Reports

Kenya Mid-Term Report 2016- 2018 (Year 1)

Country : Kenya
Dates Under Review : July 2016- June 2017
Report publication year : 2018
Researcher : Caroline Othim

Overview - Kenya Mid-Term Report 2016- 2018 (Year 1)

Kenya has made commitments in critical areas of governance. However, implementation remains limited due to financial and capacity constraints. The next action plan should focus on defining steps and goals for each commitment, and ensuring sufficient resources for full implementation.

Process 

A new OGP Steering Committee comprised of civil society, private sector, and government agencies functioned as the multi-stakeholder forum during the co-creation process. However, formal consultations were delayed and lacked sufficient awareness raising beforehand. During implementation, ad hoc consultations occurred between civil society and government actors, but some civil society stakeholders raised concerns over the government’s commitment to openness and accountability.

Kenya Did Not act contrary to OGP process

A country is considered to have acted contrary to process if one or more of the following occurs:

  • The National Action Plan was developed with neither online or offline engagements with citizens and civil society
  • The government fails to engage with the IRM researchers in charge of the country’s Year 1 and Year 2 reports
  • The IRM report establishes that there was no progress made on implementing any of the commitments in the country’s action plan

Level of Input by Stakeholders

During Action Plan Development
Y1
No Consultation
Inform
Consult
Involve
Collaborate
Who was involved? 
Civil Society Involvement
Beyond "governance" civil society
Mostly "governance" civil society X
No/little civil society
Narrow / little government consultation Primarily agencies that serve other agencies Significant involvement of line ministries and agencies
Government Involvement

Seven agencies were consulted and proposed commitments. However, 17 agencies, as well as county governments and both the legislative and judicial branches are responsible for implementation. The CSOs invited to the Steering Committee were limited to those based in Nairobi, and many came from international organisations. The government did not consider geographic diversity or inclusion of smaller, Kenya-based CSOs. 

OGP Co-Creation Requirements Followed 

Commitment Performance 

While several commitments saw substantial implementation by the end of the first year, others were limited due to financial and capacity constraints. While the passage of the Access to Information Act (Commitment 8) is a major achievement, future action plans should ensure the Act’s full implementation.

Commitment Completion 

Current Plan
Year 1: 0%
2011-2013
Year 1: 0%

Commitment Ambition 

Current Plan
Year 1: 38%
2011-2013
Year 1: 63%

Starred commitments 

Current Plan
Year 1: 25%
2011-2013
Year 1: 22%

IRM Recommendations 

  1. Improve the action plan development process.
  2. Address commitment implementation challenges.
  3. Full implementation of the Access to Information Act.
  4. Open contracting and beneficial ownership transparency.
  5. Expand and protect civic space and civil liberties.

Commitments Overview

Commitment Title Well-designed * Complete (Year 1) Overview
1. Transparent and participatory climate policies No No During the first year of implementation, and Parliament ratified the Paris Agreement, established a multi-stakeholder Climate Change Council and Directorate, and drafted a climate change policy. However, implementation has been challenging regarding the appointment of CSO representatives to the Climate Change Council.
2. Preventive and punitive mechanisms against corruption No No This commitment aims to improve national anticorruption policies. However, most of the proposed activities are aspirational and do not include specific steps to measure progress.
3. Legislative transparency in Parliament and County assemblies No No This commitment seeks to provide citizens with more opportunities to review and engage draft legislation and offer input on public policies. While a CSO has developed the bill-tracking platform “Dokeza”, it does not allow for bill tracking at the county level.
4. Publication of oil and gas contracts Yes No During the first year of implementation, the Petroleum Bill, which requires a framework for reporting revenues, has been passed. However, no progress has been made on releasing data, contracts, or financial information.
✪5. Transparency around bids and contracts by individuals Yes No The Companies (Amendment) Act was passed in July 2017, introducing beneficial ownership disclosure requirements for companies. The government has also begun developing a searchable beneficial ownership registry.
6. Transparent public procurement process No No This commitment seeks to re-design Kenya’s Integrated Financial Management Information System portal to meet Open Contracting Data Standard. After the first year, the commitment has not started.
7. Access to government budget information and inclusive public participation No No The central online platform to publish budget documents envisioned for this commitment was not created during the first year of implementation. The IRM researcher recommends strengthening the role of relevant government actors—such as county budget officers, the Parliamentary Budget Office and Commission on Revenue Allocation—in implementing this commitment.
✪8. Right to information and records management Yes No This commitment seeks to improve Kenya’s record management. The passage of the Access to Information Act in August 2016 represents a significant step towards enforcing Kenya’s constitutional guarantees of the right to information.

* Commitment is evaluated by the IRM as specific, relevant, and has a transformative potential impact
✪ Commitment is evaluated by the IRM as being specific, relevant, potentially transformative, and substantially or fully implemented

IRM Report - Kenya Mid-Term Report 2016- 2018 (Year 1)


I. Introduction 
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The Open Government Partnership (OGP) is an international multi-stakeholder initiative that aims to secure concrete commitments from governments to their citizenry to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. OGP provides an international forum for dialogue and sharing among governments, civil society organizations, and the private sector, all of which contribute to a common pursuit of open government.

Kenya began its formal participation in August 2011, when the then Minister for Foreign Affairs, Hon. Moses Wetangula, declared Kenya’s intention to participate in the initiative by submitting a letter of intent to the OGP secretariat[Note1: The letter is available at https://www.opengovpartnership.org/country/kenya. ] and endorsed the Open Government Declaration. The Permanent Secretary, Ministry of Information, Communication and Technology, Bitange Ndemo, submitted a cabinet memorandum that was approved, authorising Kenya’s participation in OGP.

In order to participate in OGP, governments must exhibit a demonstrated commitment to open government by meeting a set of (minimum) performance criteria. Objective, third party indicators are used to determine the extent of country progress on each of the criteria: fiscal transparency, public official’s asset disclosure, citizen engagement, and access to information. See Section VII: Eligibility Requirements for more details.

All OGP-participating governments develop OGP action plans that elaborate concrete commitments with the aim of changing practice beyond the status quo over a two-year period. The commitments may build on existing efforts, identify new steps to complete ongoing reforms, or initiate action in an entirely new area.

Kenya developed its first action plan in 2012. The official implementation period for the action plan was July 2012 through June 2013. According to the OGP second cohort schedule, government and civil society members were to revise the first plan or develop a new plan by April 2014. Accordingly, the Kenya Open Government Working Group and the Kenya ICT Authority published a draft revised national action plan[Note2: Available at http://www.openinstitute.com/give-input-kenyas-ogp-action-plan/. ] effective November 2014 to November 2016 for public input; however, this draft was not submitted to the OGP secretariat. Therefore, Kenya missed two deadlines in two successive years to prepare and submit a subsequent action plan until June 2016 when the second national action plan was submitted.

Kenya developed its second national action plan,[Note3: Available at http://www.nation.co.ke/oped/Opinion/benefits-of-open-government-and-why-kenyans-should-own-it/440808-3293490-9h5b5v/index.html.] building on the first action plan, with an implementation period from 1 July 2016 through 30 June 2018. This midterm progress report covers the first year of implementation of this period, from 1 July 2016 to 30 June 2017. The IRM also publishes end of term reports to account for the final status of progress at the end of the action plan’s two-year period. Any activities or progress made after the first year of implementation (1 July 2017 to 30 June 2018) will be assessed in the end-of-term report. This report follows an earlier review of OGP performance in Kenya, “Kenya Progress Report 2012–13,” which assessed the development of the first action plan and its implementation from 1 July 2012 through 30 June 2013. The government has yet to publish its self-assessment report of the second action as of May 2017.

