Kenya

Researcher + Peer Reviewer148: The ministry of Finance does not make results or proceeds of asset disposals publicly available.

There is limited information regarding procedures or controls.

Article 54 (1) of the Public Procurement and Disposal Act requires that information and invitation to tender is brought to the attention of those who may wish to submit tenders. Article 129 (3) then provides for the range of methods of disposing of the stores and equipment. These include (a) transfer to another public entity or part of a public entity, with or without financial adjustment; (b) sale by public tender; (c) sale by public auction; (d) destruction, dumping or burying; or (e) trade-in.

The Public Procurement and Asset Disposal Bill from 2014 states all asset disposals shall be planned by the accounting offices and included disposal committees which shall be responsible for verification and processing of all disposal recommendations. In addition to audit, administrative review of the given disposal is possible within fourteen days of notification of date of occurrence.

However, the bill also states that procurement and asset disposals of a classified nature shall use a dual list which distinguishes items subject to open and to classified procurement and disposal proceedings respectively. Therefore, a fair though unknown amount of defence asset disposal takes place through alternative procedures and are not published. These disposals are reportedly subject to a classified audit by the Auditor General.

Under the Kenya Defence Forces Act (Article 288) on &quoute;Annual estimates,&quoute; it is required that at least three months before the commencement of each financial year, the accounting officer in the Ministry designated by the Treasury shall prepare the estimates of the revenue and expenditure of the Defence Forces for that year. For accounting of the revenue from asset disposal, the military Finance Department reportedly contains two parallel offices, representing defence and Treasury wing. Money obtained from asset sales go directly to the Treasury wing. (Respondent 1).

However, the Auditor General notes that the “Kenya Defence Forces did not keep books and records of account, and did not provide for audit the income and expenditure statement, statement of assets and liabilities and cash flow statement. This is in breach of Section 289 (1) and (2) of the Kenya Defence Forces Act, 2012.” The audit also noted inappropriate presentation of financial statements and a lack of documentary evidence for transfer of receipts from UN mission to the Exchequer.

Nor could it be determined that revenue from asset disposals is incorporated into the Estimates of Revenue. The Estimates of Revenue do not appear to be regularly updated or made publicly available.

Researcher + Peer Reviewer148: There are a number of bodies that exhibit some degree of scrutiny over asset disposals -- primarily disposal committees (activity unknown) and the auditor general.

The primary body which scrutinizes asset disposal is the Auditor General's office. Relative to the contents of the report, the Office of the Auditor-General can be seen to provide relatively effective regulatory oversight, though there is concern that expenditure management, particularly large scale procurement decisions, has been hidden from public scrutiny by secrecy and weak oversight, a loophole that has previously seen scandals in defence procurement. For example, in his report for 2012/2013 financial year, the Auditor General raised questions over the acquisition of 181 APC’s which were originally meant for Kenya defence Forces (KDF) though ended up in South Sudan in the hands of the United Nations peacekeeping mission without proper documentation.

In the subsequent 2013-2014 report, the situation of asset control and disposal did not appear to be much improved -- the Auditor General notes that the “Kenya Defence Forces did not keep books and records of account, and did not provide for audit the income and expenditure statement, statement of assets and liabilities and cash flow statement. This is in breach of Section 289 (1) and (2) of the Kenya Defence Forces Act, 2012.” The audit also noted inappropriate presentation of financial statements and a lack of documentary evidence for transfer of receipts from UN mission to the Exchequer.

Another factor limiting oversight is that the Public Procurement and Asset Disposal Bill from 2014 also states that procurement and asset disposals of a classified nature shall use a dual list which distinguishes items subject to open and to classified procurement and disposal proceedings respectively. Therefore, a fair though unknown amount of defence asset disposal takes place through alternative procedures and are not published. These disposals are reportedly subject to a classified audit by the Auditor General.

The Public Procurement and Asset Disposal Bill from 2014 states all asset disposals shall be planned by the accounting offices and included disposal committees which shall be responsible for verification and processing of all disposal recommendations. It does not appear that these disposal committees publish reports. In addition to audit, administrative review of the given disposal is possible within fourteen days of notification of date of occurrence. However, the degree to which this is used is not know.

Interviewees state that oversight is weak since it is basically internal, in this case provided by the Treasury officials. Once the items are sold, the proceeds go directly to their office. (Respondent 1). Major weakness are evident in the disposal process, in that insider persons inform their relatives or friends on how to bid, making it nearly impossible for any other person outside these circles to bid successfully (Respondent 5).

Researcher + Peer Reviewer148: Detailed information on the percentage of defence and security expenditure in the budget year dedicated to spending on secret items is not available to the public.

The budget provides a one-line allocation to the National Intelligence Services. (The National Treasury 2015) However, it is unknown how much of the defence budget is spent on secret items.

The SIPRI military expenditure programme director stated in 2015, in relation to Kenya’s defence budget, that he “was not able to find detailed breakdown of the budget from government or other sources.” It is therefore possible that the percentage of spending that is secret would also not be made publicly available.

In a report to the Parliament’s Defence and Foreign Relations Committee, the Director General of the Public Procurement Oversight Authority mentioned that the Department of Defence ignored requests to submit its list of purchases for equipment worth Sh4.5 billion for scrutiny. This lack of openness regarding expenditure is also confirmed by interviewees who state that the military remains opaque in the manner in which it procures goods and manages its budget (Respondents 1 and 2).

Only the Parliamentary Defence and Foreign Relations Committee is mandated to scrutinise the defence and intelligence, under oath, but is still unable to review the intelligence gathering and assessment priorities of the agencies (Business Daily, 2012).

In 2013 defence officials defended the secrecy surrounding military spending. (Mwaniki 2013)


RESPONSE TO PEER REVIEWER 2: Agreed. Relevants comments and sources added. Please note that the question will generally be scored on information made available within the last 2-3 years (i.e. since the last GI assessment).

Researcher + Peer Reviewer148:
Only the Parliamentary Defence and Foreign Relations Committee is mandated to scrutinize defence and intelligence. It has an oversight role which entails scrutiny of financial, administrative and management practices of the Ministry of Defence and defence matters.

A series of recent investigations have been undertaken by the committee (Reuters, 2014; The East Africa, 2015; Business Daily, 2014) However, it is still unable to consistently review the intelligence gathering and assessment priorities of the agencies (Business Daily, 2012) and it is unclear to what extent any scrutiny is comprehensive and consistent and whether it includes secret programs.

Defence officials have continually defended the secrecy surrounding military spending. (Mwaniki 2013) Access to detailed information on military expenditure remains restricted due to national security; access is often limited on account of national security concerns. The restriction is governed under the framework that deals with classification of information, as defined in Article 2b of the National Intelligence Service Act, 2012: “‘classified information’ means information of a particular security classification, whose unauthorized disclosure would prejudice national security.” In early 2015, President Kenyatta reportedly had plans to introduce legislation that would keep security and military spending a secret on the basis of “national security.” (Nation 2015)

An interviewee noted that only the defence and Foreign Affairs Committee receive some or summarized information on secret spending under oath to ensure confidentiality (Respondent 2).

Researcher + Peer Reviewer148: Interviewees indicated that parliament has virtually no control over the NIS. Essentially, it has limited or no information on what the service does (Respondent 2).

The National Intelligence Service (NIS) budget is annually approved by Parliament and is subject to the Auditor General's oversight. The most recent Reports of the Auditor General reveal issues of weak internal control and even the findings of the external auditing were very limited, indicating a possible lack of disclosure of information to the Auditor General. Commenting recently on his annual reports on government expenditure, the Auditor-General, expressed frustration at the lack of action on his periodic reports on government expenditure (Daily Nation, 2014). Overall there is limited evidence of effective oversight of the NIS.

Articles 289 (3) of the Kenya Defence Forces Act requires that the annual accounts of the Defence Forces be prepared, audited and reported upon in accordance with the provisions of the Constitution relating to control of public money. Further, Articles 290 (1 & 2) requires an annual report to be prepared for each financial year, and submitted to the President and Parliament within three months. The Public Procurement and Asset Disposal Bill from 2014 states that procurement and asset disposals of a classified nature shall use a dual list and separate classified audits are conducted for secret programs.

Information on actual public spending becomes public on the basis of reports by the Auditor- General’s office and make its findings public (Business Daily, 2015). However, interviewees note that the extent to which it subjected to debate in parliament may be limited, on account of the level of detail (Respondent 5). According to Respondent 2, the reports are submitted to the House Committee on Foreign Relations and defence with summarized information, limiting its ability to adequately scrutinize the spending.

Moreover, relative to the contents of the report, the Office of the Auditor-General can be seen to provide relatively effective regulatory oversight, though there is concern that expenditure management, particularly large scale procurement decisions, has been hidden from public scrutiny by secrecy and weak oversight, a loophole that has previously seen scandals in defence procurement.

The reports provide information on secret items, but are rather limited in terms of the level of financial detail. For example, the 2012-13 Report raised procurement questions about the acquisition of several Armoured Personnel Cariries (APCs), as illustrated below:
419. Purchase of Armoured Personnel Carriers (Apcs)
420. Purchase of Thirty Two (32) Apcs
422. Purchase of Seventy Five (75) Apcs
423. Purchase of Seventy Six (76) Apcs

It is on this basis that the Government proposed a new Public Audit Bill (2014) aimed at prohibiting the Auditor General from making public “particular information in a public report if it would prejudice the security, defence or international relations of the Government of the Republic of Kenya.” (Standard Media, 2015). In early 2015, President Kenyatta reportedly had plans to introduce legislation that would keep security and military spending a secret on the basis of “national security.” (Nation 2015)

RESPONSE TO PEER REVIEWER 2: The information you cite could not be located and is therefore is not publicly available. Moreover, according a July 2015 statement by the Auditor General, &quoute;There is the risk of [government] proceeds being appropriated without the authority of the Controller of Budget.&quoute;

Researcher + Peer Reviewer148: The Public Finance Management Act (47(1) identifies off-budget expenditures, namely “donation” and “grants.”

