Muslims for Human Rights (MUHURI), a CSO based in Mombasa, has been monitoring expenditures under the Constituency Development Fund (now National Government Constituencies Development Fund as of 2016) since 2005. The Fund provides each member of Parliament in Kenya with $1 million a year to support development projects in his or her constituency.[ref] The CDF was launched through the CDF Act of 2003, to promote development and public participation in the development of constituencies.[ref]
The CDF program – while intended to increase efficiency in delivering development aid – has been the subject of much controversy amidst allegations of corruption, fraud and mismanagement.[ref] As The Institute for Social Accountability (TISA) notes, concerns around the CDF include non-transparent management of CDF funds, CDF projects not being useful to communities and communities not being involved in the management of the funds. For instance, the Kenya Taxpayers Association has estimated that in financial year 2006/2007, about KSh 170.2 million (approximately 17% of the total CDF budget that year) was missing in 23 constituencies, while over KSh500 million was reported missing in 2008/2009.[ref]
MUHURI has engaged in social audits and monitoring of CDF project – through interviews, site visits, and document review – since 2005. In addition to MUHURI’s efforts, TISA has developed a social audit manual for CDF projects in 2008.[ref] Moreover, youth in Kwale, Kilifi, and Nairobi counties have been using social audits as a participatory process and tool with support from CSOs, such as Plan International.[ref]
The public participation principles in action are the respect for self-expression, transparency, sustainability and complementarity.
The public participation practice takes place during the audit stage and engages the legislative branch of government.
This is an example of invented participation by non-state organizations. Social audits of CDF projects were started by MUHURI, but other organizations – such as youth groups and TISA – have also been actively engaged in increasing accountability and transparency for CDF projects, by actively leading or aiding the public in monitoring activities.
MUHURI is a CSO based in Kenya’s coastal region that has been promoting good governance and respect for the human rights of marginalized groups since 1997.[ref] The organization has developed a participatory process – “social audits” – to evaluate CDF’s performance and use of public resources and to provide accountability and oversight.
Kenya’s Constituency Development Fund has been established to allow members of parliament to provide developmental support to projects in their constituency, up to $1 million. The source of CDF funds is ordinary government revenue, i.e. it is funded from the annual budget.[ref] Each Kenyan constituency receives CDF funding.[ref]
The CDF is used to allocate 2.5% of the Government annual ordinary revenue to constituencies.[ref] Until 2004, the CDF was distributed equally among the 210 (now 290) constituencies. After that, they adopted an allocation formula that provides an almost uniform amount to each constituency, but with some allowance for poverty levels, to ensure that poorer constituencies receive more assistance[ref] The NG-CDF is managed by the NG-CDF Board at the national level. and at the local level, it is the NG-CFD Committees that ensure participatory project identification, planning and monitoring and evaluation of projects in the constituencies.[ref]
The program is executed by the legislature and it is the executive branch that oversees it.[ref] In principle, the public should be able to participate in the various cycles of the CDF process.[ref] This should include being informed of CDF projects; participating in CDC meetings in the constituency and monitoring CDF projects, including reporting abuses.[ref]
The regulatory framework governing the allocation of these funds consists of the CDF Law of 2003, but the 2003 law was not supplemented by regulations setting out detailed provisions on program implementation, and there is also a lack of monitoring and oversight mechanisms.[ref] The 2003 Law was first replaced by the CDF Act of 2013, which was declared unconstitutional and replaced by the National Government Constituencies Development Fund Act 2015, which has been in force since 19 February 2016.[ref] Prior to the Act of 2015, the main sectors funded by the CDF were education, health, water, and security, among others, but going forward, the NG-CDF will only fund community projects that fall under the National Government.[ref]
Who and How
As IBP notes, for a social audit to be successful, detailed records of the activities under monitoring and oversight must be available. CDF projects are listed through a website, but the information is not specific enough for oversight purposes.[ref] Between 2005 and 2007, MUHURI encountered difficulties in gaining access to CDF records (initially bank statements and other expenditure reports for a particular constituency) therefore the organization’s efforts were restricted to raising awareness.[ref] Starting in 2007, MUHURI gained access to CDF records from two parliamentary constituencies and used the records to conduct two social audits—one in August 2007 in Changamwe and the other in July 2008 in Bahari.[ref]
Social Audit in Changamwe
By convincing an MP that the social audit would be a groundbreaking event, and that it would help boost the MP’s public image, MUHURI gained partial access to a set of CDF records for 14 projects that were considered successful by the Changamwe CDF Committee (CDC).[ref] The records included the Second Schedule, listing the projects selected by the Committee, Bills of Quantities, describing work specifications, minutes of the meetings of the committee and Completion Certificates for completed projects.[ref]
MUHURI conducted site visits to all 14 projects, including interviews with the local residents.[ref] Concrete problems were discovered as a result of the social audit with the implementation of a number of projects. Many of the issues would not have been discovered without full access to the records and without a site visit.[ref]
