CONSTITUTION OF KENYA REVIEW COMMISSION
(CKRC)
Verbatim Report Of
PRESENTATION BY INSTITUTE OF CERTIFIED PUBLIC
ACCOUNTANTS OF KENYA (ICPAK), CKRC BOARDROOM, 2ND
FLOOR, KENCOM HOUSE
ON
8TH MARCY 2002
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VERBATIM REPORT OF PRESENTATION BY INSTITUTE OF CERTIFIED
ACOUNTANTS OF KENYA, CKRC BOARDROOM, 2ND FLOOR, KENCOM HOUSE
ON 8TH MARCH 2002
Present:
Prof. Yash Pal Ghai
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Chairman
Prof. Ooki-Ooko Ombaka
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1st Vice Chairman
P.L.O. Lumumba
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Secretary
Mr. Isaac Lenaola
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Commissioner
Mr. Isaack Hassan
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Mr. Riunga Raiji
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Mr. Abubakar Zein Abubakar
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Prof. Idha Salim
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Mr. Ibrahim Lethome
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Mr. Domiziano Ratanya
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Ms. Nancy Baraza
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Miss Kavetsa Adagala
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Prof. Okoth- Ogendo
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Mr. Nunow
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Bishop Bernard Njoroge
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Mr. Keriako Tobiko
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Prof. Yash Ghai: Meeting this morning just for one presentation held by the Institute of
Certified Accountants of Kenya. We are very pleased to have you with us. We know you had an
important conference two weeks ago devoted to the new process and we are now looking
forward to receiving the results of the liberations.
The format that we use for these meetings is that if you present to have written information we
ask presenters to just highlight the main points of the summation orally and we salute the rest of
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the summation later on and then commissioners may want to seek clarification of the points that
were very hard to understand. We’ll only allow 15 minutes for presentations of the main
highlights. We have another meeting at eleven -----. So we would aim to finish this meeting
shortly before ten. Now I invite Mr. Njirani. I don’t know who is going to make the presentation
on your behalf. After the presentation, all the members of the delegation who want to add to the
presentation are welcome to do so. May I now welcome you to make up your presentation.
Thank you.
Mr. Michael Waweru: Thank you Mr. chairman. My name is Michael Mr. Michael Waweru.
I’m the Chairman of the Institute of Certified Public Accountant of Kenya. If you will give me a
minute I’ll just introduce the members of council who are present. Starting with Mr. Charles
Shiego, Mr. John Ndiraini, who is the chief Executive, Mr. Jactone. I’ll go back to it. Mr.
Gichohi, Steve Lugaria and Jackson Maingi. Our presentations are based on the results of
liberations among our members at the Constitutional Review Conference that took place at the
Kenya School Of Monetary Studies on the 14th to 15th of February 2002, every year the Institute
has a symposium which is normally dedicated to discussing the presentations of what we would
like the Minister for Finance to include in his budget. But this year the Institute, decided that the
single most important thing happening in our country is the Constitutional Review and we
thought we would give our members an opportunity to give the council their views so that
council can then present this views to you people.
We ask prominent people to talk to us we invited the Chairman of the Commission and several
other people to talk to us and then in the second day of our symposium we constituted ourselves
into a Constitutional conference which came up with the views that we are going to present. We
have an Executive summary which I’m going to go through very quickly and then we leave you
with the more detailed report. The main proposals and I think we better start with the proposals
that we think we are competent in talking about as accountants at the financial governance.
We are asking that Government expenditure proposals be published and debated by the public
prior to the presentation in Parliament. This demands an expansion of the consultation process
which already started with the poverty reduction strategy process and draft expenditure proposals
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ought to be made public for discussions by every body 60 days before being presented in
Parliament. We are also suggesting that revenue and taxation proposals should not become
effective before Parliament has enacted it into law. We suggest that the budgetary proposals take
effect six months later ie 1st January or 1st July depending on the physical year.