In Article 223 of the Constitution, off-budget expenditures are more generally classified under supplementary appropriation. On this basis, the national government may spend money that has not been appropriated if— (a) the amount appropriated for any purpose under the Appropriation Act is insufficient or a need has arisen for expenditure for a purpose for which no amount has been appropriated by that Act; or (b) money has been withdrawn from the Contingencies Fund.

Under Section 47 (3), off-budget expenditures are permitted with the approval of the Cabinet Secretary.

Under clause (4), the Act requires that Funds received in the form of grants or donations shall only be spent in accordance with Articles 221 and 223 of the Constitution and this section.

Section 47 (7-10) underlines the conditions for receiving grants and donations:

ot(7) The Cabinet Secretary shall inform Parliament of the authorisation given under subsection (6) (b) in accordance with Article 223 of the Constitution.

ot(8) The recipient of a grant or donation from a development partner shall record the amount or value of the grant or donation in its books of accounts.

ot(9) Subject to audit in terms of Article 229 (4) of the Constitution, the recipient of a grant or donation shall administer and account for the grant or donation by using— government financial accounting and auditing laws and, administrative procedures; or any financial accounting rules and procedures for money specified in the agreement between the recipient and the development partner.

ot(10) The Cabinet Secretary may in addition to the audit under subsection (9), permit a donor of a grant to audit such funds on the basis of its own financial accounting rules.

Article 223 (2 to 5) of the Constitution specifies the process for spending money that has not been appropriated. In all cases, approval of Parliament is required, and if Parliament is not sitting, the approval shall be sought within two weeks after it next sits. When the National Assembly has approved spending, an appropriation bill shall be introduced for the appropriation of the money spent. In any particular financial year, the national government may not spend under this Article more than ten per cent of the sum appropriated by Parliament for that financial year unless, in special circumstances, Parliament has approved a higher percentage.

Off budgets are published in the Kenya Gazette Supplement. For example, supplementary appropriation for the defence was recorded under code R108, in the Kenya Gazette Supplement of 1st July, 2013 for an amount totaling Ksh. 1,550,000,000, required in June 2013, for salaries and expenses of the Ministry of State for defence, including general administration and planning, and expenses of the Kenya defence Forces.

In terms of oversight, the Open Budget Survey notes that no audits of extra-budgetary expenditures have been conducted. Estimates of all sources of donor assistance are presented in the budget, but a narrative discussion is not included. (Open Budget Survey 2015)

Interviewees indicated that the Ministry of Defence has off-budget spending, although these are limited to certain amounts. Before they are effected, they undergo a stringent process, including approval first by senior ministry officials (Respondent 1).

Researcher + Peer Reviewer148: It is unclear the extent to which there are any off-budget expenditures.

Kenya receives a significant amount of security assistance. (Nation 2015; Kenyan Ministry of Defence 2015; US Department of State) However, it's unclear to what extent this is recorded in the government defence budget. The audit report for 2014 indicated that there had been inaccuracies with the defence account balance since &quoute;expenditure was incurred under national space Secretariat which was not yet operational.&quoute; (Auditor General 2015) While this incurred expenses covered by the budget, it shows that funds, whether off-budget or on-budget are vulnerable to misappropriation and diversion.

The Kenyan military will get Sh9.5 billion out of the Sh10 billion US aid given to Kenya in 2015. The assistance is intended for enhancing “manoeuvre and border force, counter-improvised explosive devices, intelligence and logistics”, and it will also help Kenya soldiers identify and target Al-Shabaab terrorists and respond to attacks effectively. The money would also buy military aircraft. (Nation 2015)

Supplementary appropriation for the defence were recorded under code R108, in the Kenya Gazette Supplement of 1st July, 2013 for an amount totaling Ksh. 1,550,000,000, required in
June 2013, for salaries and expenses of the Ministry of State for defence, including general administration and planning, and expenses of the Kenya defence Forces. Since they are recorded, these appropriations cannot be considered to be &quoute;off-budget&quoute;.

A Bill has been tabled in the National Assembly that proposes to shield the military from any form of civilian oversight, including financial accountability, except in deployment to operations. The Bills proposes to remove the requirement for the Defence Cabinet Secretary to table in Parliament a yearly report on how the forces use their budget. At the time of writing, no evidence could be found indicating this bill had passed.

Interviewee respondent 2 notes that there is no evidence that supplementary appropriations are used for illicit activities because these have to be approved by Parliament, which then becomes an Act of Parliament (Respondent 2).


RESPONSE TO PEER REVIEWER 1:
The assessor was unable to decipher the contents of your sources without further information on the articles or sub-headings, because Nation Media does not provide access to its online archives.

Researcher + Peer Reviewer148: In law there are provisions made for the classification of information though no mechanisms for classifying data exists.

According to Article 2b of the National Intelligence Service Act, 2012, “‘classified information’ means information of a particular security classification, whose unauthorized disclosure would prejudice national security.” In accordance with Article 37 (3 and 4), the Cabinet Secretary in this respect may by regulations determine the categories of security classification; the four categories in order of ranking in this case being: top secret, secret, confidential and restricted. There are however no mechanisms for classifying data.

The National Intelligence Service Act reportedly conflicts somewhat with the provision for freedom of information stipulated in the Constitution. While the Constitution reportedly enshrines access to information in Articles 35 and 10, NGO reports indicate that “the State is yet to enact legislation to guide holistic implementation of the right to access information [and] the State continues to withhold vital information that compromises the very principles and values of governance espoused by the Constitution.” (Transparency International Kenya 2012) Freedom House also noted that, Kenyan legislators passed security legislation in late 2014 that threatened to curtail media coverage of terrorist attacks and security operations in the country. In early 2015, President Kenyatta reportedly had plans to introduce legislation that would keep security and military spending a secret on the basis of “national security.” (Nation 2015)

Little control is exercised and in practice there may be evidence of individuals or agencies influencing decisions. According to Respondent 2, the National Intelligence Services (NIS) is known for by-passing classification criteria, and practically consider all security related information as secret or top secret. It can be observed that both the Ministry of Defence and National Treasury websites provide practically no financial related information.

Moreover, the Officials Secret Act is reportedly not very clear on what constitutes secret information; as a result, civil servants deem any security information secret in order not to violate the Official Secrets Act, which contradicts the provisions of the new constitution on Freedom of Information. The classifications of secret information is not subject to effective scrutiny because the Cabinet Secretary is given the sole mandate of making such determinations.

Researcher + Peer Reviewer148:
There are several companies that are state owned in Kenya though it’s uncertain to what extent this ownership is held by the military or defence establishment.

In 2013, an investigation showed that “rogue elements in the Kenyan Defence Forces” had been implicated in a scheme to misappropriate funds from the sugar-making companies (Mungai 2015; Wahito 2015)

Kenya Ordnance Factories Corporation (KOFC), is a State Corporation, that operates under the Ministry of Defence. However, their activities and finances largely remain out of the public domain. is registered as a State Corporation. The stated objects of the Corporation are:

(1) The purpose and the object for which the Corporation is established is to manufacture
hardware machinery and equipment.

(2) The Corporation may engage in other activities normally connected with and
incidental to the object stated above as the Board with the approval of the President shall
determine.

On its website, the range of products produced by the Corporation comprise: i) Small Arms Ammunition, ii) Tools and Parts (gears, shafts, dies, punches), iii) Office and Domestic furniture, and iv) Farm Produce (cereals).

According the military source interviewed (Respondent 1), KOFC is an autonomous entity from the Kenya Defence Forces (KDF) and their mode of operation is not available to the KDF. In the opinion of Respondent 2, the Corporation is not so transparent because the public is not aware of their activities and finances.

Researcher + Peer Reviewer148: Military-owned businesses are subject to some scrutiny, yet the details are not available to the public, and it is known that such processes lack independence or reliability.

There is no evidence that the Auditor-General is involved in such scrutiny.

Kenya Ordnance Factories Corporation (KOFC) is a state corporation established under legal notice No. 125 of 23rd July 1997. As such, under Section 73of the Public Finance Management Act, KOFC, as a National government entity, is required to maintain internal auditing arrangements.

Section 73 (3) stipulates that the Internal Auditor-General Department of the National Treasury shall ensure that its arrangements for conducting internal auditing include—
(a) reviewing the governance mechanisms of the entity and mechanisms for transparency and accountability with regard to the finances and assets of the entity;
(b) conducting risk-based, value-for-money and systems audits aimed at strengthening internal control mechanisms that could have an impact on achievement of the strategic objectives of the entity;
(c) verifying the existence of assets administered by the entity and ensuring that there are proper safeguards for their protection;
(d) providing assurance that appropriate institutional policies and procedures and good business practices are followed by the entity; and
(e) evaluating the adequacy and reliability of information available to management for making decisions with regard to the entity and its operations.

According to the information obtained from the Ministry of Defence website, the Internal Auditing Division functions as an autonomous unit within the Ministry. According to the Respondent 1, internal audit functions are undertaken by the Treasury staff seconded to the Ministry of Defence. The respondent’s comments, however, pointed to the military setup as being a very closed system, which limits the degree to which the internal audit system is able to ensure that institutional policies and procedures are followed. No audit reports of the KOFC could be found on the MoD website.

Researcher + Peer Reviewer148: Under the existing legislation, the military or other defence ministry employees are not prohibited from engaging in private enterprise. However, under Second Schedule [Section 21(1).] clause 14 of the Kenya defence Forces Act, members of the Defence Council are prohibited from transacting any business or trade with the Defence Forces.

The 2012-13 Report of the Auditor-General indicates a high degree of complicity in the procurement process for the supply of spare parts for 76 pieces of APCs, initially for three (3) years at a cost of US$ 5,915,781.00. The observed irregularities included:
otSingle sourcing
otUnspecified meetings
otVariation of spare parts price without any justification (supply for1 year at a cost of USD 2,995,235)

According to source 5, most of the companies involved with procurement are run through proxies of or associated with people within the defence or government (Respondent 5).

The assessor could not find any publicly available evidence indicating that the government applies sanctions to those who engage in private enterprise in any way.

