The standoff at Kenya’s Youth Fund does not serve the youth

On Wednesday 21st October 2009, the Minister of Youth Affairs and Sports, Hon. Prof. Hellen Sambili reinstated the Youth Enterprise Development Fund’s former CEO Mr. Umuro Wario, after a - yet to be made public - Kenya Anti Corruption Commission investigation report that cleared Mr. Wario of any criminal culpability in his activities prior to his suspension and subsequent termination by the Youth Fund’s Board.

In June 2009, the Partnership for Change released a report (published here on this blog) questioning the true reasons for Mr. Wario’s dismissal from the fund, in addition to queries concerning:

• Single sourcing of contracts prior to and during Mr. Wario’s tenure as CEO.
• The contentious partnership with Enablis East Africa, that Mr. Wario himself claimed was the main reason behind his termination, and
• The corporate governance structure of the Youth Fund's Board with regards to conflicts of interests among named members.

So far the Youth Fund’s Board has not deigned to acknowledge nor respond to the questions, despite the Partnership posing the queries not only in the mainstream media but in youth forums. As Yipe.org’s work is focused on the youth entrepreneurs, we too tried to ask questions when given the opportunity, only to be met with the response that our enquiries lacked any substance, and were based on fallacious reports.

As a result of the Fund's deafening silence, sadly we have become fully aware that the Youth Fund’s Board is only interested in retaining full and complete control over this most important national fund; so much so that the Board will go to any lengths (at whatever cost and detriment to its reaching the 3 million of unemployed youth that require it’s assistance) to ensure that Mr. Wario is not allowed back into the Fund’s secretariat.

To spend in the range of millions of precious Kenya shillings  to reiterate what has been roundly publicized on our television screens and radios to endear Kenyans to their point of view, has exposed the high handed attitude by the Youth Fund’s Board. Why run to the media now, when in June 2009 the Board fronted by the Chairperson disparaged the same media as being in cahoots with political enemies?

Nevertheless, the Youth Fund’s public statement and extract of the auditors investigation published on Wednesday October 28th, brings onto the fore further questions. 

On reading the two page - full colour advertisements* placed in yesterdays Daily Nation and Standard newspapers, it is indeed stupendous that the Kenya Anti Corruption Commission (KACC) exonerated Mr. Wario if the Commission’s investigators were aware of the damning evidence of the State Corporation Inspectorate’s office outlined in the published extract. Surely the KACC investigations would have involved interviewing the Fund’s staff and Board members in addition to the State Inspectorate?

The Youth Fund's Board has stated that it never referred Mr. Wario’s case to the KACC, though in their published statement released yesterday, Mr. Wario is guilty of a wide range of derelictions and/or omissions of duty that would have landed any other public officer in an interrogation room at Integrity House. Yet the Board was benevolent enough to not forward Mr. Wario’s case to the KACC even as they accused him of mismanagement of funds and assets.

Indeed the extract from the report by the Inspectorate of State Corporations confirms the Board’s allegations of gross violations that are in contravention of both the Anti-Corruption Economic Crimes Act 2003, as well as the Public Officers Ethics Act.

1.    The Anti-Corruption and Economic Crimes Act, 2003 (ACECA)

The Youth Fund by virtue of being a State Corporation is a public body as per the 2003 Act; and Mr. Wario by virtue of his employment at the Youth Enterprise Development Fund fell into the category of a public officer.

The Act defines corruption as including abuse of office or breach of trust. Mr. Wario’s disregard for financial and recruitment procedures (concern #4), attempted diversion of funds without adherence to due process (concern #6) and non-transparent use of financial resources (concern #8) would have surely made him culpable of being charged with corruption.

Furthermore, Mr. Wario’s acts regarding procurement outlined in the advertisement are in breach of the ACECA 2003 s. 45(2), which states that:

(2) An officer or person whose functions concern the administration, custody, management, receipt or use of any part of the public revenue or public property is guilty of an offence if the person —
 (b) wilfully or carelessly fails to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures.

According to concern #5 of the extract from the report by the Inspectorate of State Corporations, Mr. Wario was guilty of flouting established procurement rules, and as such is liable under ACECA s. 45(2)(b).