Government should account for the past years’ expenditure against the budget before Parliament
debate budgetary proposals in the coming year. Quorum for debating and passing the budget
should be raised to a level where a cross the boards support becomes necessary in order to ensure
that the majority of Members of Parliament is in support of Government expenditure programes.
The Constitution should establish a tax payers bill of rights enabling the tax payers to challenge
the government on the levying of taxes when there is evidence of failure delivery of services or
failure to account properly.
There should be a predictable structure of Government ie the structure of ministries, a
department should be
spelt out through a legislation approved by Parliament. On matters
relating to accounting and auditing we are suggesting that there be separate Constitutional offices
for :Budget Controller to oversee the implementation of budget as approved by Parliament and to
provide account of actual verse as budget expenditure on rolling basis.
Auditor General: To audit expenditure and revenues of all government and state cooperations
and to provide report to Parliament on the extent of adherence to the regulations and procedures.
We are also asking the holders of these offices to be members of our Institute. The Auditor
General should be empowered to out source auditing and investigation services to audit private
sector providers if he doesn’t have enough people. The minimum professional qualifications
should be established for persons heading accounting and auditing functions in the public
service. We propose that they be required to be members of our Institute.
Economic crimes, that is the next topic. Officials in public service including Cabinet ministers
who release public funds for purposes not voted for by Parliament, of misappropriate or engage
in reckless spending of public funds or fail to ensure where it is within their mandate to do so
that public funds are used prudently for the purposes intended, or fail to provide an accurate
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account for public funds or to provide any other information required by an authority competent
to receive it, should be subjected to receive it should be subjected to a vote of no confidence in
the National Assembly. An officer who looses a vote of confidence in the National Assembly
should vacate that office within 30 days in addition to being liable to other penalties and other
laws.
We made other proposals which I’ll quickly go through but those are proposals that we think if
you want to look at them further, we will be available to discuss them further with you. we made
up proposals regarding Constitution amendment. The Constitution should be a contract between
Kenyans guiding Kenyans and their servants not governors. The contract should therefore not be
changed without approval of Kenyans through a referendum. Certain amendments may be made
through a direct vote in the National Assembly but this may not be done in any of the following
cases: Changes in the structure, term, powers and privileges of Parliament.
Changes in the structure, term, powers and privileges in the Office of the President or Vice
President. Changes of structure, term, powers and privileges of offices created under the
Constitution and changes in the bill of rights including the tax payers bill of rights. Amendment
in the Constitution should be passed by at least three quarters of the members of the National
Assembly.
On the presidency, we are suggesting that we retain the current Executive presidency with a
running mate. The President should be elected by majority vote minimum 51% of votes cast.
President should not be a member of Parliament and a President can be impeached. President
should get benefits on retirement if he is not engaged in active politics.
On Parliament we are saying that constituent should be empowered to call their MP where he
failed to perform. We are also saying that independent candidate should be allowed to stand.
Non- elective representation should constitute at least 40% of Parliament. In other words you see
in the detailed document we are saying 20% from professionals and another 20% from other
interest goods.
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Quorum for all business should be reached to 25% of al MPs and Parliamentary calendar should
be delinked from the Executive. On the Cabinet, we are proposing that the Cabinet and other
public appointment have a defined rank approved by Parliament. Cabinet members should not
have voting rights in Parliament and the Attorney General should not be a member of Cabinet. In
other words we are saying there should be a Minister of Justice and other matters and then the
Attorney General to be Public Prosecutor.
Decentralization: we don’t recommend regional government. However Local Authorities
governors and management structures should be enhanced be enhanced to make them more
accountable in their constituency. We think that upon un ultimate of the Constitution those
holding offices under the old Constitution should vacate their offices within their offices within
90 days to enable a new team to be assembled.
On the current Parliament, we say that the eighth Parliament should not be extended rather if you
ladies and gentlemen in this commission don’t finish your work on time, then we should consider
talking about minimum reforms and we have suggested areas which you can suggest minimum
reforms to enable the elections to be held and to enable the transition to take place.