Reports in November 2015 surfaced, claiming that the KDF taxes the $400 million illegal charcoal and sugar trade in Somalia which sustains the terrorist group Al-Shabaab while fighting them (officially) at the same time. This has been refuted by the KDF, however.

Researcher + Peer Reviewer148: There is some evidence of commitment to anti-corruption and integrity measures by the Defence Ministry and senior members of the Armed Forces. Aside from a handful of comments made by the Chief and Vice-Chief of Defence, however, there is no evidence that this is reflected throughout the defence ministry and armed forces.

According to the MOD's Administration Division: It is the function of the administrative division to coordinate various functions in the Ministry. Among the coordination functions include: &quoute;Management of ministerial cross cutting issues on HIV and AIDS, Alcohol and Drug abuse (ADA), Gender, Youth and Disability mainstreaming, Corruption prevention strategies and programs.&quoute;

Information on the MOD Service Charter draws attention to the following rights and obligations as the clients in relation to corruption: &quoute;You are expected to desist from any acts of corruption, fraud, fitina (mis-information) or any other undesirable conducts, failure to which punitive action may be taken against you in accordance with the law.&quoute; The MODs position was also made visible by a recent advertisement stipulating recruitment process would be free of corruption. (MoD. &quoute;Advertisement...,&quoute; 2015)

In November 2014 the Vice Chief of the Defence Forces, speaking during the launch of 2014 National Wide Military Recruitment Press Briefing &quoute;highlighted on the Ministry of Defence policy of zero tolerance to corruption. He said the policy exhibits integrity, transparency and accountability applicable to all personnel involved in the exercise.&quoute;

In 2013 the Chief of Defence Forces in a speech during a breakfast meeting of the Kenya Association of Manufacturers, stated that there is no any specific attention on corruption or activities undertaken to address corruption risks in the defence sector. Extracts from speech are as follows:
“Corruption is an endemic global problem. We as government and the private sector should demonstrate a strong political will to fight corruption through the implementation of anti corruption instruments including stringent legislation. I urge you to be in the fore front in the war against corruption.”

Bernard Oginga. “President Uhuru Kenyatta terms corruption the foremost danger in Madaraka Speech,” June 1, 2015. http://www.standardmedia.co.ke/article/2000164238/uhuru-terms-corruption-foremost-danger-facing-kenya-in-madaraka-speech/

Kass Online. “Joint Statement on the Fight Against Corruption in Kenya.” May 13, 2015.
http://kassfm.co.ke/home/index.php/component/k2/item/3302-joint-statement-on-the-fight-against-corruption-in-kenya.html

Researcher + Peer Reviewer148: The legal provisions relating to anti-corruption are encapsulated in the Kenya Defence Forces Act - Article 124 (1a). The reference to corruption offences under of this Act includes a person who engages in corruption, malpractices, or any act or omission while in the course of duty for selfish purposes or gains. Under Article 124, corruption and economic offenses are defined and punishments prescribed “in accordance with the provisions of the Penal Code (Cap. 63), the Anti-Corruption and Economic Crimes Act, 2003 (Act No. 3 of 2003) the law relating to public procurement and disposal of public property, or any other written law.”

According to Respondent 1, there are internal measures in place to deal with corruption offenses. Essentially, the legal provisions are implemented through the Standing Orders. According to Article 9 (a) relating to Standing Orders, the Chief of General Staff or the Commander, in respect of his service, may make general, special, routine and standing orders with respect to discipline, control, good order and guidance.

There is no public evidence of measures taken to deal with corruption cases that have occurred. The assessor could find very limited evidence indicating the effectiveness of these measures. A recent report given by the Vice Chief of Kenya Defence Forces mentioned that 48 military personnel who had been involved in the bribery relating to recruitment had either been sacked or charged in court. No further evidence is provided to support the prosecution outcomes. A separate story chronicled the arrest of a soldier after stealing and re-selling ammunition. (Nzioki 2015)



RESPONSE TO REVIEWERS: Agreed. Score changed to 2 and sources added.

Researcher + Peer Reviewer148: Legally, protection of whistle blowers is within the framework of the Witness Protection (Amendment) Act, 2010. The amendment to the 2006 Witness Protection Act makes provision for the establishment of the Witness Protection Agency, which is mandated to maintain a witness protection programme. The Agency has however faced numerous challenges since its launch in 2011, these being:

tLack of adequate funding
tGetting qualified staff
tThe Agency still depends on the resource allocated to them by the National treasury

There is no hard evidence through media reporting, of whistle blowing since the enactment of the legislation, involving the military or defence institutions. According to Respondent 1, whistle-blowing is encouraged within the military. Respondent 2, however observes that, while this may be so, it is not easy to do so because of a lack of adequate protection measure, and also is a higher possibility that cases that affect senior personnel would be covered-up.

Transparency International Kenya has also reports how whistleblowing in Kenya is discouraged rather encouraged. In January 2015, a blogger was arrested and detained for 24 hours, his social media accounts closed, after he had reportedly published information, backed by documentary evidence, of alleged corruption in a public agency. (TI Kenya 2015)

Recent survey of anti-corruption regulation of select countries showed that one of the key factors relates to ineffective enforcement of whistleblower protection, despite the existence of the Witness Protection Act (Jones Day, 2013).

Whistle blowing is also generally hindered by the Officials Secrets Act, which provides for the preservation of State secrets and State security. Section 7 of the Act stipulates the following:

7) Any person who —

(a) allows any other person to have possession of any official document issued for his use alone, or communicates to any other person any code word so issued; or

(b) without lawful authority or excuse, has in his possession any official document or code word issued for the use alone of some person other than himself; or

(c) on obtaining possession of any official document by finding or otherwise neglects or fails to restore it to the person or authority by whom or for whose use it was issued or to a police officer,

shall be guilty of an offence and liable to imprisonment for a term not exceeding five years.

Researcher + Peer Reviewer148: There are no specific criteria on the basis of time in post. For example, in the Kenya Navy website, the page on training indicates that servicemen can be categorized as Supply Trainees after the Basic Naval Training. They then undergo a 36 weeks training on supply theory after which they sit for class III exams. They are then posted to the departments as Class II, employed as stores accountants and undergo on-job training within all the sections of the departments.

In terms of training, the Ministry of Defence lists various educational institutions, including, for instance the Defence Forces Technical College, Kenya Military Academy (KMA), etc. There are also various schools:

School of Infantry (SOI)
School of Armour (SOA)
School of Artillery
School of Combat Engineers (SOCE)
School of Ordnance (SOO)
School of Transport (SOT)
School of Signals (SOS)
School of Electrical and Mechanical Engineering (SEME)
Defence Forces Pay and Clerical Training School (DPCTS)
Defence Forces school of Higher Education (DFSHE)
Defence Forces Medical Training School (DFMTS)
Joint Helicopter Training School (JHTS)
Defence Forces Constabulary Fire Services Training Scool (DFSTS)
International Mine Action training Centre (IMATC)

However, it's uncertain as to what the detailed curriculum looks like and whether any corruption risk is incorporated into the standard training elements.

Interview comments indicated that no special criteria is used in selection of those to serve in procurement. However, all those selected receive adequate training prior to deployment. Rotations in these positions occur after 3 years. Controls are generally facilitated through Department/Unit audits (referred to as “Admin Parade”), which are undertaken periodically. These exercises involve vetting of all aspects of personnel and department/unit’s work, including financial matters, and subsequently a report is submitted through a chain of command (Respondent 1).

Researcher + Peer Reviewer148: The figures for both the military and civilian personnel in defence is not available from either the respective Ministries or the Public Service Commission websites. However, in respect to the former, estimates are available from secondary sources such as the Global Firepower, which place the number of active frontline personnel at 24,120. One challenge generally of obtaining estimates, both for the total and distribution by station is due to claims of existing ghost workers. The register is also also suspected to contain dead people whose salaries the government has been servicing long after their demise.

There are no publicly available figures of civilian employees in the Ministry of Defence. The headcount of public service workers in November 2014 established a figure of 160, 012 employees out of the targeted 175,522 public servants. This left out 12,510 uncounted for. Detailed information about number of employees by Ministry is not provided.


RESPONSE TO PEER REVIEWER 2: Whilst the sources you list provide show the number of military personnel, they do not specify civilian numbers.

Researcher + Peer Reviewer148: The Salaries and Remuneration Commission is established under Article 230 of the Constitution with the mandate to set and regularly review salaries and remuneration for State Officers and to advise the national and county governments on the remuneration and benefits of all other public officers.

Salaries and allowances for civil employees is determined by the Salaries and Remunerations Commission (SRC), and are based on the mainstream public service job grade system.
Information is publicly available for all the job groups (A-V). This can be accessed from a published study commissioned by SRC (Kenya Institute for Public Policy, 2013).

Salaries paid to the senior military personnel are public information. Information on salaries is publicly available in the Kenya Gazette (2013) for the top ranking officers below. Information is however not provided regarding allowances:
- Chief of Defence Forces
- Vice-Chief of the Defence Forces
- Three Service commanders (Army, Navy, Airforce)

Researcher + Peer Reviewer148: Personnel always receive the correct pay on time and basic pay is non-discretionary. The pay process is facilitated through Integrated Payroll and Personnel Database (IPPD), an initiative that was created to help address the challenges of manual payroll administration, causing salary delays, inaccuracy in determining staffing levels and leading to poor accountability of funds. According to Respondent 1, the IPPD system has been very effective in ensuring salaries are paid on time. There is however indication that it has now become a challenge to control payroll and personnel registries, skill inventories and budgeting of personnel emoluments using IPPD (Respondent 1). Sources also indicate that “Personnel data from all relevant sources should be cleaned up, including head count data, payroll and paper-based records.” (Standard Media 2014)

Researcher + Peer Reviewer148: There is an established system for the appointment of military personnel at the middle and top management level though a lack of clarity surrounding its specifics or application. No evidence could be found to indicate the use of objective job descriptions and assessment processes for appointments, or of oversight of this process by independent personnel. It is also unclear to what extent the KDF and civilan MOD personnel follow the career progression guidelines by the Public Service Commission.

