The SPECIAL REPORT GOVERNMENT FINALLY LEGALIZES LOCAL BREWS — Pages 14 & 19 SUPPLEMENT LEnhancingink governance for all PARTNERSHIP FOR — Pages 15 - 18 OCTOBER 2010 Issue No. 072 Kshs 40/= EU PEACE PROJECT CDF looters put on notice By FAITH MUIRURI Kituo Cha Sheria to start private legal ENYANS can now move to court to recover bil- lions of shillings lost through massive corruption and looting of devolved funds. proceedings against suspects A number of provisions in the new constitution Kprovide a solid foundation for litigation. Article 35 allows a person acting on public interest to move to court and seek redress in case of denial, violation, threat or infringement of rights Already Kituo Cha Sheria is compiling a list of cases that point to blatant embezzlement of public funds with a view to instituting private legal prosecutions on behalf of the aggrieved constituencies. “Some of these cases will inform the basis of our private prosecution,” says the Executive Director of Kituo Cha Sheria Priscilla Nyokabi. She says that the organization is currently focusing on the Constituency Development Fund (CDF) and will soon file criminal proceedings against corrupt officials in the affected constituencies. She says that in the past, CDF has been considered as a political question where the MPs besides being legislators un- dertook the role of implementers and watchdogs of the CDF activities and therefore imposed a major constraint on effec- tiveness and transparency of the fund “The current institutional arrangement of the CDF and the political context are particularly prone to abuse,” avers Nyoka- bi during an interview with The Link. But with the new constitution, Ms Nyokabi is optimistic that things will change for the better. She says that anybody can now invoke the criminal law to privately prosecute individuals who loot the devolved funds. She says that the option has been actuated by separation of functions between the Attorney General and the Director of Public Prosecution and therefore clauses previously used to de- rail the dispensation of justice will no longer hold in the new dispensation. JUSTICE: Prosecution powers now shifts to the office of the Director of Public Prosecution (DPP) in the new Turn to Page 2, Col. 1 Constitution. Inset: Amos Wako, AG (left) and DPP, Keriako Tobiko. EAC students free to transfer credits By MALACHI MOTANO Academic Exchange Service is review- Under the Credit Accumulation and “It will also create positive relationships ing courses and programmes being offered Transfer System (CATS) endorsed by among students and staff of these universi- UNIVERSITY students from the East Afri- among member states. Uganda’s National Council for Higher Edu- ties since they will have common knowl- can Community will be able to transfer their “This means a student taking a course at cation, the Commission for Higher Educa- edge,” said Cats regional co-ordinator credits to another institution in the region the University of Dar es Salaam can trans- tion in Kenya and the Tanzania Commission Michel Lejeune. possibly from December this year. fer while in second year, and continue the for Universities, teaching of science courses The harmonisation process involves sub- The university regulatory bodies under course at the University of Nairobi,” said such medicine, agriculture, engineering and ject experts from different universities of- the Inter-University Council of East Africa Everett Standa, the secretary to Kenya’s basic science will conform to uniform mini- fering similar programmes coming together (IUCEA) in collaboration with German Commission for Higher Education. mum standards. Turn to Page 2, Col. 1 Invest in adult Report faults Kemri get grant Demand for Education 8-4-4 system from Obama MBA grows —Pg. 4 —Pg. 8 —Pg. 25 —Back Page Inside The Link, October 2010 2 GOVERNANCE CDF looters put on notice From page 1 ency in managing public funds. Over the last decade, the govern- She cites the nolle proseque ment has employed a series of decen- powers that were vested to the Attor- tralisation programmes as a way to re- ney General in the old constitution verse inequalities and tackle poverty. which she adds can now be contest- This has seen the establishment of ed and declared invalid by a court of several special purpose funds includ- law in the new order. ing the now dominant Constituency The Director of Public Prosecu- Development Fund (CDF), the Pov- tions (DPP) under the new law is in erty Eradication Loan Fund (PELF), charge of prosecution and has the the Rural Electrification Programme mandate to institute criminal proceed- Levy Fund (REPLF), the Road ings against any person before any Maintenance Levy Fund (RAMFL), court in respect to an offense alleged the Community Development Trust to have been committed. Fund, the Free Primary Education Further Article 157(6) (b) of the Fund (FPE) and the Local Authority constitution stipulates that the DPP Transfer Fund (LATF). may take over any criminal proceed- Other