2.     The Public Officer Ethics Act, 2003. (POEA)


Under the POEA 2003, Mr. Wario flouted s. 8 which states that:

8. A public officer shall, to the best of his ability, carry out his duties and ensure that the services that he provides are provided efficiently and honestly.

According to the published extract of the Inspectorate’s report, Mr. Wario was guilty of insubordination (concern #1), had a dismal performance in discharging his duties (concern #2) and lacked strategic direction and execution (concern #3).

This raises the following questions:

• Why did the YEDF Board not forward Mr. Wario’s case to the KACC seeing that in their paid advertisement they claim that he is responsible for the loss or mismanagement of tax payer funds? This points to the Board’s failure in stewardship of public funds and accountability not only to the Exchequer, but to all Kenyan taxpayers and most importantly to the nation’s youth entrepreneurs.
• The KACC should also answer how it found Mr. Wario not culpable in the face of the damning report by the Inspectorate of State Corporations. If the Commission was diligent in its duties, surely it would have discovered the report; or have they investigated the report and subsequently dismissed it?

However one cuts it, due process of the law must and should be followed. Instead of publishing expensive advertisements in the local dailies, the YEDF should press for Mr. Wario being charged and if guilty convicted under ACECA.

Justice can still be done. Under ACECA 2003, the YEDF can now forward their evidence to the KACC which stipulates penalties under  section 48:

48. (1) A person convicted of an offence under this Part shall be liable to —
(a) a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both

Section 35(4) of the Act further allows the Board to pursue Mr. Wario even after they terminated his services, which is what any steward of public resources would have done.

Mr. Wario can only be judged in a court of law and not in the public court. To spend money that COULD and SHOULD have been used to empower young business people, only makes the Youth Fund look just like what they accuse Youth Minister Hellen Sambili of – acting with impunity!

Read the Youth Fund Board's statement

* A phone call to the Daily Nation this afternoon quoted Kshs. 437,000 per full colour full page. Advertisements were also placed in the Standard thus costing approximately 1.5 million shillings. Such a sum could have been invested at Kshs. 50,000 per venture in 30 youth owned enterprises

Kenya's youth fund wrangles continue

Africa, Yes YOU Can!

Security and accountability are free public goods!

Public goods are those that are non-rivaled and non-excludable. This means, respectively that consumption of the good by one individual does not reduce availability of the good for consumption by others; and that no one can be effectively excluded from using the good. Due to the fact that the use by paying and non-paying consumers cannot be controlled, governments have to step in to ensure provision of such social goods. In turn tax monies go towards enabling governments to provide these social services.

Internal security is one such public good that falls to governments to provide to citizens. Though private sector security companies complement government security, they are constrained in providing this service for all as they do not enjoy economies of scale on the one hand and also to provide security for all is not economically viable in terms of ensuring that all consumers pay for such services.

According to Paul Collier writing in an article titled “Development in Dangerous Places” another public good is accountability. Historically, rulers needed revenue for their armies, which in turn provoked pressure for accountability and good governance from the taxpayers. Ultimately, security and accountability to Collier are not just public goods but expressions of power.

In countries of Collier’s Bottom Billion however, social divisions reign supreme. This lack of national cohesiveness in turn makes it more difficult to provide public goods. For instance, the 2008 post-election violence in Kenya aptly demonstrated the weak bonding of nationhood where tribes hacked one another with machetes and arrows causing the nation’s internal security to run down the doldrums. Kenya, fortunately or unfortunately has in its independence not had to face a massive external threat from an external aggressor which would galvanise its more than 40 tribes into a feeling of being Kenyan against foreign attackers. The Somalia and Ethiopian border squabbles never even reached such a point because the Kenya is home to sub-tribes of both nations. And even the most recent Migingo Island squabbles, were over a piece of land that hosts more Kenyans than Ugandans.

This lack of social cohesion breeds numerous self-identities and cultures which clash, and not without blood being poured. What is left is a fragmented population, where for instance the hint that Luis Moreno-Ocampo intends to prosecute crimes against humanity, send politicians into a tizz, whipping up ethnic hatred at the drop of a hat.

