Ishiombo Rantings: FIGHTING THE COVID-19 PANDEMIC IN KENYA – PUTTING ACCOUNTABILITY & TRANSPARENCY AT THE FOREFRONT

The Government of Kenya – like many other countries - faces an unprecedented crisis for which it has instituted certain measures to respond, in order to secure its population. Since 29th January 2020, when the WHO declared the 2019-nCoV outbreak a public health emergency of international concern, countries started rolling out evolving strategies to curb the pandemic’s ravaging consequences in a fluid and fast paced environment. Governments have ramped up public spending – through domestic funding, grants, loans and in-kind donations from the global & local community – to contain the pandemic, address macro-economic shocks and mitigate socio-economic implications. As per the President's 9th COVID-19 speech on 23rd May 2020, Kenya had pumped approximately USD 502.1million into the economy to soften the effects of the Coronavirus pandemic on the economy.

As with other pandemics, an increase of corruption risks and practices is often likely, contributing to illicit financial flows[i] not only in countries that have weak financial management & oversight institutions and capacity[ii]. Given the need to respond rapidly, ideal mechanisms are wrongly assumed to stifle the Governments’ ability to respond. In New York, United States of America – in the context of a global shortage of ventilators - an executive order was issued to allow the State Government to pay USD 69.1 m for the delivery of ventilators prior to the goods being received and without the requisite due diligence on the “supplier”[iii]. Ideally, the state would have issued an RFP, performed due diligence on the selected supplier and waited to receive the ventilators before making payment. Whereas the state eventually terminated the contract after the supplier failed to deliver, it is unclear whether any state funds were lost.

Post the Ebola Crisis of 2014, Transparency International stated inter-alia that weak public financial management systems coupled with high levels of corruption in the [recipient] countries created many avenues for the abuse of power, bribery and unethical actions that limited the ability of funding to be used effectively to stem the outbreak. Given that so much money flooded into the region in a short period of time, accountability for those funds needed to shoot to the top of any list of priorities[iv]. However, for most practitioners, governance issues took a back seat until it was too late.

Closer to home, a brief to the National Assembly in response to a letter ref no NA/DCS/HEALTH/2020/023 of 24^th April 2020 regarding updates on COVID-19 funds threatened to derail the fight against the pandemic with Transparency International and the general public asking the Government to account on utilization of COVID funds[v]. At the said date, the MoH indicated that it had negotiated KES 8,077,320,434 (approx 80m USD) towards various health related interventions from the GoK and other donors such as the WB, Global Fund & Gavi plus in-kind contributions from Jack Ma Foundation & others. As the government struggled to make up for plummeting revenues by reprogramming activities and seeking assistance from development partners and the local community, it was not lost to the population that the funding received included in part utilization of KES 4m for tea & snacks, KES 70m on communication & airtime and KES 42m on leasing of ambulances which was considered wasteful and insensitive to the crisis.[vi] The allocation for tea & snacks was reminiscent of the oft quoted Hutton v West Cork Railway Co (1883) case at the UK Court of Appeal [vii] in which Lord Justice Bowen pragmatically concluded that “Although the law does not say that there are to be no cakes and ale, but there are to be no cakes and ale except such as are required for the benefit of the company.” In response to accountability concerns, the said report was later retracted without providing further information to reassure the populace that funds & contributions were being spent for purposes intended leading pundits to point to a looming scandal around the COVID funds.

This pandemic is particularly challenging with stay at home orders, lockdowns and inability for Government staff to perform what would be routine due diligence procedures. However, the GoK can overcome the structural challenges posed to not only fight the pandemic but also institute safeguards that minimize misuse, misappropriation and ensure value for money. Traditionally, the audit of any institution’s finances would normally take place when an activity for which funds have been provided has been completed and financial statements are submitted for auditing purpose. However, due to public sensitivity and a sudden surge in the inflow of funds/in kind contributions, it would not be unusual for Supreme Audit Institutions to carry out ex-ante procedures & audits as and when such funds/in kind contributions are being disbursed. Generally, this is to ensure that public funds allocated – irrespective of the source - are fully and solely directed to the cause at hand and where there are anomalies, that these are promptly dealt with.

The Institute of Certified Public Accountants of Kenya has opined that corruption and theft of public funds not only drains public resources but also harms the government’s ability to provide adequate healthcare (including fighting the pandemic) and erodes public trust. The institute suggests practical ways[viii] where beyond simply a medical response, the Government may define acceptable financial management standards if it is to succeed in addressing what is the Government’s largest challenge since independence.