Now on the general comment we wish to offer our expertise in fining some of the proposals we
have made to enable you to put them in the Constitution. That in summary is the
recommendation. Thank you very much.
Prof. Yash Pal Ghai: Well thank you very much for that presentation from you. I hope that you
have developed your views a little more in the paper and also to give us a discussion. When the
file pertaining the summation we will put it on the website definitely so that many more can have
access to the ideas. We now invite commissioners if they have any point that need clarification.
Yes Mr. Ratanya.
Com. Domiziano Ratanya: There is this point that may be you could clarify it properly. You
have said that members of Cabinet should not be allowed to vote. Now are you assuming that the
ministers should not be MPs. I didn’t get that point very well. I repeat again. Members of
Cabinet these are the ministers should not have right to vote. So I’m asking whether you assume
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that these should not be members of Parliament. I didn’t get that point very well. Can you please
clarify.
Mr. Michael Waweru: What I was saying is that.
Interjection: Could you please identify yourself because these proceedings are being recorded.
Mr. John Njiraini: My names are John Njiraini the chief Executive of the Institute. What we are
saying here is even if the Cabinet is not to be selected from among MPs because we may have
MPs who have the kind of qualities that would
(inaudible) to serve its members. As
Cabinet members, they shouldn’t vote on the matters that can be for Parliament because there are
some problems where somebody goes to vote for something that someone has always been part
of developing and most of what goes in Parliament is developed by Parliament. An ideal
situation would be probably be where we say that if somebody is elected to the Cabinet and he
was an MP then he automatically seizes to be a member of Parliament.
Com. Nunow: Mr. Michael Waweru you mentioned something on the retirement benefit on the
outgoing President. could you please let us know whether you have gone through some figures or
some aspect of such a package.
Mr. Michael Waweru: Thank you. we haven’t worked out the figures but we are offering
services in the tiny awards proposals for you and we can prepare that and submit it later.
Com. Nancy Baraza: Thank you Mr. Chairman. Mr. Michael Waweru thank you for your
presentation. In this country we have seen that there are several ways that the government has
been raising revenues. I don’t know whether you will consider them as a legitimate source of
revenue and if they can be subjected to the same accounting. Would you consider things like
harambee because that has been a very big source of revenue generation in this country for the
government. disposal of public land. I don’t know whether you would consider it as legitimate
sources of revenue but they should be done by government and if they should also be subjected
to the same accounting processes that you propose in your presentation.
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Mr. Michael Waweru: Thank you Mr. chairman. Yes we are aware of the various ways that the
government has raised money from Kenyans. First of all harambees should not be included into
the budget because they are community initiatives and they should be left like that. Instead of
government planning that schools should be built by harambees. Government should actually be
the one building the schools and providing their social amenities like hospitals, schools and all
that. If the community feels that they need to do something on their on the government should be
out of it.
On the disposal of public land: yes I think if it is necessary to dispose of public land there should
be similar source of revenue and a procedure should be established under the law where public
land would be disposed of and then the (inaudible) disposed of should be subject to audit and
enquiry to make sure that the procedure step has been followed and should be under the Auditor
General.
Com. Kavetsa Adagala: The other question I wanted to follow up with the harambee one is the
8-4-4 system. The schools were built by the parents. I believe sometimes it came to about two
billion, the extra classes. Is that the example you are giving of factoring into the budget. I don’t
know what two billion is right now but at that time, mid eighties isn’t it? Was a two billion.
Let me go on a little bit. I wish you could talk a little bit more about the referendum and what
else, Accountants considered should be taken to referendum so that wanainchi decide. Then there
is this question which has just occurred to me. May be it has also occurred to others. when you
say Parliament should not be extended is it for old times? Because every body keep saying it and
I don’t know if this incumbent Parliament which has draft people wrong or is it for old time that
Parliament should never be extended.
Also a question which has been bothering me is we always raise the level of income which does
not have to pat taxes. We went from three thousand to six thousand. I don’t know if now it is ten
thousand. You don’t have to pay taxes and of course wanainchi are very happy about it. But
there is the obligation also to pay taxes. What should we do? How should we change it around. I
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think you understand that one because it happens all the time. Then I’m just wandering some
examples from an accountant point of view, some projects which have not gone right either in
implementation or accounting on transparency.