In order to meet OGP requirements, the Independent Reporting Mechanism (IRM) of OGP has partnered with Caroline Othim, who carried out this evaluation of the development and implementation of Kenya’s second national action plan. It is the aim of the IRM to inform ongoing dialogue around development and implementation of future commitments in each OGP-participating country. Methods and sources are dealt with in a Methodology and sources (Section VI) in this report.


II. Context 
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The implementation of the second action plan took place during a tense political climate and national elections characterised by violence and repression. While Kenya stands out in the region for a strong, progressive constitution and vibrant civil society, deep problems of corruption, cronyism, and police violence hinder progress toward open government reform.

2.1 Background

In recent years, Kenya has made significant advances in the areas of democracy and civil society compared to other sub-Saharan African countries. On 4 August 2010, Kenyans passed a referendum to adopt a new progressive Constitution, which was promulgated on 27 August 2010.[Note4: Dr. Migai Akech, Institutional Reform in the New Constitution of Kenya (International Centre for Transitional Justice, Oct. 2010), 7, https://www.ictj.org/sites/default/files/ICTJ-Kenya-Institutional-Reform-2010-English.pdf.] Kenya gained independence in 1963, but the years of transition were marked by political turbulence and human rights violations such as land clashes, massacres, arbitrary arrest, extrajudicial executions, detention without trial, electoral violence, grand corruption, and economic crimes. Many of these issues were attributed to a constitutional order that concentrated power in the presidency and limited other arms of government and civil society.[Note5: Id. at 3.] The passage of the 2010 Constitution represented a major shift in governance, and created an elaborate system of checks and balances, independent offices (auditor general and controller of the budget), and 10 independent commissions.[Note6: Roland Ebole and Morris Odhiambo, Governance Assessment Kenya January 2013 - July 2016 (Freedom House) https://freedomhouse.org/sites/default/files/Governance%20Assessment%20Kenya%202016.pdf.]

Improving judicial independence has been one of the greatest undertakings to solidify Kenya’s democracy and check the other branches of government. Critically, the 2010 Constitution reintroduced the Judicial Service Commission (JSC),[Note7: Article 171. ] which mandated promoting the independence, effectiveness, and accountability of the judiciary.[Note8: Article 172.]

Another key reform area initiated under Kenya’s 2010 Constitution was the devolution of power and resources to the subnational level to address challenges like regional inequalities and marginalisation of communities in decision-making and development. Disaggregating government services was also seen as vital to monitoring and curbing corruption, inefficient use of public resources, and poor service delivery. In 2013, this devolution was implemented as set out in the constitution, transferring significant elements of fiscal and administrative authority from the central government to 47 county governments.[Note9: United States Department of State - Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices - Kenya 2016 Human Rights Report (3 March 2017) https://www.state.gov/j/drl/rls/hrrpt/2016/af/265266.htm.] Increasing governance at the county level was aimed to improve democratic space for citizens to engage with the government, and to allow a broader base of participation.

The 2010 Constitution established periodic elections every five years; the first presidential election under this new system occurred in 2013. During presidential campaigns, open government reforms, centred around devolution, were frequently cited in party manifestos.[Note10: Jubilee Coalition, Transforming Kenya: Securing Kenya's Prosperity 2013 – 2017, https://issuu.com/jubileemanifesto/docs/jubilee_manifesto.] Power devolution remains a major gain from the new constitution.

Despite these positive developments, a number of shortcomings in open government policy remain, particularly in disclosure of public officials’ wealth, open budgeting, and devolution of citizen engagement. Reports by Transparency International show a high perception of corruption. Transparency International Kenya has cited the Police, Judiciary, and Land Services as the most corruption-prone public institutions, which is detailed in the most recent East African Bribery Index (EABI) report.[Note11: Transparency International - Kenya, The East African Bribery Index (2017) tikenya.org/wp-content/uploads/2017/09/East-African-Bribery-Index-EABI-2017-1-1.pdf.] The study found that 68 percent of Kenyans were asked (implicitly or explicitly) or offered to pay a bribe in order to access police services; 55 percent paid bribes to Land Services, 48 percent paid bribes for interactions with the judiciary, and 45 percent paid a bribe at the Civil Registration office. Corruption scandals have plagued the Uhuru Kenyatta regime, such as the National Youth Service, youth fund, Afya house, and Rio scandals. The fight against corruption was declared a priority in the State of the Nation address (26 March 2015).

Under Kenyan law, public officials are required to declare their own, their spouse’s, and their dependent children’s income, assets, and liabilities every two years. In addition, the 2012 Leadership and Integrity Act requires public officials to register potential conflicts of interest with their relevant commissions. However, these declarations are not disclosed to the public and thus escape scrutiny.[Note12: United States Department of State - Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices - Kenya 2016 Human Rights Report.]

State institutions tasked with combating corruption have been ineffective.[Note13: Freedom House, Freedom in the World Report 2017: Kenya (2017) https://freedomhouse.org/report/freedom-world/2017/kenya.] The Ethics and Anti-Corruption Commission (EACC), an independent agency created in 2011, has a legal mandate to investigate official corruption allegations, develop and enforce a code of ethics for public officials, and conduct public outreach on corruption.[Note14: United States Department of State - Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices - Kenya 2016 Human Rights Report.] However, the EACC lacks prosecutorial authority and must refer cases to the Office of the Director of Public Prosecutions (ODPP) to initiate criminal proceedings. Both the EACC and the ODPP are beset by technical and financial challenges that prevent them from fulfilling their mandate. The most recent reports show that for the 2014–15 fiscal year, EACC only referred two percent of the corruption cases it investigated to the ODPP, and of these, the ODDP only secured a single conviction.[Note15:  Freedom House, Freedom in the World Report 2017: Kenya.]

Mismanagement of public funds has been a recurring problem in Kenya. In August 2016, the head of the EACC resigned over allegations of misappropriating funds from the National Youth Service. Some reform projects appear to have made the problem worse, like the Integrated Financial Management Information System (IFMIS), launched in 2014 as an online clearinghouse for state procurements. In transitioning to an online monitoring system, records were improperly kept or entirely lost due to internet connectivity issues and low levels of computer training among officials and contractors, especially in remote areas. Furthermore, opposition allegations of an embezzlement scandal involving the National Youth Service and an improper awarding of a government contract to the Health Ministry implicate misuse of IFMIS.[Note16: Id.] The current action plan includes a commitment to improve disclosure through IFMIS.

The budget process in Kenya also suffers from insufficient transparency and public participation in oversight and monitoring. The Open Budget Survey (OBS) 2015[Note17: International Budget Partnership (2015) http://www.internationalbudget.org/wp-content/uploads/OBS2015-CS-Kenya-English.pdf.] gave Kenya a score of 48 out of 100 (0 being poor and 100 good) on transparency because it provides the public with limited budget information, and a score of 33 out of 100 on public participation. This shows only a slight improvement from Kenya’s score of 36 for access to information in 2012, and a slight decline from a score of 39 for public engagement.[Note18: file:///Users/caroline/Desktop/OBI2012-Report-English.pdf. ] This suggests that the Government is weak in providing the public with opportunities to engage in the budget process. Effective implementation of public participation laws at the national and subnational level remains a challenge for engaging citizens and civil society organisations (CSOs), despite constitutional provisions as well as the existence of enabling legislation. The national action plan provides for the enactment of a stand-alone law on public participation.

Kenya enjoys a strong and active civil society and is a leader in the East African region. CSOs have been outspoken critics of the government’s unfulfilled promises to tackle corruption, reporting on scandals, and high-level impunity. The sector is credited for aiding some of the transformative changes in Kenya such as the passage of the progressive 2010 Constitution and the 2013 Public Benefits Organizations Act, making it easier for NGOs to operate and replacing the outdated NGO Act of 1990.