Article 28 (2) of the Kenya Defence Force Act stipulates that in developing the criteria for the recruitment, promotion and transfer of members of the Defence Forces, the Defence Council shall consult with the Public Service Commission.

The Public Service Commission (2013) framework for development of career progression guidelines in the civil service underlines the following conditions:

o Academic/Professional qualifications, key responsibilities, core skills, and core competencies will be in-built in the job descriptions and specifications

o Promotion for officers who have fulfilled the minimum three (3) years prerequisite requirement for advancement to a higher grade will be dependent upon mastery and effective performance of the job

o An officer who fulfils the minimum requisite qualifications for promotion to the next higher grade but has not performed as per the agreed performance targets will work with the first and second supervisor on a work performance improvement programme with a view to bridge the gap. However, necessary measures will be put in place to ensure that the other officer registers sufficient improvement.

o Where officers are in a grade but do not possess the minimum requirements for the grade, they will hold such grades personal to themselves

o Competency tests will be administered at three levels, i.e. CSG10/9/8 (Entry levels); CSG7; CSG5.


Recent reshuffling of senior military officials did not necessarily signal any wrongdoing but nor did it show the existence of clear appointment requirements or procedures .(Standard Media 2014; The Breaking News Kenya 2014) Senior military officials have stayed in post past retirement.

Although no recent cases of nepotism were found to be publicly available, nepotism continues to exist within the Kenyan military and also the civil service. A lot of importance is placed on clan and family and media reports indicate that in certain parts of the country “many professionals working for the National Government do not apply for jobs in the counties despite their experience and knowledge in the management of public affairs due to what they term as vicious clan squabbles.” (Daily Nation 2014)

Promotions to senior ranks highlight what is seen as politicisation and ethnicisation of the military. For example, in 2010, there were significant issues around the circumstances under which three officers were recalled from retirement and handed military scholarships that would move them up to the ranks to colonel on completion, yet as noted, full colonels promoted from as far a back as 2006 were yet to attend any course (The Standard, 2010). No more recent cases could be found.

The system in place requires every service member, male or female, wishing to be promoted undergoes periodic vetting (Respondent 1). Respondent 5 points to equal opportunity as being a core issue despite the existence of an appointment system. On this basis, appointments are sometimes influenced by political and ethnic considerations.

A proposed amendment to the KDF Act is currently in Parliament for discussion. This bill reportedly seeks to clip the powers of the Cabinet Secretary in discharging constitutional duties (such as reporting to parliament) and also attempts to extend the term of the Chief of the Defence Forces (CDF). It further provides for mandatory introduction of the discretion of the President to extend the term of the CDF by one year.

Researcher + Peer Reviewer148:
Article 28 (2) of the Kenya Defence Force Act stipulates that in developing the criteria for the recruitment, promotion and transfer of members of the Defence Forces, the Defence Council shall consult with the Public Service Commission.

The Public Service Commission (2013) framework for development of career progression guidelines in the civil service underlines the following conditions:

o Academic/Professional qualifications, key responsibilities, core skills, and core competencies will be in-built in the job descriptions and specifications

o Promotion for officers who have fulfilled the minimum three (3) years prerequisite requirement for advancement to a higher grade will be dependent upon mastery and effective performance of the job

o An officer who fulfils the minimum requisite qualifications for promotion to the next higher grade but has not performed as per the agreed performance targets will work with the first and second supervisor on a work performance improvement programme with a view to bridge the gap. However, necessary measures will be put in place to ensure that the other officer registers sufficient improvement.

o Where officers are in a grade but do not possess the minimum requirements for the grade, they will hold such grades personal to themselves

o Competency tests will be administered at three levels, i.e. CSG10/9/8 (Entry levels); CSG7; CSG5.

According to the MoD website, the KDF also appears to make use of promotion exams.

Although no recent cases of nepotism were found to be publicly available, nepotism continues to exist within the Kenyan military and also the civil service. A lot of importance is placed on clan and family and media reports indicate that in certain parts of the country “many professionals working for the National Government do not apply for jobs in the counties despite their experience and knowledge in the management of public affairs due to what they term as vicious clan squabbles.” (Daily Nation 2014; Wrong 2014)

Service members are promoted through a process that requires them to pass the promotion exam and also to have served for the pre-requisite period (Respondent 1). According to the interviewee, the team responsible for promotions is ‘Board One’, which sits to appoint, promote, and post senior officers from the rank of major to lieutenant-general. The current Board constitutes the Defence Cabinet Secretary and Service Commanders of the Army, Air Force and Navy.

Researcher + Peer Reviewer148: Kenya has no policy of compulsory conscription. Recruitment into the armed forces is regulated by the Armed Forces Act. Voluntary recruitment is specified in Article 28 (3) of the Kenya Defence Forces Act, which states that: “The Defence Council shall advertise the chances allocated per county at least thirty days before recruitment.” Kenya is also a signatory to the United Nations “Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict,” ratified on September 8, 2000. In its declaration: &quoute;The Government of the Republic of Kenya declares that the minimum age for the recruitment of persons into the armed forces is by law set at eighteen years. Recruitment is entirely and genuinely voluntary and is carried out with the full informed consent of the persons being recruited.”

Researcher + Peer Reviewer148: There is no compulsory or voluntary conscription in Kenya.

Regulations against corruption are described in Article 124 of the Kenya Defence Forces Act (2012).
(1) A person subject to this Act who—
(a) engages in corruption, malpractices, or any act or omission while in the course of duty for selfish purposes or gains; or
(b) causes loss by their dereliction of duty,
commits an offence and shall, upon conviction, be punished, as the circumstances may require, in accordance with the provisions of the Penal Code (Cap. 63), the Anti-Corruption and Economic Crimes Act, 2003 (Act No. 3 of 2003) the law relating to public procurement and disposal of public property, or any other written law.
(2) The offence under subsection (1) shall be triable in the civil courts.

Acts of bribery, have nonetheless have continued during recruitment exercises. A media address by the Vice Chief of Defence Force Lt Gen Samson Mwathethe during an impending during recruitment exercise, highlighted the problem of use bribes to join the military. He noted that during the last five financial years, between 2010 to 2014, the Kenya Defence Forces (KDF) has recorded 144 corruption cases with 48 involved being KDF members and 96 civilian personnel. In terms of cost, the KDF members had gained Sh18 million, while the civilians gained 27.1 million through bribery. The recruitment drive in 2013 had 19 reported cases of corruption. Four out of the 19 involved KDF service personnel while 15 were civilians (The Star, 2014). There are attempts to tackle corruption in recruitment – a recruitment drive in 2015 would be overseen by 15 teams. As a result 54 military service personnel had reportedly been sacked over taking bribes. (Ombati 2015)

In the 2009/10 recruitment exercise, a total of Sh17.9 million was obtained as bribe involving 23 Kenya Defence Forces (KDF) personnel and 34 civilians. In the 2010/2011 period Sh7.5 million was given as bribe involving six KDF soldiers and 38 civilians. Subsequent decline was noted in the 2012/2013 period, with Sh7 million obtained in bribes involving 12 KDF soldiers and 10 personnel while in the last recruitment, 15 civilians and four KDF soldiers were involved in a Sh4.7 million scam.

Researcher + Peer Reviewer148: There has been no evidence of &quoute;ghost soldiers' in the Kenya Defence Forces though there have been such problems in the wider Kenya civil service.

The Integrated Payroll and Personnel Database (IPPD) presents various challenges, in terms of controlling payroll and personnel registries, skill inventories and budgeting of personnel emoluments. It is observed that the system is open to manipulation, a situation seen as the source of ghost workers in the public sector. An acknowledgement of existence of ghosts workers was established on the basis of the findings of a recent staff audit during which all civil servants (including Ministry of Defence's) were biometrically registered in an attempt to remove &quoute;ghost workers&quoute; from the government's payroll. The government has announced that over 12,500 names of government employees who failed to show up for the biometric registration have been considered as ghost workers (Kenya Forum, 2014).

According to Respondent 1, the system and staff audit within the defence sphere is very tightly controlled to allow for any ghost soldiers within the Kenya Defence Forces. However, given that the ghost worker is a syndrome in the wider public service payment system, there is a possibility that in the current payment system used ghost soldiers could occur.

In a recent comment: “Letter from Africa: Haunted by ghosts,” a journalist observes that the defence sector runs the risk of having ghost workers in the system, stemming from hundreds of soldiers who left military service more than seven years ago. There were said to transform themselves into invisible attritions that pocketed pay cheques (BBC, 2014). Further, as mentioned in question 38, the number of personnel is not accurately known.

RESPONSE TO PEER REVIEWER 2: Agree. However, as there have been some challenges with the payment system, a score of 4 would be too high. Score changed to 3 and sources added.

Researcher + Peer Reviewer148: It is likely that chains of command are strictly separated from chains of payment throughout the ministry and armed forces, though this is not explicitly stated as such as a published policy.

The Kenya Defence Forces Act underlines the role of the Salaries and Remuneration Commission in determination of remuneration and benefits for the military personnel.

Article 25: Determination of salaries
The Salaries and Remuneration Commission shall set and regularly review the remuneration and benefits of the Chief of the Defence Forces, the Vice Chief of the Defence Forces and three Service Commanders in accordance with Article 230(4) of the Constitution and the Salaries and Remuneration Act, 2011 (Act No. 10 of 2011).

Article 29. Terms and conditions of service of members of the Defence Forces
(1) The Defence Council shall, on the advice of the Salaries and Remuneration Commission, determine the salaries of the members of the Defence Forces.
(2) The Defence Council shall, in consultation with the Public Service
Commission, determine the conditions of service of members of the Defence Forces.

In terms of making salary payments, generally, the salaries for public servants and the military personnel are managed under the Integrated Payroll and Personnel Database (IPPD), an initiative created to help address the challenges of manual payroll administration.

Interview comments confirm separation of chains of command and chains of payment (Respondent 1).