Mr. Michael Waweru: Thank you. I think you are right when you mention 8-4-4. it was
initiated by the government but the funding was not expected to come from the partition
measures. It was the parents who were supposed to build classrooms to convert to 8-4-4. we have
not tried to prepare as a submission to react to the present situation but that is a very a good
example to where harambees have been factored into government expenditure and the same
people who are contributing to the harambees are also paying taxes. That is a very good example
of double taxation.
I will answer the next question on extension of Parliament then John, will answer the question on
referendum and I don’t know whether any other council member would like to tackle any one of
the other questions.
On extension of Parliament is this particular Parliament that we are saying that should not be
extended because particularly for Kenyans this particular Parliament on the next election, is
important because of transition. So we are saying that whatever you have to do make sure that
the Parliament is not extended so that the Constitution can continue if the process is going to take
longer. The Constitution is a document for prosperity. It does not have to be tallied to the life of
a Parliament. John will answer some of the questions and some of the council members would
like to tackle the others.
John Njirani: I think I also want to answer the question of the Parliament. One of the queries
they are making about the Parliament generally is that the term of Parliament among other things
should be one of those things that are not amended without public involvement. The whole point
is that Parliamentarians are employed by the public. We send them there so they cannot go there
and say that you sent us here for five years now we decide we want to stay here for seven years. -------(inaudible).
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Now that I lead to the questions we are talking about the referendum because what we are saying
is that generally speaking it would be best that if people write a contract between themselves and
they are servants, we are the word servants to emphasize on the people, who are in leadership.
They are not governors, they are servants. This contract should remain the way it was written. It
should not be (inaudible) by those people. Parliamentarians would sell their own servants. But
however, we do realize that there are certain situations in which they become extremely
cumbersome to have to go through a referendum to change a Constitution. There might be an
error or a minor thing that need to be done.
So what we are saying is that the Constitution should be amended through a direct vote in
Parliament except in those cases that we have stated there in this Executive summary that we
have circulated on the second page. We have are saying that the National Assembly may amend
the Constitution but it cannot do so in the following cases without a referendum.
There is a change in the structure, terms, powers or privileges of Parliament. Where there is a
change of structure, terms, powers or privileges of the office of the President or Vice President.
or where there is changes of structures, terms, powers or privileges the office created as the
Constitution for examples Judges, the AGs and so on. So those are the most critical institutions
of governors that we are setting up. We don’t want people to go back and say now look we don’t
like this now. We want to change it the people must agree to that.
The other important thing we are saying is the question of the bill of rights. Fundamental rights
of Kenya. Again changes in the bill of rights cannot be done without the involvement of the
public but then other aspects of the Constitution can be dealt with by the Parliament because
Parliament is a representation of the people. Those fundamental areas the public must be
consulted.
Bishop Bernard Njoroge: On page two,
to government expenditure proposals should be
established and debated by public prior to the tabling to Parliament. I just want to know whether
there is any country in the World that does that and what are the modalities in involving people
in debating and what is the outcome that you want from it. The reason I’m saying this is because
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of may be the reaction of what has been happening. We are pumping a lot on the people. Is it
going to make the work of the government cumbersome? I think we should be able to make
proposals not only look for what has been before but also expect that this can be run properly so
that in making proposals we do not come up with things that will make it very difficult for the
country to run.
Prof. Yash Pal Ghai: Let me also add on the related issue query. You have said in 211 (b) that
revenue taxation proposal should not be affected before Parliament make them into law and my
understanding has been that the law that allow the government to collecting revenues as soon as
the proposals are published is to ensure that people do not debate the new taxes or if you have
noted, what is going to be the sources of revenue and methods of taxations and it just gave the
public a chance to evade the levying of these taxes and so on. So I don’t know. Is that a big
problem? That has been my understanding always that there is most countries have a rule ------(inaudible) the proposals are published it becomes affected is the presentation of these taxation,
custom duties and so on by the public.