The second weapon politicians use is to invoke the concept of sovereignty forgetting that sovereignty requires a sense of nationhood; something that they themselves have to ensure is muted, so as to contain groupings calling for accountability.

Collier even names the weakened status of the military in bottom billion countries as a tool used by the political elite to retain power. It is this same military that presides over hurried swearing in ceremonies of tin-pot dictators when they steal elections overnight. And it is this same military that terrorises the masses to accept these “democratic election results”. But, it is this same military that must remain toothless in order for unpopular leaders to survive.

During the Migingo saga, many Kenyans commented that a small military battalion should invade the one acre island to shut Museveni up. But Kenyans were told that diplomacy was the way to go, even after President Museveni himself insulted Kenyans and more specifically members of the Luo tribe, from whom the Prime Minister Raila Odinga originates.

This was not the first time Uganda’s army had tried to stray onto Kenya’s territory. In the Moi era, and indeed during Jomo Kenyatta’s reign, Uganda insurgencies were swiftly turned back, and it was common to find the borders being closed as a matter of national security. However, probably as a good neighbour Kenya has turned to diplomacy as its weapon of mass destruction. This in turn has also led to the proliferation of small arms which have intensified a heightened scare amongst citizens for their personal safety.

The impact on business

Providing a safe environment where firms can conduct their business is a key function of any government. Yet, around the world, as many as 15% of firms report losses due to crime. In spite of this, a much higher share of firms (almost 60%) protect themselves from theft by using private security services, which adds to the cost of doing business. Interestingly, 16% of African firms report losses due to crime, at par with Eastern Europe and Central Asia. However, over half of the African businesses employ private security firms. Consequently, African firms spend an unrivalled amount of money on security, equal to over half a percentage point of sales, which is considerably higher than East Asia or South Asia.

The Africa Competitiveness Report 2009 (ACR) shows that most of the competitive disadvantage of African firms is due to invisible costs—that is, losses experienced by factors that include corruption (non-accountability) and lack of security.

The business costs of crime and violence and the sense that the police are unable to provide protection from crime are particular concerns for African entrepreneurs. The ACR disaggregates security into costs of terrorism, crime and violence, organized crime and the perceived reliability of police services. Amongst the survey’s findings Morocco’s weakening security environment was found to contribute to the country’s declining competitive position. The security situation in Kenya is also extremely worrisome, particularly in crime and violence, the potential of terrorism, and the prevalence of organized crime.

Unfortunately for small enterprise, there is no significant difference in the cost of security services borne by small firms compared to medium and large ones (in terms of share of sales), nor is there a difference between foreign and domestic firms. Africa’s export potential is further impaired as local exporters tend to spend more (almost 10% more) than non exporters.

In Africa, individual country’s competitiveness is also adversely affected by the lack of security. For instance, Egypt one of Kenya’s major competitors has relatively high levels of security and a resulting low cost of crime and violence for business. In terms of interest from foreign investors to set up businesses in Africa, security makes many shy away from putting their cash in jeopardy in unsecure environments. Mauritius has been able to exploit insecurity on the continent, benefiting from significant inflows of FDI over the past years in part due to the fact that the level of security in the country is good, particularly by regional standards.

Within East Africa, Kenyan 75% of firms have to pay for private security services. This is 5% higher than the regional average. Kenya also pays the highest cost for these services. In turn government accountability data in East Africa indicates that government wastage of resources is highest in Kenya and the country also has the highest perception amongst its business community that the police are unreliable.

Security and accountability are two public goods that make economic development and growth possible. History has provided more than adequate testimony that civil conflicts in poor countries last longer than international wars. With such a looming dagger hanging over these countries, unless security and accountability to address wrongs are provided (not at cost!), the interest of entrepreneurs to venture into business will be lost. Somalia is a prime example of this where revenues generated from enterprise (whether legal or through illegal means such as piracy) are stashed away in foreign countries, further plundering the country into a failed status.

Finally as Collier states accountability is indeed a two way street between government and citizens. Thus standing up to demand security and accountability is required of us all in the democratic spirit of no taxation without representation!

Accountability at last!

