The Public Accounts Committee (PAC) The Public Investments Committee (PIC)

INTRODUCTION The title of this presentation could not have been more suitable. This is due to the fact that, in functional democracies, watchdog commi...
Author: Emerald Sanders
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INTRODUCTION The title of this presentation could not have been more suitable. This is due to the fact that, in functional democracies, watchdog committees and integrity institutions are by the very nature of their work, complementary organs of state. The glue that holds them together is their sacred duty to protect public finances and property, by ensuring that (i) the governed get just and fair returns from their investment in Government through the payment of taxes; (ii) all monies collected as part of national revenue are used for the delivery of services and the general promotion of the public good in accordance with established rules and procedures; (iii) all those who are entrusted with public office perform their duties in accordance with their Oath of Office; (iv) and finally, that those who engage in unethical activities are detected and punished in accordance with the law of the land. In Kenya today, there are many watchdog and integrity institutions which have been established over the years since the attainment of Independence. Some of these are the traditional oversight organs of government that trace their origin to the time when democracy finally triumphed over Monarchical Kleptocratic rule. Others are new and, like in the Kenyan situation, have been established to check on Government excesses and what is largely perceived as the complacency and ineffectiveness of the traditional institutions. In this regard, one can consider the following as the most “important” watchdog committees and integrity institutions: • The Public Accounts Committee (PAC) • The Public Investments Committee (PIC)

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• The Office of the Controller and Auditor General • The Efficiency Monitoring Unit (EMU) • The Kenya Anti-Corruption Commission (KACC) • The Kenya National Human Rights Commission (KNHRC) The list could even become longer as the country’s democracy continues to grow and the citizens become more vigilant over their rights. For purposes of this workshop I propose to address the complementary roles of PAC and PIC and the Kenya Anti-Corruption Commission (KACC) in the fight against corruption.

The Rationale of Complementarity Both the PAC and PIC are Committees established by Parliament to perform oversight functions over Government expenditure and investments. They are parliamentary committees in that they are constituted solely and entirely by Members of Parliament.

They are in fact some of the most important

committees of parliament if not the most important. The PAC has the onerous responsibility of checking and overseeing Government expenditure in all public institutions i.e. ministries, departments and related agencies; while the PIC has an equally daunting task of overseeing public expenditure in State Corporations. Although Government has in place well-established procedures and mechanisms of how to commit and disburse public finances, it is no secret that these have been observed in their flouting rather than in the adherence to

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them. The consequences have been catastrophic to the economy and the lives of the people. Some of the most horrendous plunders of public finances have been witnessed in the government ministries and state corporations. This just goes to strengthen the need for checks and balances in the collection, management and application of public finances. This is one area where the Government has not been able to effectively police itself. It is no wonder that other institutions of governance both within and outside government are increasingly being looked upon by members of the public as necessary complements to the existing inspection and oversight machinery over government expenditure. The two Parliamentary Watchdog Committees are therefore absolutely crucial in the fight against corruption because they derive their mandate directly from the people in whose name and for whose interest they speak and act. When the committees speak, the whole of parliament speaks. The committees are clothed with parliamentary authority to require information from any government official regarding any matter under investigation. This puts them in good stead to access information expeditiously before it is tampered with. This is an advantage that other integrity institutions may not readily enjoy. In carrying out their mandate, the committees no doubt rely on other sources of information especially the Reports from the office of the Controller and Auditor General.

The recommendations made by the Committees should

ideally form the basis for corrective action by Government. I use the word “ideally” because, in practice, it has not always been the fact that the recommendations by the Committees have been acted upon. This can be explained by a number of factors:

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 There was a time especially during the one party era, when these committees were too complacent to pose any serious challenge to the Government’s hegemony over public finances.

At one time the

committees were not as active as one would have expected until their rejuvenation after the 1992 multiparty general elections.  After their revival, the two committees embarked upon their tasks robustly. However, many of their recommendations were not acted upon due to the deep-seated suspicions if not outright hostility between the ruling party and the opposition. There appears to have been a prevalent opinion in Government that these committees were tools of the opposition out to destabilize the Government. On a number of occasions, the committee membership became partisan and lost sight of their sacred duty to act and report on behalf of the Kenyan People irrespective of party affiliations.  As currently constituted, the two committees must draw from the expertise within their membership. It is expected that the Reports so tabled would if adopted by the House, form the basis of further action against those mentioned therein.