Mr. Michael Waweru: Thank you. there are countries where budget proposals are exposed to
the public for discussions and what we are suggesting is that 60 days before the budget is read in
Parliament. The general framework of the budgeter, we are going to raise money from these
form of tax, it doesn’t have to give the specific details so much money. We are going to raise
from this tax, this tax, so much money then people can debate that and even if you let people
debate taxation measures it would be easier to accept than if you come up with them, legislate
them and say they are effective.
I think we would be in a position to even advise the government on the practicalities on the
measures they are introducing if they are not practical. I’ll give you an example of VAT on rental
commercial property which was passed last year. If they had come to the public and told us we
intend to do this through VAT, they don’t have to talk about the rates. We are going to raise
VAT on commercial property, we would have advised them that was the wrong time to do that.
It is being done by other countries but not in a country where rates are coming down, people are
leaving the premises and the economy are depressed. So if these things are exposed to the public
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for discussions, in their generalities not in specific measures everybody can discuss them and to
them they would be in a position to alter those proposals in line with what is practical.
On the question of the budget not being effective, we are aware of what you are saying Mr.
chairman because if you are imposing tax say on beer and you say it would be effective from 1 st
January then we will buy before then and make sure we make gain. It still happen. Again we are
not talking about those specific measures like when you are raising a tax rate which is already in
existence. We are talking about taxation measures that are changing the overall structure. Those
need to be debated and become law. They should not be effective from midnight from the day of
the budget. John would like to add something.
John Njirani: Thank you very much for that point. I think this in fact happens. It is only that it
happens selectively. There are quite a lot of cases where government imposes tax and pass the
implementation of that measure by a field of time for example the VAT requirement was not
going to take effect until October although the budget was read in September. Pay As You Earn
for example don’t usually take, Pay As You Earn that is employees taxation usually does not
take place until January. So you find that there is selective use of some of these requirement.
Some come in effect immediately some don’t. I think the strongest point is for example what
happens in VAT. The government impose VAT without consultation. There is this letter which
was debated.
There was a lot of hue and cry from North Eastern community. Parliament threw out that
requirement. Now the problem is there are people who had already been taxed and that is
something that our Institute is discussing with Kenya Revenue Authority. Are you going to
refund this money because this law has been thrown out? So we are saying the most sensible
thing and it happened in some country. You said that you want to do this and that. Let it be
debated properly, let the law be enacted and start collecting your taxes. In the mean time you can
be collecting taxes on whatever other areas or at whatever other rates you are not changing. So it
is not going to affect the operation of the government.
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We just need to do things in a more organized manner. So the question of publishing expenditure
proposal like the chairman is saying. We are not saying that you publish the budget. We are
saying you publish the draft plans. Like it happens in Britain now. Publish the draft plan. Let
people start talking because when people start talking even their represented is when this budget
is put before them.
The MPs also have an idea of what the public thinking is. For example if the VAT proposals say
that next year we intend to raise money through a VAT tax for commercial rates. Then the
business community will say no this is the wrong time. You know the market is bad. We are
trying to do this and that. By the time nothing is put before the Parliament six days thereafter.
Parliament already have the mood of the public and then they will be saying no. I think this need
to be done and this is purely an extention of what is going on because the government has got
life of three years and have started what is called the “ the fears people” process where they are
going out to the public and asking the public what do you want us to do.
This is already happening even I think the minister was launching some reports two days ago.
We are saying just expand that process by being a little bit more instead of just going to ask
people what do you want us to do? Why don’t you also tell them but in the meantime as you tell
them what to do we are also thinking this way so that people then discuss one complete picture
and when this complete picture is put before Parliament then Parliament already knows what the
public thinking is.