Researcher + Peer Reviewer148: National anti-corruption awareness is undertaken under the framework of the Public Service Integrity Programme (PSIP) supported by the Ethics and Anti-Corruption Commission (EACC). Under this framework, all public institutions are expected to undertake the following: a) to develop specific Codes of Conduct and Ethics for their employee; b) to train Integrity Assurance Officers (IAOs) to offer technical guidance and carry out sensitization workshops on corruption (EACC 2007).

The Ministry of Defence and Kenya Defence Forces personnel are subject to the Leadership and Integrity Act, 2012 and the Kenya Defence Forces Act, 2012.

tUnder the Leadership and Integrity Act underlines the following:

Among the leadership and integrity codes specified include: financial integrity (Article 12), moral and ethical requirements (Article 13), gifts on benefits in kind (Article 14), wrongful and unlawful acquisition of property (Article 15), conflict of interest (Article 16), participation in tenders (Article 17) and public collections (Article 18).

tUnder the Kenya defence Forces Act

i) Article 124 specifies the corruption and economic crimes offenses in respect to a person who 1a) engages in corruption, malpractices, or any act or omission while in the course of duty for selfish purposes or gains; or 1b) causes loss by their dereliction of duty.

ii) Article 77 underlines obedience to the regulations are enforced through Standing Orders, such that:
(1) A person subject to this Act who contravenes, or refuses or fails to comply with, any provision of any standing or routine orders, being a provision that the person is aware of, or might reasonably be expected to be aware of, commits an offence and shall be liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any lesser punishment provided for under this Act.

There may, however, not have been a robust oversight mechanism on account of reported graft cases relating to recruitment exercises. For example, in the 2013/2014 year there were 19 graft cases reported involving Sh4.8 million (All Africa, 2014).

Interview comments support this view, noting that these measures remain unobserved or rather, ignored at best (Respondent 5).

Researcher + Peer Reviewer148: There are indications that some breaches of the code of conduct targeting lower level officers are addressed and some results of prosecutions are publicly available while others are not publicly available.

For example in October 2010, the Department of Defence uncovered a bribery scandal involving senior Kenya Defence Force Officers in the corrupt Sh1.6 billion purchase of armoured personnel carriers from South African company OTT Technologies (Pty) Ltd. Several high-ranking officers involved in this scandal were thus retired in January 2011 accused of taking bribes by OTT Technologies (Pty) Ltd, and the matter was referred for further investigation to Parliament.

More recently, the Vice Chief of Kenya Defence Forces reported that 48 military personnel who were involved in bribery cases relating to recruitment between 2010 and 2013 had either been sacked or charged in court. A separate story chronicled the arrest of a soldier after stealing and re-selling ammunition. (Nzioki 2015)

The results of prosecutions, are however, not publicly available.

Interview comments point to dismissals related to breaches of the Standing Orders (Respondent 1). The other key informant comments, however note that most of the cases addressed would be those targeting the lower ranking officers, while those touching on the seniors tend to be covered-up (Respondent 2).

Researcher + Peer Reviewer148: The Public Service Integrity Programme (PSIP), which is supported by the Ethics and Anti-Corruption Commission (EACC) is the broader framework for mainstreaming anti-corruption into the public sector, including the Ministry of Defence. Under this framework, the public institutions are expected to undertake the following: a) to develop specific Codes of Conduct and Ethics for their employees, and b) to train Integrity Assurance Officers (IAOs) to provide technical guidance on the implementation of anti-corruption programmes and carry out sensitisation workshops. Accordingly, during the period 2004-7, the Commission supported the training of 17,846 IAOs and managers in 48 public institutions, including those in the Ministry of Defence. The extent to which anti-corruption awareness training is mainstreamed into the Ministry is however not certain since no follow-up information is provided.

The EACC launched anti-corruption training for military and civilian personnel at the Kahawa Barracks on Wednesday, 18th March 2015. The training programme involved Training of Trainers to be deployed as Instructors in the various Colleges for Security Officers in Kenya.


RESPONSE TO PEER REVIEWER 2: Agreed. Score changed to 2 and sources added.

Researcher + Peer Reviewer148: Article 124 (2) of the Kenya Defence Forces Act stipulates that corruption offences shall be tried in the civil courts. Interviews indicate, however, that alleged offences are first investigated internally, and where a serious offence is established, the officer is dismissed and subjected to trial in a civil court just like any other citizen (Respondent 1). The assessor could not find a policy requiring the publication of the outcomes of prosecutions.

In one case, 25 Kenya Defence Force soldiers who had been sentenced to life imprisonment for desertion were set free. (Kosgei 2015) However, information on prosecution of most other cases (particularly those related to corruption) was not found. For instance, information extracted from the media show that in the most recent prosecutions, the cases related primarily to corruption in the recruitment. In a media brief, the Vice Chief of the Kenyan Defence Forces indicated that 48 military personnel who were involved in the scheme have either been sacked or charged in court (New Kenya, 2014), but giving no information about the outcomes of the cases. A 2015 recruitment exercise overseen by 15 teams resulted in 54 military service personnel being sacked over taking bribes. (Ombati 2015)

Researcher + Peer Reviewer148: According to the Business Anti-Corruption Portal, while “corruption, active and passive bribery, abuse of office and bribing a foreign public official are criminalised under the Anti-Corruption and Economic Crimes Act 2003, but facilitation payments are not addressed under law. Adequate enforcement of Kenya's anti-corruption framework is an issue as a result of weak and corrupt public institutions. (Business Anti-Corruption Portal 2015)

Section 39 (3a) makes it a crime for a person to corruptly receive or agree to receive a benefit.
Alternately, Section 39 (3b) makes it a crime for a person to corruptly give, offer or agree to give or offer a benefit.

The provision of Section 101 (1 & 2) of Chapter 63 of the Penal Code applies to offences relating to abuse of office:

(1)tAny person who, being employed in the public service, does or directs to be done under the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a misnomer

(2)tIf the act is done or directed to be done for the purposes of gain, he is guilty of felony and is liable for imprisonment for three years

There are various laws and mechanisms to punish offenders including the Kenya Defence Forces Act 2012, the Code of Conduct, the Kenya Constitution (Leadership and Integrity chapter), The Ethics and Economic Crimes Act, Public Officers Ethics Act 2003 but the implementation of these laws and mechanisms are ineffective.

Small bribes and facilitation payments still abound in Kenya (Atlantic Council 2015; Business Anti-Corruption Portal 2015; Bloomberg 2015) In a 2013 survey, Jones Day established two key issues relating to enforcement of anti-corruption regulations, namely lack of commitment by senior officials who see no difference between their personal gains and official duties, and unwillingness by the Attorney General to prosecute corruption cases involving high-level government officials because of political pressure and the lack of insulation.

Respondent 2 observes that no senior military officer has ever been arraigned in court over corruption although the department receives massive funding whose expenditures have been queried in the past.

Researcher + Peer Reviewer148: In Article 124 of the KDF Act, corruption and economic crimes are against the law. Corruption is also addressed by the Kenya Constitution 2010, Anti-Corruption and Economic Crimes Act 2003, Public Ethics Officers Act 2003 but there is no explicit and specific doctrine on this subject.

There is however no clear 'anti-corruption' doctrine as a strategic issue on operations. Respondent 1 stated that the Kenya Defence Forces (KDF) operational training and doctrine does not condone corruption. However, this could not publicly verified through publicly-available sources.


RESPONSE TO PEER REVIEWER 2: The references specified ( Kenya Constitution, Anti-Corruption and Economic Crimes, National Survey on Corruption and Ethics, Public Ethics Officers Act) do not appear to specifically address military doctrine. Score 1 has been selected on the basis that corruption is considered within the broader governance framework.

Researcher + Peer Reviewer148: The Public Service Integrity Programme (PSIP), which is supported by the Ethics and Anti-Corruption Commission (EACC) is the broader framework for mainstreaming anti-corruption into the public sector, including the Ministry of Defence. Under this framework, the Commission supported the training of 17,846 IAOs and managers in 48 public institutions, including those in the Defence during the period 2004-7.

There is however no known anti-corruption training for commanders. Further, evidence showed that officers engage in corrupt activities. For example, media reports indicated that two senior officers in the KDF were forced to resign over a military equipment procurement in 2010, and in 2012, three senior military officers of the rank of Major lost their jobs after being implicated in corruption during the recruitment exercise.

RESPONSE TO PEER REVIEWER 1: An examination of publicly available sources (including the MoD and National Defence College Website) did not show any specific training on anti-corruption.

Researcher + Peer Reviewer148: Generally, no evidence could be found to suggest that personnel are deployed to monitor corruption risk in the field. According to Respondent 1 and 2, all financial matters are handled at the Defence Headquarters. Apparently, even amidst allegations of corrupt practices, for example in respect to a report by U.N. monitors that accused Kenyan soldiers in the African Union peacekeeping force in Somalia of facilitating illegal charcoal exports from the port city of Kismayu, there is no corruption risk management protocol to monitor personnel in the field.


RESPONSE TO PEER REVIEWER 2: While reports by the Auditor General show AG staff to visit MoD sites, no evidence could be found to indicate they also visit missions regularly.

Researcher + Peer Reviewer148: There are no specific guidelines or training on corruption. According to Respondent 1, corruption related instructions are generally addressed within the Code of Conduct, which also cover a range of other professionalism and integrity issues. More specifically, in respect to peacekeeping, an examination of the Course Prospectus show that that the training offered by the International Peace Support Training Centre (IPSTC) in Nairobi (Kenya), which provides training for duties in a peacekeeping mission does not specifically address the issue of corruption. There is, however, a Peace Operational Logistics Course which teaches procurement and auditing for selected officers.

Researcher + Peer Reviewer148: Article 239 (4) of the Constitution prohibits the establishment of Private Military Companies: &quoute;A person shall not establish a military, paramilitary, or similar organisation that purports to promote and guarantee national security, except as provided for by this Constitution or an Act of Parliament.&quoute;

According to Respondent 1, citizens are not allowed to participate in private military activities.

Private security companies are regulated by the Private Security Bill from 2014.