After the tabling and debate of the report by the Joint Parliamentary Committee investigating discrepancies in the Supplementary Budget, Parliament moved that the Supplementary Budget should be withdrawn and a forensic audit to be conducted.

Below is a message from the Partnership for Change who assisted in exposing the said inconsistencies, which at last count totalled Kshs. 10.7 billion.

===================================================================================
The Partnership for Change Report on Phase 1 of the Budget 2009 Campaign to save Public Resources for Agenda 4 of the National Accord.

The Partnership for Change is asking you to help us to campaign and encourage Kenyans to demand austerity measures and savings to be made in the June 2009 National Budget, by Government and Parliament. Money saved will be directed to the Development Budget. The Outcome will be to save approximately 200 Billion shillings, which if allocated to the Development Budget, will contribute enormously to Agenda 4 issues of the National Accord, such as unemployment, underdevelopment, starvation, food insecurity and impunity.

The Campaign entered its first phase with scrutiny of the Supplementary Budget. It is envisaged that we will save at the very minimum 10.7 Billion that is concealed in the Supplementary Budget. Further we anticipate that a forensic audit into the Supplementary Budget will also identify waste. Yesterday 13th May 2009 the Report Of The Joint Committees On Finance Planning And Trade and The Budget Committee On The Inconsistencies Contained In The Supplementary Estimates Of The Financial Year 2008/2009 was tabled in Parliament and was adopted by the House.

The Joint Committee Recommended that:
1. Since there are inconsistencies in the Supplementary Estimates, they should be withdrawn and correct estimates resubmitted.
2. An independent forensic Audit be done
3. The fiscal Management Bill be approved and enacted as a matter of urgency

The Partnership for Change is grateful to Hon. Gitobu Imanyara, and Hon. Paul Muite SC who availed invaluable time, advise and support at no cost whatsoever to the Citizens of Kenya, and with no partisan interest, helped us focus Parliament on their duty to those they represent. Our gratitude also to the Speaker of the National Assembly Hon. Kenneth Marende, who has been fair and just.

Finally to those Members of Parliament who sat in the Joint Committee and promised Citizens that they would exercise their oversight role and do the just and right thing. We achieved all our recommendations to the Committee in our submission to Parliament including odious debt such as Ken Ren, which you will see in the report of the Committee. We did not manage to obtain an apology from the Minister Of Finance to patriotic Kenyans that were are only doing their duty, but the Partnership for Change has been commended by both Chairs of the Joint Committee. Either way we are grateful to Parliament for doing their duty and in particular to our request that this matter should not adopt a political nature as public resources are serious matters.

The campaign will now move into its second phase as we advocate for 60% development budget allocations in the National Budget to be brought to Parliament in June 2009.

Read Full Report at http://blog.marsgroupkenya.org/?p=814

Business activism: Positively transform Kenya with the 2009 Budget Campaign

As any entrepreneur knows, business in the current economic climate is becoming well-nigh impossible.

With inflation adversely impacting raw material and final product prices, instability as a result of political bickering, a tax regime that places punitive impositions on micro-enterprises as well as dwindling consumer purchasing power, Kenyan small business enterprises are now under threat.

A few weeks ago on this blog, we decried the fact that the way the government to which we pay taxes was spendthrift, positing that if it were a business, it would have collapsed ages ago.

Well the season of the National Budget has come upon us again. And this time we can make our representatives to parliament more accountable by ensuring that government expenditure provisions reflect the will of the people of Kenya.

As the accountability portal Mars Group and the Partnership for change point out:

“The National Budget as presently constituted is enmeshed in corrupt and wasteful expenditure and there is need for Kenyans to educate each other on this so that we can pressure our representatives to scrutinize the budget to identify such expenditure. Savings can be used to boost development expenditure.”

As entrepreneurs are the main drivers of the economy, we should be in the fore-front of such an initiative. For instance we can demand accountability from our parliamentary representatives on the following:

• A reduction in the size of the Government of Kenya via the enactment of a statute pursuant to section 16 of the Constitution to cap the number of Executive Cabinet Ministries; and the need for integrity criteria for public service.

• A reduction of the recurrent expenditure of Government and the setting of ceilings on recurrent expenditure.