The results of the social audit were announced through a day-long public hearing, attended by 1,500 residents, local CDF officials, and media.[ref] The MP of the constituency joined the hearing himself and signed a petition demanding greater transparency and accountability measures to be included in the CDF Act.[ref] The social audit was considered a success by MUHURI and the MP himself, who got re-elected, in large part due to his openness to the social audit.[ref]
The Bahari Social Audit
As a result of the successful social audit in Changamwe, MUHURI managed to gain access to 13 CDF projects’ records in Bahari. The records were given on the condition that they allow CDC members to observe the social audit, to which MUHURI agreed to, despite concerns about the presence of CDC members disrupting the process.[ref]
As in the previous audit, MUHURI used documents such as Bills of Quantities to uncover problems with a number of CDF projects. Examples of issues include discovering through a physical verification that the chief’s office toiled in Matsangoni village was incomplete and unusable as it was not built to specifications, even though project documents indicated that the project had been completed or discovering through a physical verification of a road project that gravel was missing from the road, and interviews with local residents for the same project revealed that the laborers who worked on the road had not received payment, only food.[ref]
Bahari CDC officials tried to interfere with MUHURI’s social audit once they realized that inconsistencies and serious issues were being uncovered, which resulted in a delay in the proceedings.[ref] Results of the audit were nevertheless announced through a public hearing with over 1,000 attendees, although CDC members did not participate in the meeting.[ref]
The Institute of Social Accountability Social Audits
In addition to the MUHURI social audits, the Institute of Social Accountability in Kenya (TISA) is engaged in capacity-building for citizens for social audits, using a set of public information and monitoring tools that aim to track public expenditure under the CDF.[ref] The CDF Social Audit Tools are used to train both groups and individuals, and assist communities in understanding how CDF works. The Tools are also intended to assist communities to participate in the various stages of the CDF project cycle, including the monitoring stage.[ref]
In its first part, the TISA manual gives a detailed introduction to the CDF, including an outline of the concept of the Social Audit and including its objectives.[ref] The section also explains how CDF funds are allocated and looks at the key institutions involved in CDF administration.[ref] The next section looks at the CDF process in detail, discussing the key stages of the CDF project cycle. Monitoring and evaluation is discussed in the following section, including the social audit. Practical CDF social audit tools are introduced in this section, while the last section discusses advocacy issues raised in CDF implementation.[ref]
Youth Social Audits in Kwale, Kilifi and Nairobi Counties
The social audits by youth groups in Kwale, Kilifi and Nairobi counties, another form of autonomous public action, started out through awareness raising: information was made available to the public on government resources allocated to community projects and other services.[ref] The youth mobilized their peers to start a social audit – in light of allegations of misuse of funds – both through informal means (regular peer interactions) and formal methods (registered youth organizations). Plan International worked with district youth councils in Kwale and Kilifi, and Jipange Youth Organization worked with the youth in Nairobi, and this served as the enabling platform.[ref]
Following this, the youth formed social audit teams with a view to making these teams gender-balanced and socially inclusive.[ref] The groups drew up Terms of Reference for the social audit. A scorecard was also developed with individual and collective criteria and rules for engaging with officials at selected project sites.[ref] CDF managers were required to present financial documentation, including bills of quantities to the social audit team for verification and site visits were also set. Social audit teams arrived at site visits with cameras, questionnaires, and stationery, in order to capture the data.[ref] Meetings were set up with the local CDC, where the youths identified themselves as students rather than social auditors to avoid negative interference. The youth used focus group discussions, interviews and on site verification to inspect the projects.[ref] A report was prepared to detail their findings and a feedback meeting was held between stakeholders and the youth, where an action plan was drawn up to detail how the project could be improved, which in some occasions included redoing the project.[ref]
Results and Impact
As noted earlier, the results of the Changamwe and Bahari process were publicized. MUHURI tried to gain access to further CDF records from Likoni and Kisauni constituencies, both constituencies with new MPs, who might be more amenable to a social audit since they would not be involved in any mismanagement of CDF funds but both MPs refused to share access to CDF records.[ref]
As noted above, a new CDF Act was introduced in 2013 as a result of the concerns regarding CDF projects. This Act was declared unconstitutional and replaced by the NG-CDF Act 2015, which is now in force.[ref] The 2015 Act introduced a Constituency Oversight Committee (section 53 of the NG-CDF Act): this is an additional committee at the Constituency Level, whose main function is to oversee projects undertaken under the Act and to receive feedback from members of the public during forums convened for that purpose.[ref] Since the law entered into force in February 2016, there is – as of now – no information available to GIFT on the operation of these forums.
