we urge all Kenyans to reject any suggestions or proposals that elected leaders to be given preferential treatment in the event of graft implications. The fight against corruption is multifaceted requiring concerted efforts from the presidency, oversight agencies, law enforcement agencies, and adequate funding to successfully win.

Our Demand:

1. That the Government commits to ensuring that oversight, investigative, and law enforcement agencies are robustly financed and given independence to discharge their duties without political interference.
2. The fight against corruption is tenable and must be urgently prioritised in current government’s agenda

In the last two days, Kenyans have been exposed to a continuous release of unverified election results, which has greatly escalated tension and anxiety around the country, most of which has emanated from mainstream and social media spaces propagated by the political actors. The above situation has further been exacerbated by the divergent live coverage of the presidential results tallying by the mainstream media which has caused confusion, anxiety, fear, unrest and in extreme cases, violence. The different sequencing of results in at least five (5) media houses has continued to display varying provisional results which can be construed to be in favour of the party seen to be leading on their platforms. Media houses also have a responsibility to educate the public, particularly in this sensitive environment. Publication of media houses’ tallying results must be accompanied by transparent, accessible, user-friendly information to the public on how these results can legitimately be interpreted. This should include easily visible information on timelines of the results, and the numerical coverage in terms of how many votes the results being reported have tallied. At all times, media must be at pains to inform the public that these periodic updates do not constitute final declarations on who has won the elections.

Social media has been awash with false information relating to the results of the elections which has not only caused massive tension, and division amongst the more than 23 million internet users in Kenya but has the potential to spark violence as has been witnessed in some parts of the country. According to the Office of the Director of Public Prosecutions (ODPP), there have been 74 elections-related cases reported, out of which 9% relate to publication of false information. We call on all institutions to uphold the constitutional rights of Kenyans, in this case, to freedom of expression:  the DPP cannot be the arbiter of what Kenyans are allowed to say or not say.

We are deeply concerned over the premature preparations of purported presidential “victory” celebrations made by the leading political parties as seen on both mainstream and social media platforms. The Angaza Movement calls for political maturity from everyone including the citizens and political leaders and their followers.  Kenya has had to deal with a history of political violence and conflict in several parts of the country associated with inter political disagreements and intransigence.  With palpable tensions increasing as a result of the projection of wins by the 2 lead political parties and their followers, we are now caught up in an environment of strong partisan positions that may overshadow an opportunity for both patience and tolerance. We further urge the IEBC to appreciate the political historical context around elections and therefore the need for constant update on the tallying process, to reassure Kenyans on the status of the count.

The Constitution of Kenya, 2010, has placed a responsibility on Kenyans to exercise and protect the rights contained within it; it is only by actively and responsibly exercising these rights that they will achieve the full promise of the constitution. There also exists a legal framework for counting, tallying, verifying and announcing election results and the IEBC must follow that law.  The IEBC remains the authority on the final declaration of the results.

We therefore demand that:

1. The political parties and their allies refrain from raising tension through premature and careless pronouncements of purported and unverified winners with immediate effect.
2. We urge social media platforms to continue carrying out their mandates in regulating content, while the public on the other hand should exercise their civic responsibility and refrain from making unsubstantiated claims on the ongoing tallying of results.
3. Kenyans everywhere assume their civic duty to critically assess unfounded claims of victory with the necessary vigilance
4. The Media Council of Kenya speeds up the consultation process towards commonly accepted best practices on the relaying of results by media houses as indicated on their press statement dated August 10, 2022, considering the environment that they are working in.
5. Kenyans continue to exercise patience and to uphold peace as the IEBC concludes the tallying process.

Kenyatta University is one of the leading universities in Kenya, a distinguished center of excellence which prides in developing, nurturing and mentoring some of the world's top scholars, researchers and experts in diverse fields. It is a body corporate registered under the Universities Act, thus can own property in its own name. The university which is the registered owner of a parcel of land LR NO.11026/2 risks losing more than 400 acres of its land to a state orchestrated scheme of land grabbing veiled as acquisition for supposed public interest.
On 4th July 2022, the Head of Public Service, Mr. Joseph K. Kinyua issued a directive to the Kenyatta University Vice Chancellor, Professor Paul Wainaina to surrender to the Ministry of Lands and Physical Planning the Title Deed for Kenyatta University parcel of Land LR. No. 11026/2 for excision on the said parcel in the following manner:

• World Health Organisation- 30 acres
• Africa Centre for Disease Control- 10 acres
• Kenyatta University Teaching, Referral, and Research Hospital ( KUTRRH)- 180 acres
• Ministry of Lands and Physical Planning- 190 acres to facilitate resolution of the Kamae Scheme.