Ezekiah Wang’ombe Gichohi: Thank you very much my name is Ezekiah Wang’ombe
Gichohi. I’m only going to comment on the tax draft as Pay As You Earn one is concerned
which had actually been raised by the member commission. The position here is that the tax
drafted has actually been urged to the government because the low income earners actually get
more taxed if we don’t actually increase the tax brackets. That is mainly the reason why we
encourage that there should be the tax brackets so that the poorly paid people, do not necessarily
get on being taxed. That is one of the reasons. The other reason why we also encourage is that
the higher the tax it is, the higher the rates that there are more difficult it is for the citizens to pay
the taxes. They don’t feel comfortable.
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For instance, we are talking about VAT at the rate of 18%. Are we not encouraging the people
not to be able to comply. For instance, we are also talking about VAT to be paid when the
services have been rendered and not necessarily when the money has actually been collected. Is
this going to be a practicable aspect? You do an assignment where you are not likely to be paid.
We are not on a cash economy. You do an assignment where you are not going to be paid the
money in the next six months, yet you are required to pay that money within the next 30 days.
Most of the business communities have gone around borrowing to a level that they have actually
gone into receivership and they have even left the liability of VAT and other taxes not in place.
So what we are saying and what we are recommending, is that these tax brackets should actually
come in to relieve the citizens from what they would not be getting.
The other thing we also saying here is that even in the citizen in looking at the Constitution, this
is on my personal view Mr. chairman we should also think about a welfare State. It is so
disheartening that you find so many people begging who are able to work and they don’t have a
way of getting their earnings. I would think that it is high time a country of our nature think of a
welfare State. This is outside the recommendation. Mr. chairman if you allow me just one minute
I would just mention one other issue.
The other issue is that I would ask the commissioners to look at the position of the Constitution
in the light of the only best Constitution that this country can have is that that God would bless. I
would have expected Mr. chairman to actually expect the Commissioners, to be starting their
sessions with a word of prayer. To beseech God because that is the only way a Constitution can
actually work perfectly. Everybody would come with recommendation Mr. Chairman but allow
me to say the best Constitution is that that God would like to have.
In the next part of it, is that I would also urge the Commissioners to look at ensuring that in this
country everybody learns the Constitution from the first class so that we don’t actually have to
have civil education at a much later stage or we don’t have to keep on talking about the
Constitution because for a number of five to six years now everybody is talking about the
Constitution. We would also urge in my own contribution thinking that the words that will open
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our Constitution will lead in a way that would say land of our birth we stretch to see so that every
single citizen knows clearly it is obligation to obey, to stay with and live with our Constitution.
Mr Chairman thank you very much.
Jackson Maingi: I can add something. My name is Jackson Maingi. I want to comment on
revenue taxation proposals not becoming effective before Parliament has enacted into law. A lot
has been said about that by both our chairman and Mr. Njiraini but you see when a proposal is
made, there are so many things that happen by a way of expending. Forms may be printed,
people may be trained to work in a certain way. So many people were affected in a way that
when it is not finally passed in to a law, a lot of money has already gone down the grave. And do
we want to keep wasting the little that we have when we are already living in a land of not that
perspective. So to avoid that situation of wasting so much money, man power and material, I
think we should think of deferring until Parliament has passed whatever views they are having to
law. Thank you.
Com. Idha Salim: Mr. chairman I would just like to seek clarification on 211(e), there is
reference to a tax payers bill of rights enabling the tax payers top challenge the government. I
just wandered whether the word government there include both central government and local
government.
If it only refers to…. It does? Very good. And then the second point Mr. chairman is the issue of
the Presidency. You said that the President should not be a member of Parliament. Can he be a
member of political party.
Mr. Michael Waweru: Yes he can be a member of political party.
Com. Idha Salim: Thank you.
Com. Kavesta Adagala: Mr. chairman just briefly. There is always some insinuation that are the
center of corruption. I’ll say this but you can moderate it for me Mr. chairman because I don’t
know how to say it very well. That the center of corruption is accountants. We have to deal in the
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Constitution we are going to get your recommendation on corruption. I’m not saying that you is
necessarily at the center of corruption but what should we do about it. Whether it is government
corruption or however it affects accounting and taxation. I know what you have proposed here is
so but I just want to find away in which we can connect it when we get recommendations on
corruption.