• Demand for full accountability and transparency in the External Public Debt Register which records all debts incurred by the Government of Kenya with international multi-lateral, bi-lateral and commercial creditors.

Apart from contacting your MP, you can also write a letter to the Commissioner General of the Kenya Revenue Authority (either when making payments or not) to register your displeasure that you are fulfilling your business obligations, albeit to a government that does not manage its resources responsibly.

Or, you can join the Partnership for Change 2009 Budget campaign to mobilize public support so that the Government of Kenya becomes accountable and transparent in the borrowing and implementation of the funds it collects from the public in taxes.

This time the onus is on us entrepreneurs to make the change we wish to see in Kenya today.

Update: read Kachwanya's take on the upcoming Budget in "A Letter That Finance Minister will never read".

Accountability: its about time!

This week Nigerian Agency for Food and Drug Administration and Control (NAFDAC) drug regulators announced they arrested 12 people in connection with the poisoning of 111 babies with a tainted teething medicine. If convicted NAFDAC says the 12 face upto 15 years behind bars or a US$ 3,500 fine.

The teething gel, ironically called "My Pikin" (my baby in pidgin) which contained a chemical substance, diethylene glycol that is commonly used as engine coolant, has already claimed 84 children’s lives.

On this side of the continent, impunity seems to be the name of the game as exhibited in the “trashed” report on defunct Nyaga Stockbrokers. By far in its time one of the more popular stockbrokers (as evidenced by long queues outside its Nation House headquarters in Nairobi), the report outlines a long standing fraud by the brokerage firm on unsuspecting investor clients.

Yesterday’s editorial in the Business Daily also pointed to further collusion in not pursuing the fraud. The paper’s journalists, as reported in the editorial, were dissuaded from investigating the Nyaga forensic report by industry insiders on the pretext that reporting on the Nyaga Stockbroker report “would erode investor confidence in the stock market”.

“Many sources talked to in the run-up to publication of our report on the Nyaga Stockbrokers fraud on Tuesday have, for instance, suggested that we should not carry the story for the simple reason that it would erode investor confidence in the stock market.

In these people’s world, stealing investors’ money, forgery, and engagement in illegal activities such as margin trading do not have any impact on investor confidence so long as the victims do not find out that they are being fleeced.” - Editorial: Investors deserve better than a landscape of fraud and graft, Business Daily, February 11, 2009

This burying of heads in the sand for the sake of keeping things “sawa” is what has led to the perpetuation of fraud and impunity in our society. When regulators and colleagues in the brokerage industry collude to hide evidence of fraud from the public, in the mistaken belief that “confidence” is at stake - of course it is at stake!

To allow the unsuspecting public to continue to invest in shams, when one knows the real story behind them, makes the abettor just as liable as the fraudster themselves.

As for the Capital Markets Authority where some of their officers did report anomalies in Nyaga and where nothing was done for five years, it is beyond comprehension how they have been allowed to sit on the forensic report since the end of last year on the pretext that they have to ensure its veracity! With such a slow pace in holding the fraud masterminds to account, it is such actions that do lead to “low investor confidence”. If our money will not be protected by the CMA who have dragged their feet in holding the wrongdoers to account, then why even be surprised when IPO’s such as Co-operative only subscribe upto 70%?

To know and not to do is not to know

Just yesterday in the UK, ex-HBOS bank chief Sir James Crosby quit as deputy director of the Financial Services Authority, after a memo was produced suggesting he’d sacked his head of risk back in 2005 for suggesting the bank’s strategy was too risky.

In China, 2 dairy company executives were sentenced to death, whilst the company’s board chairperson will spend the rest of her life behind bars for selling milk contaminated with melamine.

Nigeria has also started proceedings against the “My Pickin” poisoning culprits.

In Kenya, financial fraud scams have not taken any lives as yet. However, if we allow the Nyaga report to go unaccounted for, then we fully deserve to be scammed by the next Bernie Madoff that crosses our path!

Now, TODAY is the time to demand accountability – from our brokers, the regulators, our leaders, our managers, our employees, our friends, our family, and most importantly ourselves.