In reality however, these reports

sometimes fall short of the required standards to sustain on immediate consequential prosecution against the named individuals. This should not be surprising because as I have already indicated, the committees may not have all the expertise needed to mount professional investigations into all matters that are brought to their attention and the

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committees were never envisaged as substitutes for the professional investigative agencies of the state. The scenarios described above bring to the fore the reasons as to why KACC and the PAC and PIC should play complementary roles in the fight against corruption in the country. THE LEGAL BASIS FOR COMPLEMENTARITY BETWEEN KACC, PAC AND PIC The basis for playing complementary roles between KACC and the two parliamentary committees lies in the fact that all the three institutions are mandated by law and parliamentary standing orders respectively, to inquire into all forms of impropriety involving public officers with regard to public finances and property. On the one hand, both PAC and PIC are supposed to conduct comprehensive inquiries into how public officers have dealt with public finances and to make recommendations for corrective action. The corrective action will more often than not involve some form of criminal or civil proceedings against a past or present officer. On its part, the Anti-Corruption Commission is empowered to inter alia  Investigate any matter that, in the Commission’s opinion, raises suspicion that conduct constituting corruption or economic crime has occurred or is about to occur.

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 Investigate the conduct of any person that, in the opinion of the Commission, is conducive to corruption or economic crime.  Assist any law enforcement agency of Kenya in the investigation of corruption or economic crime.  Institute civil proceedings against any person for the recovery of public property, which has been corruptly acquired. It is therefore clear that the roles that the three institutions are supposed to play are complementary. They call for cooperation between them and other organs if the fight against corruption is to be won.

The Anti-Corruption and

Economic Crimes Act, which establishes KACC specifically obliges the Commission to work together with other integrity institutions and committees. The Act requires the Commission to:  Investigate a matter if the National Assembly, the Minister or the Attorney General so requests, or on its own motion [Sec. 7 (2)].  Work in cooperation with any other persons or bodies it may think appropriate, and to require such person or bodies to afford it every cooperation. [Sec.12 (1)]. Subsection 2 provides that such persons include the Controller and Auditor General and the Director of the Criminal Investigations Department.

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AVENUES OF COMPLEMENTARITY On the basis of the legal provisions quoted above, it is clear that the requirement for KACC and Parliament (through its committees) to complement one another in the fight against graft is anchored in law. The requirement is neither a “gentleman’s agreement” nor an “exercise in institutional protocol.” This being the case, it is now time to consider some of the areas in which the Commission and the two Committees could collaborate so as to make the war against corruption more effective. Information Gathering and Investigations One area in which cooperation between the three institutions immediately comes to mind is the twin exercise of information gathering and investigations. I had earlier in my remarks alluded to the fact that both PAC and PIC may in certain cases be in a better position to access relevant information than other integrity institutions. Where this happens, it would be critically important that these committees share such information almost immediately with the Commission.

This is necessary where the committees discover that the

information before them reveals a likelihood of corruption or an economic crime.

Many of the cases that the committees handle involve complex

transactions and dealings warranting expert investigations. While the Kenyan Parliament is no doubt endowed with highly qualified legislators, it may not always have members with the necessary skill and expertise to unravel complex and long drawn cases of corruption within a short time. The Commission on the other hand is a full time professional agency

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capable of carrying out comprehensive and expert investigations into any matter that smacks of corruption.

Such professional investigations are

supposed to yield cogent evidence, which can sustain a prosecution of the “culprits” by the Attorney General. The necessity for cooperation between the Commission and the Parliamentary Committees in this regard cannot therefore be over estimated. The Commission will cooperate with the PAC and PIC to the extent necessary for the better carrying out of its mandate. It is expected that the parliamentary committee on Legal Affairs and the Administration of Justice will scrutinize the Commission’s Reports, which the latter is obliged to submit to the Attorney General for tabling before parliament. The Commission will always be ready and willing to investigate any matter brought to its attention by the two committees or any other committee of parliament. CONCLUSION Because of the threat that corruption poses to the national economy and future prosperity of the country, the need for Parliament and other organs of Government to collaborate in this fight is paramount. Suspicions based on political differences or perceptions of such differences should not be allowed to interfere with our sacred duty to serve the Kenyan People with dedication and impartiality. It is only by acting professionally and patriotically in the fight against corruption that both Parliament and the Executive will inspire public confidence in our ability to eradicate this monster. I thank you for your patient hearing.

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