However, in recent years, the space for civil society has been shrinking. In August 2017, the Kenya National Commission on Human Rights (KNCHR) reported government attacks on the African Centre for Open Governance (AFRICOG) and the Kenya Human Rights Commission, two of the leading rights and governance organisations in the country.[Note19:  Kagwiria Mbogori, "Attacks on the Civic Space by the Defunct NGOs Coordination Board" (Kenya National Commission on Human Rights, 16 Aug. 2017) knchr.org/Portals/0/PressStatements/KNCHR%20PRESS%20STATEMENT-%20ATTACK%20ON%20CIVIC%20SPACE.pdf?ver=2017-08-16-153342-550.      ] There are several examples of cases that have brought against non-governmental organisations (NGOs) on what are perceived to be falsified charges. In one cited example of repression, the Government NGO Coordination Board accused AFRICOG of ‘financial and regulatory impropriety,’ and called on other agencies, including the Directorate of Criminal Investigations and the Central Bank of Kenya, to freeze AFRICOG’s bank accounts, arrest and prosecute the directors, and deport all foreign employees.[Note20: Id.     ] The operation was called off following protests, and the High Court found the NGO Board had violated AFRICOG and the Human Rights Commission’s rights. The NGO Board was later disbanded. However, the former head, Fazul Mahamed, continues to hold public office, despite having been declared unfit following investigations by the Commission for Administrative Justice for abuse of office and misconduct.[Note21: Id.]

Despite institutional strengthening under the 2010 Constitution, including solid grounding for rule of law and the protection of human rights, implementation is often weak.[Note22:  Freedom House, Freedom in the World Report 2017: Kenya.] Police brutality, abuse, and impunity stand as significant barriers to the free exercise of civil liberties and the full enforcement of the rule of law. According to Freedom House, in 2016, police officers killed 122 civilians, a seven percent increase from 2015. Notable cases of police brutality included use of beatings, tear gas, and live ammunition against opposition party demonstrators calling for electoral reform in May and June 2017. Ten demonstrators were killed.[Note23:  United States Department of State - Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices - Kenya 2016 Human Rights Report.]

Deep-seated issues surrounding the rule of law in Kenya were again brought to the fore by elections in August 2017. One week before the elections, Christopher Chege Musando, a senior manager in information technology at the Independent Electoral and Boundaries Commission (IEBC), was found tortured and murdered.[Note24:  Kimiko de Freytas-Tamura, “Kenyan Election Official Is Killed on Eve of Vote,” (New York: New York Times, 31 Jul. 2017) https://www.nytimes.com/2017/07/31/world/africa/chris-musando-kenya-election-official-dead.html.] The IEBC is responsible for counting votes and declaring the results. Human Rights Watch (HRW) reported that ‘the election was marred by serious human rights violations, including unlawful killings and beatings by police during protests and house-to-house operations in western Kenya.[Note25: Human Rights Watch, “Kenya: Post Election Killings, Abuse,” (27 August 2017) https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse.] Protests began on 9 August, following allegations by the opposition candidate, Raila Odinga, that the electoral commission’s system had been hacked and polling results manipulated.[Note26: Id.] The KNCHR reported on 12 August that at least 24 people had been killed and over 100 badly injured, though actual numbers are suspected to be much higher.[Note27:  Kagwiria Mbogori, "Status Update on Developing Post Election Human Rights Violations" (Kenya National Commission on Human Rights, 12 Aug. 2017) knchr.org/Portals/0/PressStatements/Press%20statement-%20Developing%20Post%20elections%20scenarios%202017%20.pdf?ver=2017-08-12-202548-3%20KNCHR.] HRW described the killings as ‘part of a pattern of violence and repression in opposition strongholds.’[Note28: Human Rights Watch, “Kenya: Post Election Killings, Abuse,” (27 August 2017) https://www.hrw.org/news/2017/08/27/kenya-post-election-killings-abuse.]

Speaking to the strong role of the judiciary in checking other branches, the courts played an instrumental role in investigating and mediating the contested election results. Initially, incumbent President Uhuru Kenyatta was declared the winner, however, this was challenged in court by runner-up Raila Odinga. On 1 September, the Supreme Court declared the win null and void and ordered new elections be held within 60 days.[Note29: Kagwiria Mbogori, “Preliminary Findings of the 26 October Repeat Presidential Election in Kenya” (Kenya National Commission on Human Rights, 3 Nov. 2017) http://knchr.org/Portals/0/PressStatements/Preliminary%20Findings%20of%20the%2026th%20October%20Repeat%20Presidential%20Election%20in%20Kenya%203rd%20November%202017.pdf?ver=2017-11-03-133124-760.] New elections were set for 26 October, and the preceding weeks again were marked by violent protests and police brutality. On election day, police were heavily deployed to opposition party strongholds, and many opposition voters boycotted the election in protest. As KNCHR reported, civilian protestors also instigated violent action to intimidate voters and block polling stations, committing acts of violence and looting.[Note30: Id.]

The 2017 elections also spurred increased attempts by the government to limit freedom of expression.[Note31: Audrey Wabwire, “Kenya’s Government Should Know Free Press is Crucial for Fair Election: Journalists Face Intimidation” (Human Rights Watch, 22 Aug. 2017)

 https://www.hrw.org/news/2017/08/22/kenyas-government-should-know-free-press-crucial-fair-election.] Journalists and activists were arrested and prosecuted, while government officials allegedly pressured the media to censor criticism of powerful figures. According to Freedom House, a number of activists used the moderately independent judicial system to fight back against threats to freedom of expression. 

Freedom of information in Kenya is protected by law and the recent Access to Information Act 2016 achieved a high rating by the Global Right to Information (RTI) index, placing Kenya 17 out of 102 countries globally.[Note32: "Global Right to Information Rating - Year 2017" (Access Info, Centre for Law and Democracy, 3 Feb. 2018) www.rti-rating.org/year-2017/.] A noted strength of the Act is its broad scope, which stipulates that the right of access applies to all material held by or on behalf of public authorities, recorded in any format, regardless of who produced it. No public bodies or classes of information are excluded from being subject to requests, including the executive branch (cabinet) and administration, covering all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, and security services.[Note33: Id.] Transparency advocates welcomed the law, but noted a broad exemption for national security matters and called for careful consultation on implementing regulations going forward.[Note34: Freedom House, Freedom in the World Report 2017: Kenya. ]

In 2011, Kenya joined the global Open Data Initiative (KODI)[Note35: Kenya OpenData, “Home” (ICT Authority) www.opendata.go.ke.] and developed the Kenya Open Data Portal, which makes public government datasets freely accessible to the public in easy, reusable formats, supporting the government’s efforts to proactively inform citizens and be accountable. Kenya was the second African country (after Tunisia) to launch an open government portal. That same year, Kenya joined OGP. However, the momentum for open government reforms under the OGP initiative slowed as Kenya missed two successive deadlines to submit a national action plan. United States President Barack Obama’s visit to Kenya in July 2105 raised the profile of open government, and reignited open government reforms. The current action plan includes themes that address some of the biggest challenges in Kenya’s current national context.

2.2 Scope of Action Plan in Relation to National Context

The action plan includes commitments that address key areas of concern for Kenyans such as anti-corruption, public participation, access to information, climate change, budget transparency, legislative openness, public procurement, and open contracting. However, a large number of commitments in the action plan include aspirational goals, and fall short of defining concrete, actionable steps toward changing government practice. The action plan could have placed more emphasis on defining and laying out a clear roadmap for implementing existing laws and tackling the specific challenges that have impeded implementation thus far.

