Ambassador Muthaura has no Parliamentary Authority or powers to give Pauline Musyoka Ksh 400,000 per month (4.8 million per year) for her charities. Kenya’s Controller and Auditor General must exercise her constitutional powers to disallow the Muthaura gift and put an end to political patronage.
Illegal Charity:
A debate rages on in the Kenyan press with split opinion about whether Pauline Musyoka, wife of Kenya’s Vice President Kalonzo Musyoka, should have kept the Ksh 400,000 a month she was “offered” by the Head of the Public Service, Ambassador Muthaura as compensation for “wise counsel and guidance which contribute to the public good in the course of nation building activities, besides playing hostess during national and other official public engagements.”
Mrs. Musyoka has said she will after all accept the offer but give it away to several charities, unlike Mrs. Ida Odinga who sensibly refused a similar offer last week.
The problem Mrs. Musyoka will have, going forward, is that Ambassador Muthaura’s “offer” is, ipso facto, illegal and unconstitutional regardless of her charitable intentions. This illegality will remain unless and until a supplementary revised national budget is approved by Parliament. It is doubtful that Parliament would approve such expenditure if it was asked. This exposes her to surcharge and other embarrassment if the Controller and Auditor General reports adversely.
Patronage system:
Ambassador Muthaura’s gift unwittingly exposes a practice in Government of discretionary and arbitrary spending on the personal comfort of the families of high-ranking officials. Under Kenyan law, Mrs. Musyoka is not actually entitled to public funds as the Vice President’s wife per se. To complicate matters further, apparently Mrs. Musyoka already has a job at the Central Bank of Kenya.
Mrs. Musyoka is certainly not the only current beneficiary of such relational largesse. What is different this time around is purely a question of bad timing. If Kenyan taxpayers were not already so overburdened by the economic hardships resulting from the political crisis following the 2007 elections, the debate might have been far more muted as was the case last year when Ambassador Muthaura announced a pre-election gift of Ksh 500,000 per month to President Kibaki’s wife, Lucy Kibaki.
However, and unfortunately for Ambassador Muthaura, the implicit corruption in such glaring bureaucratic manipulations of public spending choices is clear. Over time, Kenya has developed a patronage system which transfers money from ordinary taxpayers to high income individuals ostensibly so that they can act as intermediaries in assisting the poor. The patronage gravy train culture is well engrained amongst Kenyan officialdom. The logic of spousal allowances of the type offered to Mrs. Musyoka is after all really no different from the argument Kenyan parliamentarians advanced last year when they voted themselves “severance pay” from public coffers. The worry is that the political patronage system has run wild – whether it can be stopped before the bank is completely bust is the only question yet to be answered.
Legal Position: Ambassador Muthaura is subject to the Law
No matter the justification (charitable purposes included) Kenyan law requires all Government of Kenya expenditure to be authorized by Parliament and to be specified in the National Budget. Mrs. Musyoka’s charity is not so authorized or specified – and certainly is not exempt from the legal strictures. Ambassador Muthaura presumably knows all this but for whatever reason has decided to quietly ride out the storm rather then correct a most obvious error of judgement of public opinion.
Legally, Ambassador Muthaura is skating on thin ice. It would not be going too far to say that in fact Ambassador Muthaura’s actions are illegal, unconstitutional and punishable by Kenyan laws. The Constitution is clear – Ambassador Muthaura the highest ranked civil servant is under a duty to ensure that he does not assume powers which are reserved to Parliament by rewriting the National Budget to insert unapproved expenditure into Government operations. If Parliament last June had wanted to give Mrs. Musyoka an allowance it would surely have done so. As far as the Government Financial Management Act of 2004 goes, Mr. Muthaura may find himself personally liable for any losses occasioned by his recent gift-giving.
Scrutiny of the entire 1517 pages of 2008/2009 Estimates of Recurrent Expenditure of the Government of Kenya for the Year ending 20th June 2009, and specifically the details of personal emoluments and other allowances, will not reveal any budget line item for allowances to the Vice President’s wife for any purpose. When the budget was tabled on June 12th 2008, the Minister of Finance did not ask Parliament for authority to withdraw from the Consolidated Fund an allowance for the spouse of the Vice President. If no parliamentary approval was sought, and no parliamentary approval was given, then many argue that it surely follows the pay offer by Mr. Muthaura is extra budgetary and illegal.