major devolved funds in ings commenced in any court and in- Kenya are the Constituency Bursary stituted by another person or author- Fund (CBF), the Water Services Trust ity. Fund (WSTF) and the HIV/Aids The Attorney General on the other Community Initiative Account. hand is limited to being the principal A recent study by a consortium legal adviser to the Government and of researchers under the umbrella of representing it in legal proceedings. Oxford University’s Department of Ms Nyokabi says that once the list International Development confirms being compiled by her organization is massive wastage of devolved funds ready, then individuals implicated in A CDF project which is left unfinished. Photo/Gilbert Ochieng especially under the CDF. the misappropriation of CDF will face The Oxford University research the law. She laments that the siphon- which outlines that every citizen has office as some of the projects dogged picture on projects with audit queries. further points out that although most ing of public funds has in the past de- the right to access information held by with controversy, despite substantive She further says that the rate of legislators had been running the ma- nied Kenyans access to fundamental the state or by another person. allocations. completion in most projects is very jority of their CDF-funded projects in rights. Mbithi says that currently the The Dandora Foot Bridge was low.“Similarly a large number of the education sector since the creation “The misuse of funds has been management of CDF is mired in allocated Kshs1, 600,000 during the projects are stalled or abandoned of the CDF up until the election year linked to many social ills and injus- secrecy with some of the officials 2005/2006 financial year and in the .With this statistics, it is evident that of 2007, the trend is changing with tices in society. From poverty to unac- charged with management of funds previous year, the same project ben- laxity and embezzlement of financial focus going into projects that would countability and substandard medical lacking in credibility. efitted from Kshs1, 200,000. Records resources might have taken place and boost their chances of winning re- care and education,” she affirms. Mbithi spoke during the official availed to the audit team however re- therefore punitive action should be election. Ms Nyokabi spoke as the Execu- release of an audit report for Kasarani vealed that about Kshs400, 000 could taken against the officials and con- The International Monetary Fund tive Director of Transparency Interna- Constituency at the Korogocho social not be accounted for. tractors responsible” she said. (IMF), too, points out that the utiliza- tional (TI) Samuel Mbithi urged the hall. TISA national coordinator Wan- Ms Gikonyo also took issue with tion of devolved funds especially the government to fast truck the imple- The report jointly compiled by jiru Gikonyo also claims that lo- the current Kasarani MP Elizabeth main CDF remains a major challenge mentation of the new laws to curb the The Institute for Social Accountabil- cal people were not involved in the Ongoro for not sharing information in Kenya. looting of devolved funds. ity (TISA), Shelter Forum and Ufa- project identification and implemen- on project lists and respective alloca- It says a number of concerns have Mbithi says many politicians es- dhili Trust revealed that millions of tation processes. The report says that tions yet the money was released” she arisen in the implementation such as caped the law since the former consti- shillings from the Kasarani Constitu- out of the 11 projects sampled, only added. lack of coordination between those tution did not have clear stipulations ency Development Fund (CDF) kitty six had community involvement and She called on the Kasarani CDF in charge of CDF, local planning and on how to deal with offenders. have been lost in dubious projects. participation but only at the identifica- committee, The Ministry of Local central government planning. He says with the new law in place, The report also noted cases of tion and planning stage. Government, the Ministry of Finance “The recurrent costs of CDF politicians will have to allow their massive irregularities in the project Ms. Gikonyo says the former and the Ministry of Planning National projects are not fully taken into ac- constituents access information that choice and procurement of resources Member of Parliament William Development to disclose project in- count at the time of project selection,” relate to management of CDF funds awarded to various projects in the Omondi, and his committee should be formation including work plans, bill the IMF says in its 2008 Report on in accordance with Article 35(1) area. The report cited Mwiki Dandora investigated by the Kenya Anti Cor- of quantities, contractor agreements Observance of Standards and Codes Foot Bridge and Korogocho market ruption Commission to give a clear to allow accountability and transpar- (ROSC) for Kenya.