The Government of Kenya voluntarily agreed and promised to make the payment to Universal Satspace (North America) LLC that was authorised by the President on May 16, 2014.
In a mediation conducted in February 2013, a representative from the office of the Attorney General made a promise binding Kenya to pay. When Kenya refused to fulfil this voluntary promise to pay, it was taken to court.
On December 20, 2013 a judge in a London High Court entered judgement against the Kenya Government. The Deputy Solicitor General of Kenya was the advocate representing the country before the High Court in London. He told the judge that the debt was the result of corruption. The court rejected this argument because Kenya had agreed to pay the debt before the mediator.
After judgement and interest was entered against Kenya, the Deputy Solicitor General asked for permission from the judge to appeal against the judgement. His application was dismissed because Kenya had agreed to pay the debt before the mediator.
Universal Satspace (North America) LLC then demanded to be paid the costs of the suit amounting to 75,000 pounds. The Deputy Solicitor General was not prepared to deal with this issue.
He offered no answer; instead he asked for more time to put in written arguments. The judge rejected his application and awarded costs of £60,000.
From December 20, 2013, the Government of Kenya was aware of this judgement debt. It was aware it had been denied the right to appeal and payment was due and interest was accumulating.
Why and when did this debt metamorphose into an emergency that required the intervention of no less than the President, five months after the fact?
The payment has been made without a single witness ever appearing in any forum to give evidence. The payment was made under the public authorisation of the President. Before the President issued the public authorisation, and before payment was made, the Attorney General and the Cabinet Secretary in charge of Finance had already signed a written commitment that Kenya would pay the debt by April 28, 2014.
Under the Constitution there are only two bodies that can authorise payments out of public funds. Parliament and the Controller of Budget. These two bodies can only exercise this power through an Act of Parliament. Article 206 (2) of the Constitution stipulates that money can only be withdrawn from the Consolidated Fund through an Act of Parliament, or if it is authorised by the Constitution to be paid out of the Consolidated Fund.
Before money can be withdrawn from the Consolidated Fund, the Controller of Budget must give his approval. He is the ultimate signatory or authority for payments made from public finances under Article 206 (4) of the Constitution.
If this payment was made on May 19, 2014, if it was not approved by Parliament, if no law was passed to authorise such approval, if the Controller of Budget did not give his nod of approval, every person involved has violated the Constitution. Even if the payment was urgent, 150 days later, the Constitution makes special provision for emergency payments. Article 208 creates the Contingencies Fund.
This fund can only be established and operated under an Act of Parliament. Only the Cabinet Secretary in charge of Finance has powers to take an advance from the Contingencies Fund if there is an urgent and unforeseen need for expenditure. Parliament will then approve the advance withdrawal.
Decisions were made and actions taken to bypass Parliament and the Controller of Budget in making this payment. The Constitution was violated. Will the persons responsible be held to account?
The writer is an advocate of the High Court of Kenya
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