Tuju asks MPs to strip Treasury power to determine amount to be sent to EADB Bank

“Giving discretion to the Cabinet Secretary to determine the quantum amount to be transferred from the Consolidated Fund to EADB is giving the ‘holly’ CS a blank cheque,” Mr Tuju said.

“This amendment Bill will stop Parliament from asking where the taxpayer’s money has gone and how it has been spent.”

Mr Tuju appeared before the committee chaired by Molo MP Kuria Kimani to present his views on the Bill that is currently undergoing public participation.

The Bill, sponsored by Leader of Majority Kimani Ichung’wah, seeks to require the approval of the National Assembly prior to the Treasury Cabinet Secretary authorising transfer or issuance of public funds from the Consolidated Fund to the EADB.

Currently, the Cabinet Secretary can authorise the release of public funds to the regional lender without the approval of the National Assembly, a gap that the proposed changes seek to cure.

Mr Tuju asked the committee to amend the Bill to remove immunity that the directors, staff and consultants of the EADB enjoys from civil prosecutions.

Immunity from civil prosecution

The Bill proposes that the bank shall enjoy immunity from every form of civil prosecution except in any case where it has expressly waived its immunity in writing, when it may be sued in a court of competent jurisdiction in a Member State in which the bank has an office, and has appointed an agent for purposes of accepting service or notice of process.

“The immunity is helping EADB and its directors to evade civil and criminal prosecutions,” Mr Tuju said.

“Kenyan taxpayers should know that the highest heist is preceded by an Act of Parliament. Goldenberg and Angloleasing scandals that straddle the regimes of Daniel Arap Moi and Mwai Kibaki were enabled by the Manufacturers Act, Compensation Act and Restricted tendering Act.”

Section 48 of the EADB Act stipulates that all directors, alternates, officers and employees of the Bank shall be immune from civil process with respect to acts performed by them in their official capacity, and shall be accorded such immunities from immigration restrictions or alien registration, and, where they are not citizens of a Member State, such facilities in relation to exchange regulations as are accorded by Member State to the representatives, officials and employees of comparable rank of other Member States.

The Act also states that experts or consultants rendering services to the Bank shall be accorded the same immunities and privileges, unless the Member State concerned determines otherwise.

Mr Tuju also asked the committee to remove a section in the Bill that requires Parliament to approve disbursements to EADB within 30 days of a request being tabled by the Treasury Cabinet Secretary, failure to which it will be deemed to be approved.

“Subject to section 4, the relevant committee of the National Assembly shall consider and table its report within 30 days from the date on which notification for approval was sought,” the Bill states.

“If, after expiry of the period specified in subsection 5, the National Assembly has not passed a resolution, the approval shall be deemed to have been given.”

Mr Tuju said the immunity being accorded to EADB is not enjoyed by the International Monetary Fund (IMF) or World Bank.

He criticised the Bill, noting that it does not require the EADB to be audited by the Auditor General or subjected to the oversight of the Central Bank of Kenya, which regulates all banks.

“The most offensive section in this Bill is that Parliament is being directed to approve notification for withdrawal of monies from the Consolidated Fund to EADB within 30 days or it be deemed as approved. This is notwithstanding if the House is in recess or has been dissolved to pave the way for elections.”

“The mischief that must be approved within 30 days has to be addressed by this committee.”

Mr Kimani said the committee will invite directors of the EADB and the National Treasury Cabinet Secretary John Mbadi to explain why the bank should be accorded immunity from civil proceedings and whether the bank has been using the same to evade criminal prosecutions.

“Giving Parliament 30 days to approve a notification for transfer of funds to EADB will be a first in this country. Even Article 223 of the Constitution gives the Treasury power to spend money not appropriated by Parliament but they must seek approval within two months,” Mr Kimani said.

“We will be inviting directors of EADB and the National Treasury Cabinet Secretary to provide a schedule of all disbursements to the bank from 2014 as directed by the High Court.”

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