The rising number of terror attacks and other incidents of insecurity in Kenya have resulted in an increased demand for private security. It is estimated that there are currently between 2 000 and 4 000 such companies operating in Kenya, which employ approximately 300 000 guards. (ISS Africa 2015)
They do not appear to be well regulated, according to ISS: “The lack of oversight within PSCs, and the lucrative nature of the sector itself, has resulted in stiff competition between service providers, with some companies now offering reduced rates. This has led to resulted in some security guards being exploited, as many employees are made to work for long hours, earning wages far below the required basic minimum wage and without overtime bonuses.”

Researcher + Peer Reviewer148:
Article 133 (2 to 4) of the Public Procurement and Disposal Act provide the following guidelines for open and restricted items:

2) The defence and national security organs shall manage their procurement and disposal on the basis of a dual list, covering items subject to open and restricted procurement and disposal methods respectively.

3) The defence and national security organs shall agree annually with the Authority on the category of restricted items to be included in the restricted list and on restricted procurement or disposal methods to be applied to each category of items on the restricted list.

4) The restricted list of items shall be subjected to classified audit by the Controller and Auditor-General or his appointee

An interviewee confirms that procurement of simple items is normally undertaken under the ordinary procurement process, while procurement of highly sensitive nature (military equipment) is conducted through a special process. (Respondent 1) However, no evidence could be found indicating that exempt procurement is independently scrutinised by any body.

Expenditure management, particularly large scale procurement decisions, have been hidden from public and even parliamentary scrutiny. Only the Defence and Foreign Relations Committee is mandated to scrutinise the defence and intelligence. (Business Daily, 2012; Otuki, 2015). The Kenyan government does not make public its military purchases.

The weakness of oversight was made evident in report of the Auditor which, indicate misuse of the process and lack of proper oversight. The report raised questions over the acquisition of 181 APC’s in his report for 2012/2013 financial year. The report says the acquisitions were made without subjecting the process to laid down accounting procedures to ensure value for money and financial probity (Standard Media, 2010). A later audit report for the 2013-2014 year only made reference to irregular procurement practices surrounding the acquisition of library books -- there was no further recent evidence indicating defence procurement is scrutinised by the Audit body.

The Kenyan Defence Forces Amendment Bill has been in discussion in the National Assembly for a considerable time. Although supporters claimed the bill will reduce corruption risks, budgetary approval of KDF expenditure would be granted separately by the Ministry of Defence with the approval of the National Assembly, the lower house of parliament, reducing the oversight of Defence Cabinet Secretary and that of the auditor-general's office. (Suckling 360, 2015; Mwangi, 2015) At the time of writing the bill had not yet passed into law.

A think tank report states that procurement in Kenya more generally has suffered from weak public procurement legislation and a lack of citizen oversight in procurement procedures which has resulted in enormous waste of taxpayers’ money. (Centre for Governance; no date)

Researcher + Peer Reviewer148:
The Ministry of Defence is generally guided by the guidelines in the Public Procurement and Disposal Act, 2012. The procurement process for major defence equipment is provided in the Ministry of Defence website, and comprises the following phases:

1)tIdentification of need done through a Strategic Defence Review. It is followed by a process of formulation of the operational and technical specification of the desired equipment

2)tMarket survey conducted, with the aim is to identify sources and establish contact with willing possible suppliers. This data is then presented to the Equipment and Infrastructure Approval Committee (EAIC) for approval and budget allocation. On approval a submission is made to Departmental Tender Committee and Treasury as usual to authorise Restricted Tendering

3)tDetailed tender documents are prepared, special evaluation instructions such as in-country Field and User trials are included. The trials require the equipment to be imported into Kenya and subjected to set tests by our troops in presence of the manufacturers or their representatives

4)tCost-benefit analysis is carried out to determine the winner of the tender

5)tContracting phase


Limited information is provided in respect to the following procurement phases:

a)tProcedures for bid evaluation, which is open to abuse through such processes as skewed evaluation, unfair disqualification of potential suppliers and interference from politicians

b)tProcedures for contract implementation, a phase that is open to abuse through such processes as variation of contract.

No information is provided in respect to phases of asset disposal.

Military procurement is very opaque and most of them are closed bids. (Respondent 1) Other sources confirm that the Kenyan government does not make public its military purchases (Otuki 2015) and so it is difficult to ascertain whether the specified procurement cycle process is followed in practice.

Researcher + Peer Reviewer148: Oversight mechanisms formally exist, but they are highly inactive and lack transparency. Interviewees also state that the manner in which the defence establishment procures goods and manages its budget still remain obscure to the public. (Respondent 3)

Article 49 of the Public Procurement and Disposal Act outlines legal provisions in relation to a contract for a procurement:

(1) The following shall apply—

(a) the Director-General, or anyone authorized by the Director General, may inspect, at any reasonable time, the records and accounts of the procuring entity and contractor relating to the contract and the procuring entity and contractor shall co-operate with and assist whoever does such an inspection; and

(b) the Controller and Auditor-General, or an auditor authorized by the Controller and Auditor-General, may audit the accounts of the procuring entity and contractor relating to the contract and the procuring entity and contractor shall co-operate with and assist whoever does such an audit.

The weakness of the auditor's oversight was made evident in report of the Auditor which, indicate misuse of the process and lack of proper oversight. The report raised questions over the acquisition of 181 APC’s in his report for 2012/2013 financial year. The report says the acquisitions were made without subjecting the process to laid down accounting procedures to ensure value for money and financial probity (Standard Media, 2010). A later audit report for the 2013-2014 year only made reference to irregular procurement practices surrounding the acquisition of library books -- there was no further recent evidence indicating defence procurement is scrutinised by the Audit body. New amendments to the Kenya Defence Force Bill are currently in the National Assembly. Although supporters claimed the bill will reduce corruption risks, budgetary approval of KDF expenditure would be granted separately by the Ministry of Defence with the approval of the National Assembly, the lower house of parliament, reducing the oversight of Defence Cabinet Secretary and that of the auditor-general's office. (Suckling 360, 2015; Mwangi, 2015) At the time of writing the bill had not yet passed into law.

Expenditure management, particularly large scale procurement decisions, have been hidden from public and even parliamentary scrutiny. Only the Defence and Foreign Relations Committee is mandated to scrutinise the defence and intelligence. (Business Daily, 2012; Otuki, 2015). The Kenyan government does not make public its military purchases. However, no evidence could be found indicating the the committee routinely exercises its role in practice.

According to a report in Nairobi Law Monthly, the Department of Defence (DoD) has consistently ignored the Public Procurement Oversight Authority (PPOA) when buying equipment, implying that procurement activities are essentially undertaken without any oversight. An example was a case involving KSh.360 million contract to service Puma helicopters in South Africa. Military officers had argued that the contract was too extravagant and servicing the helicopters could be done locally. However, Kenya Air Force (KAF) went ahead to spend Sh108 million as a down payment for the work.

A think tank report states that procurement in Kenya more generally has suffered from weak public procurement legislation and a lack of citizen oversight in procurement procedures which has resulted in enormous waste of taxpayers’ money. (Centre for Governance; no date)

Researcher + Peer Reviewer148:
There is evidence that many defence purchases are not made public and there is no security justification as to why this information is withheld.

While there have anecdotal reports occasionally of the government’s intentions to acquire certain equipment, the Kenyan government generally does not make its military purchases public. (Otuki 2015; Niaka 2014) For instance, in 2014, “the Kenyan government has unveiled plans to spend US$1 billion acquiring 10 new military helicopters, the refurbishment of three grounded Russian-made Mi-17 helicopters and the installation of closed circuit (CCTV) surveillance cameras in 10 cities in terms of a strategic five-year national security plan to secure the country against a series of terrorist attacks blamed on Somali Islamist militant group Al Shabaab.” (Nikala 2014) However, more recently, information regarding a US$ 29 million acquisition of arms from Serbia was brought to the media through reporting by the Stockholm International Peace Research Institute (SIPRI). (Otuki 2015)

Defence spending is generally considered a top security matter (Business Daily, 2012). Section 49 (3) of the KDF Act more broadly defines classified information as “any information whose unauthorised disclosure would prejudice national security and includes information on the strategy, doctrine, capability, capacity and deployment.”

It is on this basis that only the Defence and Foreign Relations Committee is mandated to scrutinise the defence and intelligence. To do this, they are required, upon assuming office, to subscribe to an oath of office where they will not be allowed to disclose sensitive information presented to it by defence forces officers to the public. Still, the Committee does not review the intelligence gathering and assessment priorities of the agencies. (Business Daily, 2012).

Under the specific items in the breakdown of the budget estimates, the programmes to be undertaken are listed under one item, labelled ‘Maintaining and Safeguarding of National Security’ (Business Daily, 2014). According to a report in Nairobi Law Monthly, the Department of Defence (DoD) has consistently ignored the Public Procurement Oversight Authority (PPOA) when buying equipment, implying that procurement activities are essentially undertaken without any oversight.

On the other hand, information on actual public spending at times becomes public on the basis of reports by the Auditor- General’s office and make its findings public. However, there are plans to limit access to official information through a Public Audit Bill that will classify findings on military, police and intelligence spending, restricting parliamentary access to private scrutiny through special committees, which will hinder dissemination of the information to citizens (Business Daily, 2015).

Researcher + Peer Reviewer148: The Kenya Anti-Corruption Commission (Now Ethics and Anti-Corruption Commission) prescribes the qualifications for award of contracts. These include requirements for the following:
tHave requisite qualifications and capacity
tHave legal capacity to enter into contract
tHave a status of insolvency
tHave no conflict of interest
tNot debarred
tHave a statement showing that the person is not debarred

Under Subsidiary L.N.38/2009 (18) of the Public Procurement and disposal ACT - Chapter412C, the basis for a debarment may occur on the ground that the person submits false, inaccurate or incomplete information about his qualifications, or if the person colludes, connives or is involved in fraudulent, corrupt and other dishonest practices or contravenes the provisions of the Actor any relevant provisions of a written law in order to get unfair advantage in the award of the public private partnership contract.