The action plan references and reinforces goals that are part of larger national frameworks. For example, the action plan includes commitments toward achieving goals in Kenya’s long-term development blueprint, the Kenya Vision 2030. Commitments shared across both plans include equitable social development in a clean and secure environment and a people-centred, accountable democratic system.[Note36: Kenya Vision 2030, "About Kenya Vision 2030" (2018) accessed 14 November 2017, www.vision2030.go.ke/about-vision-2030/. ] In addition, commitments in the current action plan focus on improving implementation of Kenya’s 2010 Constitution, in particular, ensuring that citizens’ rights to participate in government and to access information are upheld in practice.

The government documents progress made toward open government reforms in the government delivery portal,[Note37: President's Delivery Unit, "Home" (Office of the President) https://www.delivery.go.ke.] which the Office of the President launched in 2015. It highlights the achievement of the government over the last four years. The President’s Delivery Unit was established within the Office of the President to improve the coordination of National Government flagship programs, and to monitor, evaluate, and report on the timely fulfilment of the President’s key development priorities. The portal allows Kenyans to access details of all investments made by the Jubilee Government over the last four years. The portal delivers information on Jubilee flagship programmes, Ministry milestones, and work the National Government is doing in the country’s 47 counties.

The urgent need to address the shrinking civic space was reiterated during an OGP roundtable meeting that brought together government and CSOs. It was identified as a key issue in a communiqué issued by CSOs that stated: ‘The rapidly shrinking civic space in which citizens and civil society exercise their rights of expression, assembly, information and association is a disabling environment for the realization of open government in Kenya.The scope of the action plan did not sufficiently address this priority within the country context. Although some commitments include elements to increase citizen engagement with government, none had the express goal of protecting or expanding citizens’ rights to organise, speak out, or report on government. The shrinking space undermines the spirit of open government reforms and principles.[Note38: Kenya Human Rights Commission, Towards a Protected and Expanded Civic Space in Kenya and Beyond, (KHCR Report, October 2016) http://www.khrc.or.ke/civic-space-publications/173-towards-a-protected-and-expanded-civic-space-in-kenya-and-beyond/file.html. ] To promote effective citizen participation in decision-making processes, the government needs to strengthen mechanisms for ensuring citizens can receive feedback from public participation meetings and ensure that all principles of public participation are upheld.


III. Leadership and Multistakeholder Process 
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The co-creation process between government and civil society included a broad range of stakeholders and a formal OGP Steering Committee was established in February 2016. Despite this positive step, formal consultations were delayed until May, did not provide sufficient advance notice to participants, and lacked awareness-raising activities. Moving forward, the Steering Committee will function as the multi-stakeholder forum for regular consultation on commitment progress.

 

3.1 Leadership

This subsection describes the OGP leadership and institutional context for OGP in Kenya. Table 3.1 summarizes this structure while the narrative section (below) provides additional detail.

Table 3.1: OGP Leadership

1. Structure

Yes

No

Is there a clearly designated Point of Contact for OGP (individual)?

 

 

Shared

Single

Is there a single lead agency on OGP efforts?

 

 

Yes

No

Is the head of government leading the OGP initiative?

 

2. Legal Mandate

Yes

No

Is the government’s commitment to OGP established through an official, publicly released mandate?

 

Is the government’s commitment to OGP established through a legally binding mandate?

 

3. Continuity and Instability

Yes

No

Was there a change in the organization(s) leading or involved with the OGP initiatives during the action plan implementation cycle?

 

Was there a change in the executive leader during the duration of the OGP action plan cycle?

 

 

The co-chair of the Office of the Deputy President (ODP) and the Information and Communications Technology (ICT) Authority, an agency within the Ministry of ICT under the executive branch, are the lead offices responsible for Kenya’s OGP commitments. The lead agency during the development and implementation of the first action plan was solely the ICT Authority. Despite the mandate conferred on the ICT Authority, the Authority had little legal power to enforce policy changes on other ministries, departments, and agencies (MDAs) regarding OGP issues. In assessing the performance of OGP in Kenya, it was noted that a lead office with higher authority would ensure proper coordination of OGP with the MDAs. The Office of the Deputy President was therefore designated a co-chair because the presidency has the legal power to enforce policy changes on other agencies within the government (see Table 3.1 OGP Leadership). As a result of this mandate, and broader involvement of stakeholders, the second action plan is more diverse and the commitments cover a broader spectrum of issues relevant to OGP. The ODP has also proposed to have commitment implementation included in the ongoing duties of the responsible public officers.

The co-chairs allocated four staff (two from ODP and the other two from ICT Authority) to oversee the development and implementation of the action plan. It is notable, that the two staff from the ICT Authority left office in the period immediately after submission of the second national action plan. In FY 2016/2017 and 2017/2018, there were no direct budget lines in the Executive’s budget for planning and coordination of OGP-related activities. However, implementing agencies fund their designated commitments from their own budgets. Both the change in ICT staffing (which will require training for the new officials on OGP matters) and the lack of guaranteed budgetary support for all commitments will likely affect the implementation of the second national action plan.

In order to lead the development of the second national action plan, a multi-agency steering committee was formed in February 2015. It comprised of parliament and government agencies, one private-sector body (Kenya, Private Sector Alliance - KEPSA) and four civil society organisations: Hivos; Article 19; International Commission of Jurists Kenya (ICJ Kenya); and Transparency International Kenya (TI-Kenya) and. The steering committee is co-chaired by the Office of the Deputy President and ICT Authority. The ICT Authority houses the OGP steering committee Secretariat while the Office of the Deputy President coordinates and is responsible for the activities regarding OGP by the Secretariat. Section 1.3 describes the activities of the steering committee.

Since Kenya is a decentralised country, the national and subnational governments are distinct and interdependent and conduct their business through consultation and cooperation.[Note39: Kenya Const. Article 6 (2) (2010).] A couple of commitments in the national action plan require implementation at both the national and subnational government levels. The two levels must therefore consult and coordinate as needed. However, this consultation (even within government) occurred only in the capital, Nairobi, during the development of the action plan (see Section II on “Development of Action Plan”).

The general elections of August 2017 caused challenges to the implementation of the action plan as some of the key staff in charge of implementation were running as candidates or working on campaigns, often in breach of the elections offenses law.[Note40: Charles k, "Uhuru accused of using state resources for campaign," (Hivisasa, Jun. 2017) https://hivisasa.com/posts/uhuru-accused-of-using-state-resources-for-campaign. ] However, open government was one of the key election issues and major political parties made promises and pledges in their manifestos toward opening government.

3.2 Intragovernmental Participation

This subsection describes which government institutions were involved at various stages in OGP. The next section will describe which nongovernmental organisations were involved in OGP.

Table 3.2: Participation in OGP by Government Institutions

How did institutions participate?

Ministries, Departments, and Agencies

Legislative

Judiciary (including quasi-judicial agencies)

Other (including constitutional independent or autonomous bodies)

Subnational Governments

Consult: These institutions observed or were invited to observe the action plan but may not be responsible for commitments in the action plan.

7[Note41: The Presidency - Office of the Deputy President, ICT Authority, Ministry Environment and Natural Resources, Ministry of Sports, Culture and the Arts, Kenya National Archives and Documentation Service (KNADS), Ministry of Mining and National Treasury, State Law Office and Department of Justice.]

0

0

0

0

Propose: These institutions proposed commitments for inclusion in the action plan.

7[Note42: The Presidency - Office of the Deputy President, Ministry Environment and Natural Resources, Ministry of Sports, Culture and the Arts, Kenya National Archives and Documentation Service (KNADS), Ministry of Mining, National Treasury and ICT Authority, State Law Office and Department of Justice.]