The Acting Minister of Finance, John Michuki, says he is unaware of how these payments are to be made. Given that Section 6(1) of the Government Financial Management Act 2004 says “no expenditure involving a charge on the Consolidated Fund shall be incurred without the general or specific Authority of the treasury” on what authority or with whose permission is Ambassador Muthaura directing these payments should be made? Few will argue that Kenyans are not entitled to an answer to this question; after all it is their tax money which is being used.
Whether he likes it or not Ambassador Muthaura is subject to Kenyan law. He is an accounting officer and therefore responsible to the Treasury to ensure that no expenditure is made unless it is “lawful, authorized, effective, efficient, economical and transparent.” So says Section 18 of the Government Financial Management Act.
Under the law, Ambassador Muthaura bears personal responsibility (or liability) for public funds misallocated under his charge. Section 33 of the Government Financial Management Act says that Government officers (which applies to Ambassador Muthaura) are “personally liable to the Government for any losses or damages occasioned” by their handling of public money.
Unless some assurance has been given that no consequences shall ensue, Ambassador Muthaura should pause and reconsider his decisions. The fact is that for what he has done, each year public officers are named and shamed by the Controller and Auditor General’s reports on the accounts of Government. Every year, some offending officers are surcharged for losses, disciplined and occasionally prosecuted. However, no-one of his rank has fallen foul of the law, yet.
Advice for Kalonzo Musyoka:
For the Vice President this affair has its own perils. The Vice President is a man of the law who campaigned for the Presidency as ‘Mr. Clean’. It is politically bad judgement on his part not to understand that the way this affair is going, he looks like the beneficiary of the Muthaura offer.
The wags would say to him: ‘Yes, indeed Pauline will give away the money to charity, but whose political career benefits out of her charitable work? And what about her reputed job at the Central Bank?’
Friends would say more to him: ‘You are already extremely well taken care off – remember many don’t even want you to live in the new Karen mansion that is being built for you at great public expense. You don’t want to look as if you are taking advantage of your position in this time of economic hardship – the charity should be done by the Government not you.’
A reading of the National Budget (as contained in the 2008/2009 Estimates of Recurrent Expenditure of the Government of Kenya for the Year ending 20th June 2009) reveals the extent of the taxpayers’ investment in the personal comfort of the Vice-President and his household. Objective persons might conclude that it appears that the Kalonzo Musyoka household is more than adequately provided for by the taxpayers of Kenya – perhaps even more than generously.
What does the Vice President get?
The total cost of the Vice-President’s household and the press service which follows him at home and abroad is Ksh 230.7 million this year. The VP’s house allowance of Ksh 2.4 million (Ksh 200,000 per month). You will find this expenditure at page 234 of the 2008/2009 Estimates of Recurrent Expenditure of the Government of Kenya for the Year ending 20th June 2009. Look for Vote R05 Office of the Vice President and Ministry of Home Affairs, under vote head No. 240 – Vice President Press unit and Household Services.
The Vice President’s household has an annual budget of Ksh 4.3 million for hospitality – about Ksh 358,000 per month. Just over Ksh 30 million is budgeted for rent under the VP’s Household budget line. The household can consume Ksh 14 million per year on fuel and stay within budget, while also spending Ksh 11 million on routine maintenance of vehicles, and a further Ksh 6.5 million on maintenance of other assets in the households. This year, over Ksh 75 million has been allocated to the VP’s household for domestic and foreign travel. Last year the Vice President’s official household comprised of 57 staff and there were 12 cars.
Clearly, the elevated political status of the Kalonzo Musyoka family is already well taken care of. Taking any more from poor Kenyans appears churlish and inconsiderate.
To those responsible for correcting the situation:
When all is said and done, certain institutions should have stepped in for Kenyans. The Controller and Auditor General being just one of them. Perhaps the Controller and Auditor General might exercise her constitutional powers under section 100 of the Constitution to disallow the Muthaura gift, and put an end to the patronage he is dispensing.
Certainly, Parliament must put its foot down and stop Ambassador Muthaura from running amok with public funds. They should remind him that it is illegal to do what he has done, and punish him if he is recalcitrant. Parliament should also urgently review the proposed expenditure on the households and personal comfort (e.g. limousines) of the top national leadership. Where waste can be trimmed the savings could be directed to development expenditure for the real benefit of the public.
One also expects Kenya’s voluble civil society to join the debate, but sadly only Bunge La Mwananchi stands out in keeping the flame of accountability alive on this issue. Better funded and organized groups are silent on this important but seemingly sensitive issue. We have in mind for example the newly formed National Taxpayers’ Association which needs to urgently start speaking out on the misuse of our funds for political patronage.
Mwalimu Mati
Mars Group Kenya
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