Further, Article 34 (2 to 4) of the Public Procurement and Disposal Act stipulates the considerations for technical requirements with respect to the goods, works or services being procured. These generally underline the performance and technical capabilities of the supplier.

Researcher + Peer Reviewer148:
Though procurement requirements are in part derived from a national defence and security strategy, the lack of transparency surrounding the strategy and procurement deals make it difficult to uncover how much procurement is conducted outside of the national defence and security strategy.

It is uncertain whether Kenya actually has a national defence and security strategy. If there is one, it is not made public. The Constitution sets out foreign policy and defence priorities. However, sources indicate that Kenya lacks a national defence policy or security strategy. (Wainaina 2015) Respondent 1 states that the country's defence policy has been formulated and primarily exists within the defence sphere; however, in actual sense even the relevant House Committee members may not be aware about it.

Information contained in the Ministry of Defence website in relation to procurement underline the following sequences for procurement of major equipment: The process of need identification is done through a Strategic Defence Review. This process identifies gaps in the defence posture. It is followed by a process of formulation of the operational and technical specification of the desired equipment.
Then this is followed by a market survey whose aim is to identify sources.

Article 133 of the procurement legislation outlines the following exemption and requirement which possibly allows procurement outside of the strategy as there is very limited oversight:

- Clause 2: &quoute;the defence and national security organs shall manage their procurement and disposal on the basis of a dual list, covering items subject to open and restricted procurement and disposal methods respectively.&quoute;

- Clause 4: &quoute;The restricted list of items shall be subjected to classified audit by the Controller and Auditor-General or his appointee.&quoute; (National Council For Law Reporting, 2010).


Further, Article 49 of the Kenya Defence Forces Act limits the right of access to classified information or information under the custody of the Defence Forces, where “classified information”means any information whose unauthorised disclosure would prejudice national security and includes information on the strategy, doctrine, capability, capacity and deployment.&quoute; This provision promotes lack of transparency in the sense of a limitation of right to access to information.

In 2015, SIPRI reported that Kenya had acquired $ 29 million on heavy arms from Serbia and that “Some of these purchases (in East Africa) may be related to the conflict in Somalia, or to perceived threats resulting from participation in the AU (African Union) mission there.” (Otuki 2015)
Key interviewee comments indicated that minor procurement details must pass through the Public Procurement Oversight Authority (PPOA). However, despite this requirement, procurement of major equipment still faces challenges, primarily because of the exemption of National Security and defence Procurements from the new regulations (Respondent 1).

The &quoute;Strategic Defence Review&quoute; remains out of the public domain, allowing procurement to be undertaken without complying with the requirements for an open, well-audited national defence and security strategy. For example, in a report to the Parliament’s Defence and Foreign Relations Committee in 2011, the Director General of the Public Procurement Oversight Authority mentioned that the Department of Defence ignored requests to submit its list of purchases for equipment worth Sh4.5 billion for scrutiny (Daily Nation, 2011).

A recently released report of the Auditor General (Standard Media, 2014) has raised questions over the acquisition of 181 Armoured Personnel Carriers that were made without subjecting the process to laid down accounting procedures to ensure value for money and financial probity.

According to a news article from 2014 &quoute;The AG's office says Kenyan military acquisition programmes have been dogged by corruption among top government and military officers. In January 2011, the KDF was forced to publicly justify its acquisition of 15 Jordanian fighter jets for the Kenya Air-Force (KAF) when most turned out to be mechanically defective&quoute;. (Nkala 2014)

Researcher + Peer Reviewer148: There is limited evidence indicating there is a formal procedure in place for defining purchase requirements.

The MoD reportedly has a Supply Chain Management department which is in charge of preparing an annual civil procurement plan. However, it no such evidence of a plan could be found for military procurement specifically.

There is some information on the procurement cycle that may be relevant to planning purchases:

“The contracting process is also critical in these cases because it ensures that issues of after sales Integrated Logistic Support (ILS ) is well covered to guarantee sustainability of the equipment in service. The aim of ILS is to achieve optimum equipment availability at minimum Life Cycle Cost by influencing design and procurement to meet the need of supportability. It is a whole life discipline for ensuring that In-Service Support requirements of new equipment are considered from the earliest stages of the procurement cycle, and are monitored and refined throughout the remainder of the life of equipment.”

Defence procurement appears to be based somewhat on identified requirements. For example, the capital expenditure budget projected to increase from US$149 million in 2015 to US$234.1 million by 2018, is mainly expected to revolve around helicopters, armoured vehicles, unmanned aerial vehicles and surveillance and monitoring equipment, to secure the porous borders with South Sudan and Somalia, and also to address the endemic problem of human trafficking through Kenyan land and sea borders (Land Forces East Africa, 2014).

However, historically, there have been cases where military purchases have not been based on clearly identified and quantifiable requirements. (The Nation 2010; 2011) An investigative report by Nairobi Law Monthly points to opportunistic acquisitions that are not based on requirements, manifesting in the procured goods not being used. For example, in a case regarding helicopters procured from China, questions have been raised after it became apparent that eight Chinese choppers delivered to Nairobi in January 2014 have not been used. (Freedom House 2012)

The 2012-13 Report of Auditor General indicates some evidence of poor purchasing decisions that could have been caused by unplanned purchases. The Report raises quality issues in relation to 32 Armoured Personnel Carriers (APCs) supplied in 2008 were deployed in Southern Sudan as part of the Kenyan contingent in UNMISS.

These are reported under Section 421 as follows:

o The design of the vehicles on the top part allows water to enter into the vehicle
o The pneumatic system especially on the braking system was found to be faulty causing leakages in a
few of the APCs
o No provision was made for spare tyres for the APCs and the tyres available cannot withstand a
puncture for any extra time
o The recovery vehicle lacks a rear door for easy access during stationery working
o Faults in gear selection system and power source problems
o Rust of some of internal parts which requires greasing and repainting
o The cover for the turret is worn out for all APCs

Overall, procedures are not followed in practice (see also question 11): According to the information contained on the Ministry of Defence website, the process of need identification is first done through a Strategic defence Review (a summary of which is available online). This is followed by a formulation of the operational and technical specification of the desired equipment. A market survey is then undertaken to identify sources and establish contact with possible suppliers. This data is then presented to the Equipment and Infrastructure Approval Committee for approval and budget allocation.

Researcher + Peer Reviewer148: Article 133 (2) of the Public Procurement and Disposal Act makes a provision for procurement on the basis of a dual list, covering items subject to open and restricted procurement. The procurement cycle is provided in the Ministry of Defence website specifies a process of market survey to identify sources and establish contact with willing possible suppliers.

The 2013-2014 Report of Auditor General made note of single source procurement for the procurement of books noting that “The procurement process was done through direct procurement method despite the fact that Kenyatta University is not the only supplier who could urgently supply these books.” The auditor did not report on other new procurement.

The report also indicates that in the past a large of procurement was undertaken through single sourcing or restricted tendering. The following transcations are noted:

420. Purchase of Thirty Two (32) APCs - The Ministry awarded the contract to a firm through restricted tendering at a contract sum of USD 16,368,703.66 or Kshs.1, 161,105,809.79

422. Purchase of Seventy Five (75) APCs - The Ministry awarded contract to a firm through restricted tendering at a contract sum of Euros 22,406,926.00

423. Purchase of Seventy Six (76) APCs - The Ministry awarded the contract to a firm through Direct Procurement at a contract sum of US$ 51,584,235.00


According to Respondent 1, simple procurement (minor procurement) are generally undertaken as open competition, whereas procurement major equipment or is mostly done through single sourcing. What and where it is bought largely depends on what is available and who is offering it for sale.

Researcher + Peer Reviewer148: In general, an examination of the Public Procurement and Disposal Act show that tender boards are subject to audit at two levels:

1)tReview Board: - Article 25 (1) of the Act establishes a Public Procurement Complaints, Review and Appeal Board (PPCRAB) to address complaints

2) tInspections and audits relating to contracts:- Article 49 provide for inspection by the Controller and
Auditor-General

In Section 5. (1) of the Public Audits Act, the requirement is that, for each financial year, each receiver of revenue shall prepare accounts in respect of the revenue in respect of which the receiver of revenue is appointed and submit the accounts to the Controller and Auditor-General. However, it is unclear whether audits of tender boards and contracts are conducted regularly.

The PPARB appears to make public some documents related to procurement appeals, including those involving the MoD. However, whether this is done comprehensively is questionable. For instance, an appeal for review could be found regarding a contract for the provision of beef and bread for units in Mombasa (Public Procurement Complaints, 2014) though no other appeals related to the defence ministry could be located on the PPARB website.

According to Article 133 (2 to 4) of the Public Procurement and Disposal Act defence and national security organs shall manage their procurement and disposal on the basis of a dual list, covering items subject to open and restricted procurement and disposal methods respectively. Although, the restricted list of items is supposed to be subjected to classified audit by the Controller and Auditor-General or his appointee, no evidence could substantiate this occurs in practice. This also makes it difficult to ascertain whether tender boards overseeing secret procurement are subject to different regulations than standard government-wide procurement law.

The effectiveness of the Auditor General may be determined on the basis of the Annual Reports. For example, for 2012/2013 financial year, the Auditor General has raised questions over KSh.360 million contract to service Puma helicopters in South Africa. Military officers had argued that the contract was too extravagant and servicing the helicopters could be done locally. However, Kenya Air Force (KAF) went ahead to spend Sh108 million as a down payment for the work. The Reports of the Auditor General however may not be automatically published, but only become public when it is subjected to Parliamentary scrutiny, which make the findings public (Business Daily, 2015).


RESPONSE TO PEER REVIEWER 1: It remains unclear whether secret defence procurement bids are overseen by tender boards which are subject to regulations and codes of conduct. Given the lack of transparency a score of 3 cannot be awarded.

