What should we make of the recent attempts to amend the Kenya Defence Forces Act 2012?

Some of the provisions were covered in the media as an attempt to shield the KDF from oversight. Analysts have on the other hand suggested that the media misunderstood the new provisions.

As usual, the media itself has provided little context for this discussion. Nor is it obvious, as it should be with any proposed law, what problem it seeks to remedy. I will focus on the financial provisions (surprise!) of the proposed amendments.

By way of context, let us start by recognising a few facts. The first is that, currently, the Ministry of Defence is where the KDF budget is located. Although the 2012 Act required that KDF have its own vote (separate budget), that has never actually been done. This turns out to be important, as we will see presently.

The second fact is that the Ministry of Defence does not currently present any information about its development allocation in the annual budget. This is not the product of any law, but rather a customary practice to shield security investments from review.

Neither the current Act nor the amendment Bill speak directly to this weighty matter of oversight.

Third, the recurrent budget for KDF that is published annually is a small set of single line transfers from the Ministry of Defence with no breakdown. In 2015/16, the budget for KDF is Ksh91 billion. Of this, Ksh75 billion goes to a single budget line for “Headquarters.” Another Ksh15 billion goes for a single line to “Modernisation.”

There is no breakdown of these items, so it is not possible to determine how much goes to “compensation to employees,” for example, which is typically shown in every programme budget and can hardly be considered a state secret.

Finally, the last couple of audit reports have chastised the Ministry of Defence for failing to provide any breakdown of expenditure for KDF. In 2013/14, no income and expenditure statements were provided and the Office of the Auditor General was given a block figure of Ksh73 billion to audit.

As the OAG notes, this is in violation of the KDF Act 2012, sections 289(1) and 289(2).

These then are the four facts that we should know before we look at the proposed amendments. If we were to approach legislation from the perspective of solving problems, we would think that the biggest of these are that the KDF budget is opaque, and does not provide adequate information to the OAG for end-of-year audit.

However, if we look at the proposed changes, they are not intended to address these problems.

The first proposed amendment to the financial provisions is to eliminate the requirement of the KDF Act for KDF to have its own vote. Since this has never been followed anyway, it will simply leave us with the status quo.

We may ask why this issue of a separate vote was ever important. Some have argued that the purpose of the separate vote in the 2012 Act was to allow parliament to directly set the KDF budget. If so, it is not clear that this was a particularly well thought out change.

First, KDF typically takes around 98 per cent of the total Ministry of Defence budget. How much more secure would KDF’s share of the security sector be if parliament decided on that percentage directly?

Second, the Public Finance Management Act requires parliament to appropriate at the programme level, not the vote level. Since KDF is effectively a programme (or two) within the ministry, parliament decides directly on its budget already, without the need for a separate vote.

It is therefore not particularly important that KDF be kept as a separate vote from the perspective of ensuring its budget. However, items with separate votes in the budget tend to present a far more detailed breakdown of their spending plans than the KDF does.

In this sense, if KDF were to have its own vote, it would have to provide more information than it currently does, in line with the details provided by bodies like the Teachers Service Commission.

Given the lack of transparency of the KDF budget, keeping the separate vote may actually be a good thing. Moreover, the removal of the separate vote has become the justification for removing the very section (289, as we saw above) of the law that requires separate financial reporting by KDF.

So, rather than respond to the OAG’s complaints about its inadequate financial reporting, the backers of the amendments prefer to remove the sections with which the OAG browbeats them.

This again is at odds with the notion of using legislation to solve existing problems. Public interest demands better legislation.

Jason Lakin is Kenya country director for the International Budget Partnership. E-mail: jason [email protected]