0

0

0

0

Implement:  These institutions are responsible for implementing commitments in the action plan whether or not they proposed the commitments.

17[Note43: Ministry Environment and Natural Resources, Ministry of Sports, Culture and the Arts, Kenya National Archives and Documentation Service (KNADS), Ministry of Mining, National Treasury, Ministry of ICT, Ministry of Devolution and Planning, Ministry of Foreign Affairs, Ministry of Public Service, Youth and Gender, ICT Authority, Kenya Open Data Initiative (KODI), Kenya Revenue Authority, Kenya School of Government, Forestry Service (KFS), National Sector Working Groups, Legislative & Intergovernmental Liaison Office (LILO), National Council for Law Reporting, State Law Office and Department of Justice, Office of the Director of Public Prosecutions, and all public entities.]

National Assembly, Senate, Parliament Service Commission

Office of the Director of Public Prosecutions

6[Note44: Commission for Administrative Justice, Controller of Budget, Auditor General, Council of Governors, Intergovernmental Budget and Economic Council (IBEC),and Ethics & Anti-Corruption Commission.]

All 47 County Assemblies, All 47 County Executives

 

In Kenya, government participation in OGP processes was limited to government ministries, departments, and agencies. A total of seven MDAs participated and were consulted and invited to propose commitments. Table 3.2, above, details which institutions were involved in OGP. The judiciary, the legislature (both National Assembly and Senate), constitutional commissions, independent offices and subnational governments were not part of the consultative process. They were neither consulted nor invited to give commitments proposals.

The government sent formal invitations to contribute to the relevant MDAs and civil society organisations (CSOs). These parties worked closely with staff from the two lead offices, the Deputy President Office and the ICT Authority. MDAs and civil society sent representatives to the consultations with proposals for improving commitments. These meeting attendees, comprised of both CSOs and government officials, provided technical recommendations for the content and structure of the commitments. Five in-person meetings were held, including two broad consultations at the national level. The Steering Committee was divided into four OGP challenge areas, two led by civil society and two by government. A validation workshop was convened to adopt the action plan.

3.3 Civil Society Engagement

Countries participating in OGP follow a set of requirements for consultation during development, implementation, and review of their OGP action plan. Table 3.3 summarises the performance of Kenya during the 2016–2018 action plan.

Table 3.3: National OGP Process

Key Steps Followed: 2 of 7

Before

1. Timeline Process & Availability

2. Advance Notice

Timeline and process available online prior to consultation

Yes

No

Advance notice of consultation

Yes

No

 

 

3. Awareness Raising

4. Multiple Channels

Government carried out awareness-raising activities

Yes

No

4a. Online consultations:     

Yes

No

 

 

4b. In-person consultations:

Yes

No

 

5. Documentation & Feedback

Summary of comments provided

Yes

No

 

During

6. Regular Multi-stakeholder Forum

6a. Did a forum exist?

Yes

No

6b. Did it meet regularly?          

Yes

No

 

 

After

7. Government Self-Assessment Report

7a. Annual self-assessment report published?         

Yes

No

7b. Report available in English and administrative language?

Yes

No

 

 

7c. Two-week public comment period on report?

Yes

No

7d. Report responds to key IRM recommendations?

Yes

No

 

 

                 

 

Implementation of Kenya’s first action plan finished in June 2014. Since then, Kenya missed two successive deadlines to prepare and submit a subsequent action plan, finally submitting the second plan in June 2016. However, even though the government missed the deadlines, the ICT Authority and several CSOs continued to make efforts in developing the second plan with a proposal to have an inter-ministerial committee spearhead the process. However, the 2013 general elections and changes among key ICT ministry staff caused delays.

In February 2016, consultations between the Office of the Deputy President and the Ministry of ICT began the process again. The government formed a steering committee comprised of parliament and government agencies, four CSOs, and one private-sector body that included representatives from Article 19, Transparency International, International Commission of Jurists, Africa Centre for Open Governance and Kenya Private Sector Alliance. The Ministry of ICT and the Office of the Deputy President co-chaired this committee. The steering committee members were formally invited to provide input on the national action plan. One of the committee members confirmed that a Google Group was formed to facilitate, information sharing, including the OGP timeline. The steering committee members were divided to lead discussions on four pillars modelled around the core open government principles, two led by civil society and two by government. These four areas were transparency, civic participation, public accountability, and technology and innovation for openness and accountability. The CSOs and the private sector were expected to consult their constituents and submit proposals on the content and structure of commitments that affected their interests. As a result, a CSO caucus was convened before the final consultation to ensure that those who did not receive the formal invitation had an opportunity to share their comments on the draft action plan. The civil society caucus therefore provided an opportunity for more CSOs to give input on the draft action plan. The caucus was also actively involved in drafting the commitments and providing technical recommendations regarding content and structure. For instance, International Budget Partnership and Mzalendo Trust were largely involved in drafting commitments on open budgets and legislative openness respectively. However, subnational governments, parliament and the judiciary were not part of the consultations to develop the action plan.

One major challenge to the process was the geographically limited representation by CSOs. The CSOs invited to the steering committee were limited to those based in Nairobi, with many coming from non-local international organisations such as Hivos, Article 19, and Transparency International - Kenya. The government did not consider geographic diversity or inclusion of smaller, Kenya-based CSOs, be they national or subnational organisations. There were no formal public consultations involving the larger public as required by the Kenyan Constitutional provisions on public participation. The participating CSOs however, had the requisite technical capacity covering the broad areas of the eight commitments.

The national action plan is largely derived from an existing set of commitments in the government development blueprint, Vision 2030.[Note45: Kenya Vision 2030 Actin Plan Pillars http://www.vision2030.go.ke/about-vision-2030/. ]

Table 3.4: Level of Public Influence

Level of public input
During development of action plan
During implementation of action plan
Empower

The government handed decision-making power to members of the public.

 

 

Collaborate

There was iterative dialogue AND the public helped set the agenda.

 

 

Involve

The public could give feedback on how commitments were considered.

 

 

Consult

The public could give inputs.

 

Inform

The government provided the public with information on the action plan.

 

No Consultation

No consultation

 

 

The IRM has adapted the International Association for Public Participation (IAP2) “Spectrum of Participation” to apply to OGP.[Note46: IAP2 International Federation, "IAP2's Public Participation Spectrum" (2014) c.ymcdn.com/sites/www.iap2.org/resource/resmgr/foundations_course/IAP2_P2_Spectrum_FINAL.pdf. ] This spectrum shows the potential level of public influence on the contents of the action plan. In the spirit of OGP, most countries should aspire for “collaborative.”

3.4 Consultation During Implementation

As part of their participation in OGP, governments commit to identify a forum to enable regular multi-stakeholder consultation on OGP implementation. This can be an existing entity or a new one. This section summarises that information.

To gather feedback from multiple stakeholders, the researcher participated in six stakeholder consultations. The first meeting was convened on 22 February 2017 in Nairobi by the Office of the Deputy President, in collaboration with Hivos and Article 19, and drew participants from government, civil society and the private sector. This meeting sought to: begin government, private sector and civil society coordination and engagement within the identified areas of the national action plan; share information and progress on initiatives, actions, and plans since July 2016; and coordinate meetings on potential commitment areas that were nominated by organisations. During this meeting, participants decided to form clusters to monitor the action plan’s implementation, but as of 25 May 2017, the structure and operations of these clusters have not been established.