Researcher + Peer Reviewer148:
There are national laws, but no laws specific to defence sector on collusion. Generally, the defence sector is also guided by the provisions of the national laws. Offences relating to collusion in defence procurement are those specified under Article 42 in the Public Procurement and Disposal Act. These include colluding in relation to the following: a) to make any proposed price higher than would otherwise have been the case; b) to have that other person refrain from submitting a tender, proposal or quotation or withdraw or change a tender, proposal or quotation; or c) to submit a tender, proposal or quotation with a specified price or with any specified inclusions or exclusions. The specific sanctions specified are disqualification from entering into a contract for the procurement; or cancellation if a contract has already been entered.

An examination of the Ethics and Anti-Corruption Annual Report and the website of Public Procurement Oversight Authority do not show any sanctions or cases relating to collusion offenses.

There is no hard evidence of collusion for defence and security contracts. Interview comments though point to compliance problems, because tenders awards tend to be given to companies run through proxies of people within the defence or government (Respondent 5).

Researcher + Peer Reviewer148: The Corruption Prevention Guidelines for Procurement used by the government include a section on staffing which states that “The Procurement unit should be manned by procurement professionals with sufficient training in procurement and stores. (Kenya Anti-Corruption Commission and Public Procurement Oversight Authority 2009) Whether this is implemented in practice in the defence establishment is uncertain. According to Respondent 1, Human Resource departments in the respective services are responsible for coordinating and implement plans on personnel matters, and also in ensuring that there are sufficient and well trained staff, including logistics and relevant supplies personnel (Respondent 1).

For example, in the Navy, after the Basic Naval Training, there are personnel that get designated as Supply Trainees. This group first undergo a 36 weeks training on supply theory after which they sit for class III exams . They are then posted to the departments as Class II, employed as stores accountants and undergo on-job training within the departments. They spend a further 6 weeks on upgrading course at Navy Training School and sit for Class II upgrading examinations. Afterwards they are further attached to the departments as Class II stores accountants for a period of 32 weeks. They are then programmed for an Upgrading Course at Navy Training School for 6 weeks, after which they sit for Class I upgrading examination qualifying as Class I Stores Accountants.

Procurement personnel work under the Supply Chain Management Division, which is tasked with overseeing procurement activities in the Ministry, and also provides secretarial services to the Ministerial Tender Committee. The staff are rotated after 3 years in the respective departments.

The procurement staff are authorized to make spending and buying decisions for procurement of minor items and services. However, the procurement for major defence equipment, as outlined in the Ministry of Defence website, is through the process of need identification known as Strategic Defence Review.

Interviewees state undue influence in the procurement does occur, usually by way of companies fronted by people within the defence or government (Respondent 5). According to media sources, “The AG's office says Kenyan military acquisition programmes have been dogged by corruption among top government and military officers. In January 2011, the KDF was forced to publicly justify its acquisition of 15 Jordanian fighter jets for the Kenya Air-Force (KAF) when most turned out to be mechanically defective.” (Nkala 2014)

Researcher + Peer Reviewer148:
The Public Procurement and Disposal Act (Articles 93 to 100) outline the process for handling complaints, reviews and appeals stemming from procurement practices. The procurement laws require that complaints be submitted directly to the Public Procurement Administrative Review Board (PARB). More specifically, according to Section 7.3 of the PARB review procedure, the types of reviews to be determined by the Board include:
(a) Review against the decision of the procuring entity
(b) Review against the decision of the Director-General
(c) Review against debarment

Public information is not available on the extent to which bidders use or refrain from using this mechanism. The PPARB appears to make public some documents related to procurement appeals, including those involving the MoD. However, whether this is done comprehensively is questionable. For instance, an appeal for review could be found regarding a contract for the provision of beef and bread for units in Mombasa (Public Procurement Complaints, 2014) though no other appeals related to the defence ministry could be located on the PPARB website.

Although a complaint system for public procurement exists, interviewees indicate that most bidders tend to refrain from challenging procurement decisions since potential drawbacks of lodging an appeal include disadvantage in future procurement (Respondent 2).

Researcher + Peer Reviewer148:
Part IX of Article 115 (1a to 1e) of the Public Procurement and Disposal Act specifies debarment from participating in procurement proceedings as the principle form of sanction, for a period of time of not less than five years, as may be specified by the Director-General (Section 3).

In this respect, the Director-General, with the approval of the Advisory Board, may debar a person from
participating in procurement proceedings on the ground that the person—
(a) has committed an offence under this Act;
(b) has committed an offence relating to procurement under any Act;
(c) has breached a contract for a procurement by a public entity;
(d) has, in procurement proceedings, given false information about his qualifications; or
(e) has refused to enter into a written contract as required under section 68.

The Public Procurement Oversight Authority website indicates two firms debarred from participating in the supply activities. The debarment notice indicates that both were blacklisted on the grounds of giving false information about their qualifications in a procurement proceeding. It is unclear to what extent defence companies or contractors are included in these lists.

Researcher + Peer Reviewer148: According to Respondent 1, the Kenya Defence Forces (KDF) does not have offset contracts; rather the military deals with the country that is offering what they require at a reasonable cost, with most of the heavy military-ware purchased being the used ones.

The database from the Arms Transfers Database from the Stockholm International Peace Research Institute (SIPRI) indicates that the country made acquisitions from a mix of countries between the years 2010 and 2013, including China, France, Germany, Jordan, Russia, South Africa, Spain and United States.

Researcher + Peer Reviewer148: The Kenya Defence Forces (KDF) does not have offset contracts; rather the military deals with the country that is offering what they require at a reasonable cost, with most of the heavy military-ware purchased being the used ones (Respondent 1).

The database from the Arms Transfers Database from the Stockholm International Peace Research Institute (SIPRI) indicates that the country made acquisitions from a mix of countries between the years 2010 and 2013, including China, France, Germany, Jordan, Russia, South Africa, Spain and United States.

Researcher + Peer Reviewer148: The Kenya Defence Forces (KDF) does not have offset contracts; rather the military deals with the country that is offering what they require at a reasonable cost, with most of the heavy military-ware purchased being the used ones (Respondent 1).

According to the Arms Transfers Database from the Stockholm International Peace Research Institute (SIPRI) indicates acquisitions from a mix of countries between the years 2010 and 2013. These included China, France, Germany, Jordan, Russia, South Africa, Spain and United States; the weapons categories comprising aircraft, armoured vehicles, engines and ships.

Researcher + Peer Reviewer148: In Article 31 (1a to e) of the Public Procurement and Disposal Act, the criteria required to be awarded contract for public procurement do not provide specific regulations which govern the use of agents in connection with defence procurement.

An analysis of media coverage on defence procurement show no evidence over the recent past of the use of ‘formally’ recognised agents, akin to the period in the early-to-mid 2000, which had widespread use of agents in security related procurement contracts. This is partly attributed to loss of ground by corruption cartels previously known for influencing security-related procurement deals at the Department of Defence, following the appointment of of a new Chief of Defence Forces.

The military use procurement procedures which do not involve agents in procurement contract. According to Respondent 2, however, politically connected individuals are involved in or influence lucrative arms procurement (Respondent 1). This was an approach that was used by the past regime, mainly during the time of President Daniel arap Moi (Respondent 2).

Researcher + Peer Reviewer148: Details of the financing package are not publicly available. Access to detailed information on military expenditure remains restricted on account of national security (Respondent 1). Beyond the summarised information about what is allocated to the defence sector, there are no information about expenditure surrounding major military items (Respondents 1 and 2).

The restriction to defence finance information is governed under the framework that deals with classification of information, where, as defined in Article 2b of the National Intelligence Service Act, 2012, “‘classified information’ means information of a particular security classification, whose unauthorised disclosure would prejudice national security.” In accordance with Article 37 (3 and 4), the Cabinet Secretary in this respect may by regulations determine the categories of security classification, the four categories in order of ranking being: top secret, secret, confidential and restricted.

Researcher + Peer Reviewer148:
An examination of the “Corruption Prevention Guidelines in Public Procurement,&quoute; upon which the Ministry of Defence derives its procurement guidelines do not show a requirement for the main contractor to ensure that subsidiaries and sub-contractors adopt anti-corruption programmes, rather an emphasis is placed on three aspects: procurement methods, procurement process and institutionalisation of corruption prevention strategies (on the part of the procuring entity).

According to Respondent 1, the standards of integrity do not require anti-corruption programmes for subsidiaries and sub-contractors.

Researcher + Peer Reviewer148: An examination of the Arms Transfers Database from the Stockholm International Peace Research Institute (SIPRI) indicates acquisitions from a mix of countries between the years 2010 and 2013. These included China, France, Germany, Jordan, Russia, South Africa, Spain and United States; the weapons categories comprising aircraft, armoured vehicles, engines and ships. There is nonetheless limited indication, if any, that there is much political influence in connection with supply of military ware and equipment. (Otuki 2015) Thus, for example, according to Strategy Page (2012), when Kenya was looking for aircraft it could use as bombers, it found what it needed in Jordan, which was selling some old F-5s.

Though no recent evidence was found regarding seller influence, in 2008 there was a Wikileaks cable that showed that the US had influenced the government of Kenya to buy US manufactured M-16A4/M-4 carbine rifles rather than the Chinese-manufactured equivalent to fight terrorism. The report stated that &quoute;The completion of this sale would represent one of the largest of its kind in sub-Saharan Africa with a low risk of unauthorized proliferation&quoute;. There was also a report in wikileak that the US Ambassador influenced the cancellation of the purchase of F-5 jet fighters for the Kenya Air Force. In February 2011, KDF was forced to defend itself against allegations that tender regulations were short-circumvented to help a South African defence equipment manufacturers firm win a tender to supply an undisclosed number of APCs.

According to Respondent 1, the Kenya Defence Forces (KDF) rely on a wide range of sources for military ware and equipment, with price rather than political influence being the underlying consideration. With most of military-ware purchased being the used ones, the predominant factor KDF in purchase is does not discriminate but rather choose to deal with the country that is offering what they require at a reasonable cost. (Respondent 1)


RESPONSE TO PEER REVIEWER 1: This question inquires about “political influence of selling nations” which is different from politically connected persons operating within the country.

RESPONSE TO PEER REVIEWER 2: The information you provide does not reflect recent developments (i.e. the last 2-3 years) and therefore this must be incorporated into scoring.