Mr. Michael Waweru: Thank you I think that statement at the center of corruption, there is an a
accountant. If probably it is true but I would be talking about accountant by referring to a
function rather than a member of the Institute or a qualified accountant. There will be somebody
who will be performing the function of an accountant but he does not have to be a member of the
Institute of Certified Public Accountant and in fact I think they are not more than 15 qualified
accountant in the government service.
The government requires and then duty proposals says that all financial function in government
should be headed by CPAs. Members of accountants who are registered with the Institute who
are our members. Then when we talk about accountant we would probably be referring to CPA
and when you talk about CPA he is our member and we can deal with him through the
disciplinary processes.
To explain further we have still several people who have been taken to court for corruption deals
either for parastals or even in private sector and when we check whether they are members we
find they are not our members. They may have that CPA up to a certain section they are not
registerable but they are holding positions of Chief Accountants or even finance manager or
they may have been our member and then they stopped being our members so they are outside
the disciplinary process.
Those who are members were believed to be involved in corruption, we are actually
investigating and we have been in the process of writing. We have written to those bodies like
PIC, Public Investment Committee and public account committee to give us details of corrupt
views that involve our member so we can then distribute disciplinary proceedings.
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Mr. John Njiraini: I want to comment on the question of corruption generally. Our own
experience about corruption, fraud, mismanagement in the private sector. The only through
defence against this is to have system that work and in the private sector we have systems that
work because there is independence, we have goals which are well empowered. We have
management which are accountable to the posts and we have a post that is accountable to the
share holder. This system works and people get fired if they don’t perform.
In the public sector in Kenya, what you see is a situation whereby people do (inaudible) that
would check the Executive because the only people who have a hold on the public money is the
Executive. So you need structure that would ensure that the Executive that is what it is supposed
to do. If it doesn’t do that then there are strict retributal measures. That is why we are suggesting
that as far as economic times is concerned, we give Parliament a law to be able to state power
away from the Executive because if the Executive is not disciplining his own people then
Parliament should be able to do that. That’s why we are saying that in 2.1 C (a) if an official in
the public service including a Cabinet Minister touch those things which are there, then
Parliament should subject him to a vote of confidence and if he looses that vote of no confidence
then there is no question about discussing this. Now one might say is the process fair? Is it ----------(inaudible).
Presumably Parliament is going to set up a process through which all these things are going to be
investigated and they have been doing it and have said some people do not hold public office.
But we are seeing those people holding public office. Why are they there? So I think this kind of
system can actually if serious discipline in terms of public officials. Actually this is something
that really need to be taken into account.
Now if that person is then unfairly dismissed let them go to court then the court can award the
damages for wrongful dismissal. I would rather we pay that kind of a price than to pay the price
of having people who have been engaged in this act still holding public office.
Com. Ratanya: Thank you very much Mr. Chairman. There is this point on Presidency 2.2 on
your memorandum. You have recommended that the President should not get retirement benefit
if he engages in active politics. Are we talking before the President retires or it is after
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retirement? Or if it is after retirement are we saying that the President in order to qualify for the
retiring benefits he should vacate or he should completely leave politics so that he may qualify
for the benefits?
Mr. Mr. Michael Waweru: We are talking about the President after leaving office so what we
are saying is that retirement should be retirement. Retirement should not be half retirement
Prof. Ghai: Thank you very much members of the Institute for your proposals and your
explanations. We look forward to reading the detailed proposals and we may come back to you.
you have very kindly offered to develop some of this proposals further and we may well come
back --------(inaudible). Thank you very much.
Mr. Michael Waweru: Thank you very much Mr. Chairman I’ll hand over to you now the
detailed proposals and we are going to provide a diskette of these proposals to the Secretary.
Thank you very much.
Prof. Yash Pal Ghai: Well with that we bring this meeting to an end we will begin our next
meting in about ten minutes so commissioners could please return their time. Thank you very
much.
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