Civil society convened the second meeting, held on 23 May 2017 at the Intercontinental Hotel, drawing participation from civil society organisations only. The aim of this meeting was to formalise thematic clusters in the action plan. This involved assigning CSOs to monitor implementation of commitments in their respective areas of work. The areas of interest included: climate change, transparency and accountability, legislative openness, extractives, open contracting, budget transparency, and access to information. Four thematic commitment clusters were formed. This meeting further developed a communiqué of CSOs’ requests for the government and CSO positions on OGP-related matters in Kenya.

These two meetings were both held in Kenya’s capital, Nairobi. In addition, three separate stakeholder consultations were organised by the Constitution and Reform Education Consortium (CRECO) on 19 January, 24 March and 21 July 2017 to create awareness of the OGP brand as well as OGP commitments and the extent of implementation at the subnational level. The meetings were held in Nakuru County and the sessions drew participants from CRECO member organisations (MAPACA and CEDGG) and County Oversight Committee members from Nakuru and Elgeyo Marakwet counties. CRECO also organised two public meetings in Elgeyo Marakwet and Makueni counties, which the researcher did not participate in. These meetings were open to the public to discuss ways of holding public officials accountable to opening up government. An OGP national learning platform meeting was also held on 10 and 11 October 2017 in Nairobi. The aim of the meeting was to take stock of progress made in implementing OGP commitments at national and subnational levels and to strategize to account for the shrinking civic space, election season and dwindling donor funds supporting CSO-led OGP activities. The event drew participants from both government and civil society. CRECO involvement at the national level involves stakeholder engagement meetings with CSOs and government representatives; at the county level, CRECO holds public awareness and hearing meetings with county leadership, opinion leaders, youth, women, religious leaders and representatives of different sections of society.

Government and civil society interviewees noted that consultations were carried out ad-hoc, with no formal relationship between civil society and government actors during implementation and there is need to improve this engagement so that both parties are equals at the table. Interviewed CSO representatives expressed concern that the government’s rhetoric of openness and accountability does not match implementation and enforcement mechanisms. According to CSOs, the government needs to reach out and involve more governance CSOs in the OGP process. Participation by civil society must improve and increase in number, as this shortcoming exposes the small number of voices behind the OGP process. Also, the OGP concept, process and narrative should be institutionalised within government agencies to ensure stability and continuity throughout staff transitions.

3.5 Self-Assessment

The OGP Articles of Governance require that participating countries publish a self-assessment report three months after the end of the first year of implementation. The self-assessment report must be made available for public comments for a two-week period. This section assesses compliance with these requirements and the quality of the report.

As of this report, the government had not published a self-assessment report.

3.6 Response to Previous IRM Recommendations

Starting in the second year of assessments, reports shall also include a section for follow-up on recommendations issued in previous reports. This follow-up process will also be carried out in accordance with the principles set out in this document.

Table 3.5: Previous IRM Report Key Recommendations

Recommendation
Addressed?
Integrated into Next Action Plan?

1

Increase corporate accountability.

2

Enact a comprehensive access to information (ATI) law.

3

Implement the new constitution, which embodies the principles on which the first action plan commitments are built.

The government addressed all three recommendations and integrated them into the second national action plan. Recommendation 1, on increasing corporate accountability, looks at the ability of the public to hold corporations accountable. This concept demands fundamental changes to the legal framework in which companies operate. This is captured in the second action plan through commitments regarding open contracting in the extractives sector, public procurement process and beneficial ownership. Further, Recommendation 2, on enacting a comprehensive access-to-information (ATI) law, was reflected in the commitment to enhance the right to information by strengthening access to information and record management. Recommendation 3, regarding the new constitution, embodies the principles on which the first action plan commitments were built and is a continuing thread in the second national action plan. Stakeholders identified all three recommendations as priority areas to contribute to the opening up of government. The discussion to enact an access-to-information law has been a decade-long debate and having it in the second action plan emphasised the need to enact this law. Lastly, stakeholders believe the government should strive to ensure full implementation of Kenya’s 2010 Constitution, highlighting the provisions that would contribute toward opening government.


IV. Commitments 
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All OGP-participating governments develop OGP action plans that include concrete commitments over a two-year period. Governments begin their OGP action plans by sharing existing efforts related to open government, including specific strategies and ongoing programs.

Commitments should be appropriate to each country’s unique circumstances and challenges. OGP commitments should also be relevant to OGP values laid out in the OGP Articles of Governance and Open Government Declaration signed by all OGP-participating countries.[Note47: Open Government Partnership: Articles of Governance, June 2012 (Updated March 2014 and April 2015), https://www.opengovpartnership.org/sites/default/files/attachments/OGP_Articles-Gov_Apr-21-2015.pdf.]

What Makes a Good Commitment?

Recognising that achieving open government commitments often involves a multiyear process, governments should attach time frames and benchmarks to their commitments that indicate what is to be accomplished each year, whenever possible. This report details each of the commitments the country included in its action plan and analyses the first year of their implementation.

The indicators used by the IRM to evaluate commitments are as follows:

·       Specificity: This variable assesses the level of specificity and measurability of each commitment. The options are:

o   High: Commitment language provides clear, verifiable activities and measurable deliverables for achievement of the commitment’s objective.

o   Medium: Commitment language describes activity that is objectively verifiable and includes deliverables, but these deliverables are not clearly measurable or relevant to the achievement of the commitment’s objective.

o   Low: Commitment language describes activity that can be construed as verifiable but requires some interpretation on the part of the reader to identify what the activity sets out to do and determine what the deliverables would be.

o   None: Commitment language contains no measurable activity, deliverables, or milestones.

·       Relevance: This variable evaluates the commitment’s relevance to OGP values. Based on a close reading of the commitment text as stated in the action plan, the guiding questions to determine the relevance are:

o   Access to Information: Will the government disclose more information or improve the quality of the information disclosed to the public?

o   Civic Participation: Will the government create or improve opportunities or capabilities for the public to inform or influence decisions?

o   Public Accountability: Will the government create or improve opportunities to hold officials answerable for their actions?

o   Technology & Innovation for Transparency and Accountability: Will technological innovation be used in conjunction with one of the other three OGP values to advance either transparency or accountability?[Note48: IRM Procedures Manual. Available at: http://www.opengovpartnership.org/sites/default/files/IRM-Procedures-Manual-v3_July-2016.docx.]

·       Potential impact: This variable assesses the potential impact of the commitment, if completed as written. The IRM researcher uses the text from the action plan to:

o   Identify the social, economic, political, or environmental problem;

o   Establish the status quo at the outset of the action plan; and

o   Assess the degree to which the commitment, if implemented, would impact performance and tackle the problem.

Starred commitments are considered exemplary OGP commitments. In order to receive a star, a commitment must meet several criteria:

  • Starred commitments will have “medium” or “high” specificity. A commitment must lay out clearly defined activities and steps to make a judgement about its potential impact.
  • The commitment’s language should make clear its relevance to opening government. Specifically, it must relate to at least one of the OGP values of Access to Information, Civic Participation, or Public Accountability.
  • The commitment would have a "transformative" potential impact if completely implemented.[Note49: The International Experts Panel changed this criterion in 2015. For more information visit: http://www.opengovpartnership.org/node/5919. ]
  • The government must make significant progress on this commitment during the action plan implementation period, receiving an assessment of "substantial" or "complete" implementation.

Based on these criteria, Kenya’s action plan contained two starred commitments (Commitment 5 and Commitment 8).

Finally, the tables in this section present an excerpt of the wealth of data the IRM collects during its progress reporting process. For the full dataset for Kenya and all OGP-participating countries, see the OGP Explorer.[Note50: OGP Explorer: bit.ly/1KE2Wil.]