A critical issue faced by the MUHURI social audit was the lack of Freedom of Information law in Kenya. Without such a law, access to public information is often an issue, and sharing information about the use of public resources is left to the good will of public officials.[ref]
Feedback has been important to shape how social audits are being done. For instance, regarding the youth social audits, feedback from CDF officials was that the CSOs needed to clarify and clearly communicate their methodology for conducting social audits. In the same context, the use of technology and digital mapping has also been credited with inciting positive response from some CDF officials: data from the projects went online before the final report, which may have led to more feedback and engagement from some CDF officials.[ref]
Principles of Public Participation in Fiscal Policy
The social audits of the CDF represent a challenge for defining the principles engaged since in all cases, public participation was not invited, the participation of the legislature and the MPs was hesitant, although in the first two cases, the participation was initially agreed to by the authorities.
Nevertheless, certain principles are represented to an extent in this practice.
– Respect for self-expression: This principle is represented in the first two examples as the participation was initiated by the public and was ultimately agreed to and accepted as a means of self-expression.
– Transparency: a certain level of detailed project-level information was made available for the social audits that enabled detailed assessments to be undertaken.
– Complementarity: The social audits complemented weak or non-existent internal and external audits. With the introduction of the new Oversight Committee, social audits may continue to provide information to and complement the official processes.
– Sustainability: public forums have been built into the official oversight mechanism, institutionalizing public participation.
Type of Government
The Republic of Kenya, with a population of over 44 million people, has a mixed presidential system of government, where the president is head of the executive and also of state and is elected directly by the people and where the bicameral Parliament (Senate and National Assembly) also has considerable powers, including that of removing the president.[ref]
Kenya’s current government system is the result of its new constitution that was adopted by referendum in 2010.[ref] Before 2010, Kenya’s independence constitution – adopted in 1963 and modified several times – had been in effect. The independence constitution – a result of negotiations between the British government and the various Kenyan political parties – reflected a system of devolved, decentralized government that placed a high value on the autonomy of the regions.[ref] The constitution, through its 1964 amendment, also created a presidential government.[ref]
The regions’ autonomy was abolished within five years, and the president gained extensive powers, without appropriate checks and balances, and Kenya operated on a single-party system until 1992.[ref] Starting in the 1990s, demands for a constitutional review were becoming stronger, resulting first in a transition to a multiparty system, then in 2010, the referendum that adopted the new constitution, which re-established a devolved system of government. There are 47 counties set up, each with its own powers of administration and budget. These units are not subordinate to the national government.[ref]
The 2010 constitution also contains important principles regarding fiscal policy decision-making, as a response to the previous situation where the National Budget was adopted without any form of public participation.[ref] Under Article 10, the Constitution recognizes public participation as a national value, and under Article 118, it mandates that parliament should facilitate public participation in its legislative and other business.[ref] The Parliament now also plays a much larger role than before in the budget process and citizens, policy experts and CSOs are allowed to directly engage with the legislative branch in this process.[ref] In addition, the constitution introduced a rights-based approach to development, based on devolution, and ensuring that citizens have numerous opportunities to participate in decision-making processes, particularly at the subnational level.[ref]
Following independence, Kenya experienced long periods of human rights violations, and a long history of conflict with human rights activists and civil society organizations, who – particularly starting from the 1990s – started urging for constitutional reform. The new constitution reflected a turning point as it established that public participation is a national value (Article 10). Kenya has more than five thousand registered CSOs,[ref] which are active in all sectors, including education, governance, health, gender empowerment, and poverty alleviation, among others.[ref] The civic space has been fairly open and democratic, but recently there have been developments to constrict this space. In 2014, for instance, the government deregistered over 500 NGOs and charities, claiming national security interests, and new anti-terror laws have been adopted that restrict civil liberties, specifically freedom of expression. [ref]
Open Budget Survey 2015
According to Open Budget Survey 2015, The Government of Kenya provides the public with limited budget information. It scored 48 out of 100 in the Open Budget Index. This is slightly less than its previous 49 score in 2012.[ref] The Government of Kenya is also weak in providing the public with opportunities to engage in the budget process. The score for Public Participation in the budget process is 33 out of 100. Budget oversight by the supreme audit institution is adequate and it scored 67 out of 100. However, budget oversight by legislature is limited and it scored 49 out of 100.[ref]