Opinion: Why Kenyans deserve better from their MPs

The conduct and mandate of House committees has been a subject of concern among legislators and Kenyans at large. The conduct of members with regard to commenting on matters active before the courts, attendance and usurpation of meetings as “friends of committees”, “chasing of headlines” and cosying with witnesses portrayed the House in bad light.

Also, the existence of parallel investigations does not preclude the committees of the House from discharging their constitutional mandate.

Why we’re different

However, the manner in which the House and its committees carry out investigations is fundamentally different from the manner in which an agency such as the Directorate of Criminal Investigations (DCI), the Ethics and Anti-Corruption Commission (EACC) conducts investigations. The committees have no way of dictating the timelines applicable to investigations outside Parliament.

The Committees consider allowing either the Principal Secretary or a Senior Officer of the Ministry, to attend and respond to queries where the personal attendance of the Cabinet Secretary can be excused, save for examination of matters before the audit committees, where accounting officers must appear to respond to audit queries as required by law.

As a guardian of the public purse, it would be inimical of Parliament to turn a blind eye to the manner in which public monies that it voted are utilised by constitutional commissions and independent offices, and the Executive and its agencies.

Indeed, a Legislature which assumes the role of a bystander waiting to consume reports from other quarters before taking action, will, to say the least, be standing on quick sand.

In this regard, the House has an inherent investigatory mandate vested on its committee. A probe by the House in the public interest may unearth more information than an investigation by either of the two agencies in which a witness may be wary of self-incrimination.

The House can investigate on its own motion by seeking primary evidence, or rely on secondary evidence as do the Special Funds Accounts Committee, Public Investments Committee (PIC) and the Public Accounts Committee (PAC) with regard to audited reports submitted by the Office of the Auditor General.

For the newly created Special Funds Accounts Committee, it deals with the Equalization Fund; the political parties’ fund; the judiciary fund; the National Government Constituencies Development fund; and any other Fund established by law as the Speaker may direct.

Still, audit committees are not precluded from requesting the Auditor-General to undertake a special audit as and when the need arises to examine accounts of a public entity to ascertain whether or not monies are being managed according to sound financial principles.

This House has had occasion to conduct various inquiries in the public interest which culminated in evidence-based recommendations and formed the basis for prosecution of cited perpetrators.

Exceptions

It rests upon each committee to decide and resolve on the urgency of the inquiry they propose to undertake, but, where persons who are being investigated are charged in court and prosecution commences on the same matters that are before a committee, I see no use in the particular committee proceeding with the matter, unless there is new information different from those being prosecuted in court.

Members and Committees should conduct themselves while participating in the activities of the House in accordance with the Constitution and the Standing Orders.

Recalled, PAC of the previous Parliaments effectively investigated allegations of misuse of public funds that came to light in course of their work or examination of issues and upon guided preliminary inquiries, asked the Auditor-General to undertake special audits.

However, it is the special audit that ultimately became the basis of subsequent in-depth investigations. In my considered opinion, there exists no justification for deviating from this established practice.

For the effective conduct of inquiries, Chairpersons and Members are expected to accord these officers the opportunity to render their advice before the commencement and during hearings.

The investigatory power of the House is drawn directly from the authority granted by the people, who have unequivocally entrusted it with the role of appropriating public revenue, approving revenue-raising measures and exercising oversight over public expenditure.

When to stop an inquiry

Any inquiry that a Committee undertakes is structured with defined reporting timelines, including requirements for submission of progress reports. If an investigative agency is conducting a parallel investigation, and where prosecution has preferred charges on individuals of interest to the Committee on matters similar to those before it, the inquiry before the Committee should be suspended. Any further inquiry may only be proceeded with the leave of the Speaker.

Members should relate with persons appearing as witnesses before Committees at “arms-length”.

Members should also endeavour to avoid making any contacts with witnesses prior or during hearings.

As a rule, the House shall cater for all expenses relating to a matter under inquiry by a Committee. Any proposal by any organisation to co-fund a Committee activity should be treated with caution and if such arise and considered necessary, a request be directed to the Office of the Clerk for review and approval on a case-by-case basis.

The Chairperson of a Committee should determine the number ‘friends of the committee’ allowed to participate in a sitting at any given time, taking into account the available sitting space and convenience of the committee.

Also, a non-Committee Member may only speak with the permission of the Chairperson and any incident where they grossly misconducts themselves during a sitting, report to the Speaker for disciplinary action in the House.

Standing Order 86 prohibits premature reference to proceedings before committees and constitutes an act of gross disorderly conduct pursuant to Standing Order 107A(1)(i) attracting suspension or discharge from a Committee.

Mr Muturi is the National Assembly Speaker