General Overview of the Commitments

The second action plan focused on commitments representing major thematic areas, such as anti-corruption, climate change, extractives transparency, beneficial ownership, record management, and access to information. The majority of milestones for each commitment in the action plan stand alone, and correspond to ongoing high-level policy plans, such as the Vision 2030 plan, National Climate Change Framework, and anti-corruption agenda. While many milestones could act as standalone commitments, the researcher has left them as steps toward achieving overarching policy goals as defined by the commitment text. This decision was taken because many milestone activities are part of other national frameworks and policy plans in their respective thematic areas, and logically could be assessed together.

It should also be noted that the CSOs involved in the OGP process in Kenya played a unique role in monitoring and implementing some of the commitments. In some instances, CSOs effectively implemented commitment milestones through their own independent work and focus areas. Often, this was done with cooperation and support from the government. One example of this is found in Commitment 3, where the legislative tracking software, “Dokeza,” was developed and distributed by the CSO Mzalendo Trust, in collaboration with the National Assembly and Senate.

Themes

Some commitments in the action plan included a diverse set of milestones with very different goals and diverse activities. While the IRM did not break these up into separate commitments for assessment, it should be noted that some milestones were of unclear relevance to OGP values, or were written with such low specificity that implementation could not be verified. For example, Commitment 2 on anti-corruption enforcement had ten milestones but only two were of clear relevance to OGP. In total, there were 8 commitments in Kenyas second action plan. 


V. General Recommendations 
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Kenya has made commitments in critical areas of governance. However, implementation of these commitments has demonstrated little progress due to financial and capacity constraints as well as the prevailing political climate due to elections. Stakeholders stress the need to continue work on the current commitments and recommend intergovernmental coordination, better planning and budgeting process for the next action plan.

This section aims to inform development of the next action plan and guide completion of the current action plan. It is divided into two sections: 1) recommendations identified by civil society and government officials while writing this report and 2) recommendations of the IRM.

5.1 Stakeholder Priorities

Many civil society actors interviewed by the IRM researcher were satisfied with the content of the second action plan. CSOs consider that commitments in the action plan cover important areas that need government attention and renewed action. However, a key concern was implementation of the existing commitments and the funding for the action plan with adequate budgetary allocation to OGP activities.

Regarding the action plan development process, stakeholders cite it is important that the government institutionalises the OGP steering committee as an official regular multi-stakeholder forum for consultation on OGP implementation. The government also needs to establish knowledgeable OGP Point of Contacts (PoCs) in all the lead ministries and agencies to provide regular updates to the steering committee on commitment implementation.

5.2 IRM Recommendations

In developing the next action plan, the government could take a more proactive approach to include the wider public and CSOs outside the capital in multi-stakeholder consultations. This should increase transparency and public participation in action plan development as well as future self-assessment and post-implementation activities. The government should ensure more public participation in both the drafting and implementation of the action plan and the self-assessment.

In addition to deepening and strengthening reforms around the commitments included in the second action plan, the next plan should focus on better institutionalisation and sustainability of OGP work in Kenya.

1.     Improve action plan development process

Action plan development has mainly included Nairobi-based civil society groups and there is low level of awareness of the OGP as well as the action plan commitments; it is therefore recommended that the government carry out awareness raising activities about OGP and create meaningful participation opportunities for national CSOs.

Kenya’s action plan includes reforms in key policy areas including climate action, beneficial ownership, open contracting, freedom of information and anticorruption. However, commitments fell short of clearly defined steps for implementation and did not fully communicate intended outcomes and changes in government practice.

·       An effort should be made to include more local and subnational CSOs in open government work involving local levels. This could be done by involving citizen groups in the commitments that have elements pertaining to county governments such as open budgeting, and citizen monitoring of spending.

·       The next action plan should build from the positive progress begun under this plan to strengthen and deepen initiatives in these major reform areas. Specifically, commitments in the next action plan need to be written with clear, measurable, verifiable, and feasible objectives. The next action plan should include better defined steps and goals for each commitment, ensuring clear identification of the responsible implementing officials and the resources available for implementation.

2.     Address commitment implementation challenges

There is no explicit budget line for OGP-related planning and coordination activities and there are human resource constraints at both national and subnational levels. Further, the action plan lacks a budgeted implementation plan for the activities.

·       Greater efforts are needed to institutionalise OGP in government ministries, departments and agencies. Each implementing institution needs to identify technical midlevel staff to be trained on OGP and retain institutional knowledge. The lead agencies for commitments and milestones should have a clear mandate to implement the work. Where a commitment is implemented by different agencies, the specific milestones should be assigned as such. There is need to strengthen interagency coordination between implementing agencies, perhaps through an interagency collaborative framework.

·       The OGP steering committee could work with the Ministry of Finance to include funding of OGP activities in the national budget. The drafters of the next action plan can consider developing a budgeted implementation matrix identifying available resources and areas where additional funding is needed.

·       During action plan implementation, the Steering Committee (government, CSOs, private sector and other interest groups) should convene quarterly to monitor progress. Meeting outcomes should be published so all interested stakeholders can be kept apprised of progress.

3.     Ensure full implementation of the Freedom of Information Act

To ensure effective implementation of the Access to Information Act passed in 2016 it is essential to improve record management and empower oversight institutions such as the Commission on Administrative Justice and the National Archives. To ensure timely and effective implementation in practice, the next action plan could include regulations for implementation of the Act and develop these regulations through an inclusive stakeholder consultation process to further implement the law.

4.     Open contracting and beneficial ownership transparency

The next action plan could include commitments that are particularly relevant to the controlling illicit financial flows and reducing public sector corruption. The commitments can capitalise on the achieved successes in the area of open contracting and beneficial ownership transparency and include further measures to continue progress.

·       Open up IFMIS contracting processes and take necessary steps to start publishing contracts in Open Contracting Data Standards.

·       The law on beneficial ownership transparency needs to be strengthened to require the following information on beneficial owners: tax ID number, nationality, country of residence, and a description of how control is exercised. The National Registrar should be mandated to verify all recorded beneficial ownership information, including relevant information such as identifying all company shareholders. An independent auditing authority should be set up to verify information recorded in the Registrar and define clear rules for the frequency of inspection and consequences for reporting false or inaccurate information. The information reported to the Registrar should be investigated for inconsistencies, comparing findings and information using other independent and reliable sources

·       The current action plan does not include a commitment on asset declaration of public officials. The next plan can focus to strengthen regulations on asset declarations to include more oversight, strict monitoring and enforcement.

5.     Expand and protect civic space and civil liberties:

The next action plan should include commitments to protect or expand citizens’ rights to organise, speak out, and report on government. These commitments should directly respond to issues of shrinking civic space in Kenya by ensuring that laws, regulations, and executive policies do not inhibit civil liberties and freedoms. Commitments could focus on making it easier for NGOs/CSOs to register their organisation, receive and maintain funding, and organise and communicate to carry out their activities.

Table 5.1: Five Key Recommendations

1

Improve the action plan development process

Engage local level civil society and create commitments with clear and measurable objectives that build on open government initiatives from the first action plan. Identify lead officials responsible for each commitment and milestone.

2

Address commitment implementation challenges

Ensure there is a budget line for OGP, improve interagency collaboration and produce quarterly Steering Committee meetings to monitor progress.

3

Full Implementation of the Access to Information Act

To ensure timely and effective implementation of the law, take further steps to enhance record management and develop regulations to implement the law.

4

Open contracting and beneficial ownership transparency

Open up IFMIS contracting processes, publish contracts in OCDS, and provide beneficial ownership information on the new public beneficial ownership registry.

5

Expand and Protect Civic Space and civil liberties

The next action plan should include commitments to protect or expand citizens’ rights to organise, speak out, and report on government. Commitments could focus on making it easier for CSOs to register their organisation, receive and maintain funding, and organise and communicate to carry out their activities.