Neither the University Vice Chancellor Professor Paul Wainaina nor the council was involved in the conversation leading to the decision to hive off a portion of the land despite them being the custodians of the land. Further the University has a detailed master plan which details how it intends to develop every inch of the land. The decision to alienate land from the University is therefore illegal, unconstitutional, and unprocedural; and speaks volumes of the height of state capture that is the heart of land administration in Kenya, which has hindered the realization of the much needed reforms and justice in that sector. The University Council has been victimized for resisting this criminality including the suspension of the Vice Chancellor, now reinstated after a legal battle, and sacking of the members of the University Council. We wish to applaud the Council for boldly standing tall in the face of impunity.
Continued encroachment through presidential directives to subdivide the Kenyatta University land can be traced to 1984 where a group of 670 squatters invaded part of the land and caused 30.82 acres excised for establishment of Kamae scheme. Recently In the matter of Kimani Mbugua and others vs. Kenyatta University of ELC no. 1460 of 2002, the court
upheld that the squatters have no rights of the title of possession to Kenyatta University land. The absurd insistence by the Cabinet to reward fraudsters at the altar of political expediency through the intended excision of 190 acres for the ostensible resettlement of these illegitimate squatters is baffling and certainly sparks more questions than answers.
These illegal sub divisions threaten the advancement of education for the next great generation of Kenyan leaders. Further it is an attack on the sanctity of the 2010 constitution and relevant legislations and policies which lay fundamental principles of governance; and transparent, cost-effective administration of land. It is despicable for the cabinet to make such a unilateral decision without the involvement of the Council and the public. Infact it is the sole mandate of the National Land Commission to undertake compulsory acquisition of land, yet they have maintained stern silence on the matter. It is this culture of impunity demonstrated by irregular acquisitions and allocations of land that has put Kenya at the crossroads of unresolved historical and current injustices. The unfolding events in Kenyatta University paint a vivid picture of executive overreach, and how it continues to stealthily erode our democracy, with coordinated draconian mechanisms to silence those who speak out against it. The civil society is greatly appalled by this culture of impunity which continues to be perpetrated by state cronies to suppress and undermine the rule of law and hereby DEMANDS the following:

1. That the government HALTS any developments and sub-divisions on the land pending the determination of ELC Petition E029/2022.
2. That the government STOPS the unethical and completely shameless harassment of Kenyatta University staff as well as deploying a more compliant administration to facilitate the land acquisition.
3. That the National Land Commission comes out to CONDEMN this illegality and implements its mandate.
4. That students, Alumni and the public strongly come out, and CALL OUT the government for this illegality.
5. That the Executive respects Constitutional commissions and the attendant legal processes.
6. Need for public participation amongst stakeholders including dissemination of the contract between the World Health Organisation and the GoK.
7.  Enhanced coordination between government agencies. This culture of government agencies working in silos is extremely disheartening.
8. That the Kenya National Commission on Human Rights and the Commission of Administrative Justice should COME OUT strongly to defend the right to education and fair administrative action under threat in this process.

-END-
SIGNED BY:
Kenya Land Alliance
Kenya Human Rights Commission
Katiba Institute
Mazingira Institute

PARIS – Data Rights and their Kenyan partner organisations the Kenya Human Rights Commission and the Nubian Rights Forum (NRF) are suing IDEMIA, one of the leading biometric tech companies in the world, before the Paris judicial tribunal. The case alleges that IDEMIA failed to adequately address human rights issues in its vigilance plan. The claimants specify that the company did not undertake human rights due diligence in the course of its 2018/2019 contract with the Kenyan government to furnish technology to capture the population’s biometric data for the development of a national digital ID system in Kenya, so-called National Integrated Identity Management System (NIIMS) or Huduma Namba.

The claimants argue that NIIMS runs the risk of excluding already marginalized communities who struggle to register. At the same time, the centralised storage of data without proper checks and balances carries the risk of being exploited for new purposes, including surveillance. Despite these apparent risks to human rights, IDEMIA sold the enabling technology to Kenya without conducting proper due diligence as required under the French Due Vigilance Law.

“Under French law, companies like IDEMIA must identify adverse human rights risks that may result from their business operations and take mitigating measures,” said the claimants’ attorneys Henri Thulliez and Slim Ben Achour. “Looking at IDEMIA’s due vigilance plan, it is clearly lacking any considerations of the risks that the use of their technology entail.”

The claimants are asking the Parisian court to order that IDEMIA adequately assess the risks inherent in Information Technology System (ITS) products and design appropriate mitigating measures. Data Rights emphasises the need for tech companies to adopt proper and efficient human rights due diligence procedures, especially when entering business relationships with governments.

“Biometric digital ID systems are often seen as an efficient way to modernise the public sector, but if this is done without due regard to its human rights impact, it can cause more harm than good”, said Lori Roussey from Data Rights. “Any new biometric technology and personal data processing solution can be misused. Companies must pay particular attention to whom they sell their services to.”