MUTUNGA: Benard Muchere breathes life into Constitution Chapter 12

He is a certified fraud examiner and has served as president of the Association.

In Summary
  • Chapter 12 provides strong controls to safeguard public money and Muchere has been instrumental in unearthing numerous frauds in public investment.
  • Eight months ago Muchere established the SGR was used to syphon more than Sh1.2 trillion of taxpayers’ money. Nothing has been done.
Accountant Benard Muchere
Accountant Benard Muchere
Image: FILE

Many Kenyans know Citizen Omtatah, the senator for Busia county who is prominent for his public interest litigation. He has consistently and continuously breathed life into the 2010 Constitution on many issues.

Little is known of Benard Muchere, who has also consistently and continuously breathed life into Chapter 12 of the Constitution. He is a certified fraud examiner. He has also served as president of the Association of Certified Fraud Examiners, Kenyan Chapter.

Chapter 12 of our Constitution provides strong and adequate controls to safeguard public money. The control measures are embedded in the principles of public finance, equitable sharing of revenues, consolidated funds and other public funds, taxation, borrowing by the national and county governments, budget estimates, and the annual Appropriation Bill/Act, and procurement of goods and services.

To enforce the controls, Chapter 12 has established independent state officers and institutions. They include the Controller of the Budget, the Auditor General, the Salaries and Remuneration Commission, and the Central Bank of Kenya. Proper implementation of all other chapters in the Constitution depends, by and large, on the effective implementation of Chapter 12, the Mother of Public Finance.

The relevant constitutional provisions reflect the purpose of changing a history since Independence of opaqueness in public finance, non-accountability, inequity in salaries and taxation, and great need to set up a framework of social transformation in our public finance.

The Constitution decrees openness and accountability, including public participation in our financial matters. It also decrees our public finance system shall promote an equitable society. History records our society has not been equitable.

As a people, we were never consulted in public finance matters. Since the Constitution decrees that we the people of Kenya are the custodians of sovereign power, it is not surprising the Constitution decrees our public participation in an area of great importance.

Connected to the issue of public finance is both the National Treasury and Parliament. The latter has critical committees, for example, the Public Investment Committee and the National Assembly Public Debt and Privatisation Committee. Also involved is the Ethics and Anti-Corruption Commission, which was set up to stop the corruption and wastage of our national resources.

It is important to mention here that under Article 119 (1) of the Constitution, every Kenyan has the right to petition Parliament “to consider any matter within its authority, including to enact, amend or repeal any legislation”. This provision underscores the sovereign power of Kenyan citizens individually and collectively and the need to monitor how our delegated power is exercised.

If one peruses the Auditor General’s reports since Independence, it will become clear why the Constitution had to bring transparency, equity, and accountability to public finance. It is often said in jest that our national sovereign debt equals monies stolen by politicians and public servants since Independence.

The recent Oxfam Report tells us we are a country of 8,300 billionaires whose assets equal the assets of the rest of us, the 56 million. Such inequity and inequality are not sustainable in a country with a history of colonisation. The vision of the Constitution in decreeing principles and values of governance also reflects the background and purpose of such provisions.

Allied to the vision of devolution of political power and equitable distribution of resources in a country of unacceptable inequality, one comes to appreciate how critical patriotic activism in this area of public finance is to our social transformation.

What Muchere continues to do

Muchere has worked on various public investments that have been in the public domain for a while. Some examples will suffice: allegations of fraud in the contract for funding, designing, building, operating and the transfer of the Arror and Kimwarer multipurpose dams; and his presentation before the Public Debt and Privatisation Committee of the National Assembly on the 2023 Medium-Term Debt Management Strategy.

He also petitioned both Speakers of Parliament to be heard on his fraud examination of the standard gauge railway (SGR) project, which he established was used to syphon more than Sh1.2 trillion of Kenyan taxpayers’ money.

He advised the prosecution undertaken by the Ethics and Anti-Corruption Commission (EACC) on the Ronald Ngala Utalii College case. He has petitioned the National Assembly on the failure of the Auditor General to meet the constitutional threshold and criteria in undertaking the special audit report on supplementary expenditures.

In this last matter, he reiterates his position that “the auditor-general is engaged by ‘Wanjiku’ and the reports are for ‘Wanjiku’ and must be in accordance with ‘Wanjiku’s’ requirements in the Constitution 2010, and not in accordance with the IMF or World Bank or any other lender.” Apparently, the IMF had decreed such special audit report. The National Assembly is yet to respond to this petition to be heard.

On the SGR matter nothing has been done after the petition was filed eight months ago. The EACC is yet to engage him on the issues he has raised on how the prosecution as currently undertaken would not succeed.

Let us breathe life into the Constitution

The Constitution gives us many sites for struggle for its implementation. Citizen action is missing on such issues as land, rights, governance and the environment, among other matters. There is need to have as many movements on these issues as possible.

If we allow the politicians and bureaucrats to act without constitutional checks and balances. then the constitutional radical idea of our sovereign power will remain abstract.

Chief Justice and President of the Supreme Court, 2011-2016

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