VI. Methodology and Sources 
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The IRM progress report is written by researchers based in each OGP-participating country. All IRM reports undergo a process of quality control to ensure that the highest standards of research and due diligence have been applied.

Analysis of progress on OGP action plans is a combination of interviews, desk research, and feedback from nongovernmental stakeholder meetings. The IRM report builds on the findings of the government’s own self-assessment report and any other assessments of progress put out by civil society, the private sector, or international organisations.

Each IRM researcher carries out stakeholder meetings to ensure an accurate portrayal of events. Given budgetary and calendar constraints, the IRM cannot consult all interested or affected parties. Consequently, the IRM strives for methodological transparency and therefore, where possible, makes public the process of stakeholder engagement in research (detailed later in this section.) Some contexts require anonymity of interviewees and the IRM reviews the right to remove personal identifying information of these participants. Due to the necessary limitations of the method, the IRM strongly encourages commentary on public drafts of each report.

Each report undergoes a four-step review and quality-control process:

1.     Staff review: IRM staff reviews the report for grammar, readability, content, and adherence to IRM methodology.

2.     International Experts Panel (IEP) review: IEP reviews the content of the report for rigorous evidence to support findings, evaluates the extent to which the action plan applies OGP values, and provides technical recommendations for improving the implementation of commitments and realization of OGP values through the action plan as a whole. (See below for IEP membership.)

3.     Prepublication review: Government and select civil society organizations are invited to provide comments on content of the draft IRM report.

4.     Public comment period: The public is invited to provide comments on the content of the draft IRM report.

This review process, including the procedure for incorporating comments received, is outlined in greater detail in Section III of the Procedures Manual.[Note130: IRM Procedures Manual, V.3 : https://www.opengovpartnership.org/documents/irm-procedures-manual.]

Interviews and Focus Groups

Each IRM researcher is required to hold at least one public information-gathering event. Researchers should make a genuine effort to invite stakeholders outside of the “usual suspects” list of invitees already participating in existing processes. Supplementary means may be needed to gather the inputs of stakeholders in a more meaningful way (e.g., online surveys, written responses, follow-up interviews). Additionally, researchers perform specific interviews with responsible agencies when the commitments require more information than is provided in the self-assessment or is accessible online.

Primary information for this report was obtained through four stakeholder meetings, individual interviews, and questionnaires when interviews were not possible.

The researcher participated in four stakeholder meetings held in Nairobi and Nakuru organised by the ODP, Hivos and Article 19 and CRECO respectively as of 27 May 2017. Respondents were kept anonymous, as this is necessary for freedom of expression.

The first stakeholder meeting was held in Nairobi on 22 February 2017. Participants were drawn from government ministries, departments and agencies, CSOs and the private sector, while the second meeting was restricted to CSOs only and was held on 23 May 2017. These meetings were in the form of roundtable meetings. The Nakuru stakeholder reflection meetings were held on 19–20 January 2017 and 20-21 March 2017. The Nakuru meetings drew participants from CRECO-implementing partners and county oversight committee members (these are citizen action groups from the county level) from Makueni and Elgeyo Marakwet counties. Nakuru was considered a more central location to bring together these participants. Multiple types of interaction were employed including facilitated sessions and group discussions.

The first Nairobi meeting was co-convened by the Office of the Deputy President and Article 19 in support of implementing Kenya’s second action plan. The purpose of this meeting was to: begin government, private sector and civil society coordination and engagement within the identified areas of the national action plan; support information and progress-sharing between all actors on initiatives, actions and plans in the implementing period since July 2016; coordinate planning for thematic groupings nominated to represent areas of commitment in the Kenya’s second action plan. Participants discussed the progress, implementation needs and working area commitments of Kenya’s second action plan 2016-2018. Stakeholders made reference to the following main points: the shrinking civic space and its impact on civil society as well as open government; the need for accountability in past, present and future implementation and resourcing; the need to make open government a high priority agenda with public officials; the impact of implementation limitations on access to information within the open government agenda; no direct budgetary provisions for open government in spite of an action plan for the same; the need to demonstrate collaborative approaches between government and civil society in realising the action plan commitments; progress in implementing climate and access to information legislation; and the development of mechanisms to track implementation of open government commitments.

The second Nairobi meeting was convened by Hivos and Article 19 for CSOs only with an aim of consolidating gains and tracking progress of commitment implementation as well as developing a communiqué outlining the CSO position on OGP and key requests to government. Further, the CSOs established work cluster meetings, created workplans with timelines up to December 2017, picked cluster organisers and set the next date for individual cluster meetings.

The first CRECO Nakuru reflection meeting took place on 19 and 20 January 2017 in Nakuru at Fairfield Hotel with a total of 28 participants (18 male and 10 female). The participants comprised of 20 COC members (10 from the two counties of Elgeyo Marakwet and Makueni), CEDGG, and MAPACA; representatives from the CRECO Secretariat and the IRM researcher were the facilitators. The main objectives of the induction meeting were as follows: to introduce participants to the project objectives and expected results; train and share OGP NAP II monitoring mechanisms; and to plan for project activity implementation in Makueni and Elgeyo Marakwet Counties.

The goal of the CRECO project titled “Monitoring and Supporting the Kenyan Government to Achieve OGP Commitments” is to ensure that both the national and county governments provide a conducive environment for accountability, transparency and service delivery through inclusive public participation in OGP. The key outputs for the project are: i) strong partnerships built between state and non-state actors for engagement on the second action plan; ii) awareness created among citizens for the second action plan to enable them to hold duty bearers accountable for open governance and second action plan processes; and iii) implementation monitored and findings and recommendations shared with relevant stakeholders for adoption. Key outcomes that the project aims to achieve include: broadened and increased number of CSOs engaged in current commitments and space widened for future engagement (the third action plan).

CRECO organised a second reflection meeting with the same target participants as the first reflection meeting. The status of governance and service delivery that relates to the OGP process was discussed and shared. Other outputs included sharing developed COC county work plans and strategies, and targeting governance institutions for engagements.

Individual interviews were conducted in various institutions. When interviews were not possible, the IRM researcher sent respondents questionnaires. Institutions that provided information were:

·       Office of the Deputy President

·       Ministry of ICT - ICT Authority

·       Ministry Environment and Natural Resources

·       Ministry of Sports, Culture and the Arts - Kenya National Archives and Documentation Service (KNADS) department

·       Ministry of Mining

·       National Treasury

·       Public Procurement Authority

·       Hivos East Africa

·       Article 19

·       Transparency International, Kenya Chapter

·       The International Commission of Jurists-Kenya Chapter

·       Kenya Association of Manufacturers

·       Ushahidi

·       Constitution & Reform Education Consortium

·       Parliamentary Initiatives Network

·       The Open Institute

·       The Africa Centre for Open Governance

·       Mzalendo Trust

·       Strathmore University - Extractives Baraza

·       International Budget Partnership

About the Independent Reporting Mechanism

The IRM is a key means by which government, civil society, and the private sector can track government development and implementation of OGP action plans on an annual basis. The design of research and quality control of such reports is carried out by the International Experts Panel, comprised of experts in transparency, participation, accountability, and social science research methods.

The current membership of the International Experts Panel is

·       César Cruz-Rubio

·       Hazel Feigenblatt

·       Mary Francoli

·       Brendan Halloran

·       Hille Hinsberg

·       Anuradha Joshi

·       Jeff Lovitt

·       Fredline MCormack-Hale

·       Showers Mawowa

·       Ernesto Velasco

A small staff based in Washington, DC, shepherds reports through the IRM process in close coordination with the researchers. Questions and comments about this report can be directed to the staff at irm@opengovpartnership.org.