By Achola Kevin
The engineering community in Kenya has been wrestling with change for some time now. The Engineers Act 2011 repealed the Engineers Registration Act CAP 530 with effect from 14th September 2012. The 2011 Act established the Engineers Board of Kenya’s (EBK) powers and functions which it also outlined. With this act, came promises and hopes which the now defunct Engineers Registration Board (ERB) and the policies around it had previously curtailed.
Kenya Engineer team on a technical tour of an engineering lab in Technical University of Kenya. An engineering student (front right) gives a technical demonstration while Editorial Board Secretary Booker Ngesa (front left), Kevin Achola (centre left) and TUK lecturer Dr. Faustine (centre right) look on
Two years on, the delivery pangs still surround the promises of the 2011 Engineers Act. On 5th September 2014, I was fortunate to be at a stakeholders’ workshop at the Kenya School of Government. At this workshop, participants discussed the Act, the draft regulations pertaining to it, continuous professional development policy, and the scale of fees for engineering works and services.
Ms. T. Achar presented the overview of the Engineers Act and several desirable provisions of the Act. She exalted the Act’s numerous virtues including its expected positive impacts on the engineering scene in Kenya. Ms. Achar observed that the Board has the power to delegate its functions as it saw fit in order to better perform its duties. ‘The Engineers Act 2011 does a lot to protect the practice of engineering in the country,’ she concluded.
After Ms. Achar’s presentation, a member of the audience, senior counsel Mr. Wachira Maina, raised some legal conundrums that may result from the Act. ‘The Board is set in a manner that it regulates engineering not engineering services,’ he observed. ‘The result is that unqualified persons have room to handle several engineering services. Other practitioners in the engineering scene, like technicians, are also not accommodated in the Act,’ he continued.
The senior counsel then observed, ‘The law does not take into account the devolved units enshrined in our new constitution.’ The Act is silent on how to handle devolution with which the country is currently dealing. Devolution will create some gaps considering that the counties are some of the major consumers of engineering services. Mr. Maina then went on to observe that the Act does not satisfactorily handle post project liability in regard to foreign engineers.
Also, the Engineers Act does not envisage the integration of East Africa. It does not take special consideration of engineers in the East African region, yet integration will allow free movement of labour within the member countries. Engineers will be able to move from other East African countries and ply their trade in Kenya without limitations. It is worth noting that countries like Tanzania have already passed Kenya in the number of engineers which they produce.
Tanzania has well over 10,000 practicing engineers whereas Kenya has less than 2,000. Tanzania and some other East African countries subject their engineers to regulations different from those laid down by EBK, yet their engineers will receive equal consideration within East Africa. Since we are already at a deficit as a country with regard to engineers, it is not hard to see that there will be a net influx of foreign engineers into the country. By the way after integration, in order to bypass EBK, inventive Kenyan graduates might go register in Tanzania, come back, and practice in Kenya.
Delegates at the meeting raised questions with respect to the Accredited Checker. What are the functions of the Accredited Checker and what is the Checker’s position in the pecking order? Furthermore, how does the Accredited Checker relate to other engineers within the pecking order?
‘Article 36(2) of the Constitution of Kenya says a person shall not be compelled to join an association of any kind. Yet the Engineers Act 2011 compels one to join the Institution of Engineers of Kenya to be considered as an engineer,’ said one stakeholder. ‘As such,’ he added, ‘the Act goes against the constitution, the supreme law of the land.’ To this, the chairperson of EBK, Eng. D.M. Wanjau, said that the bill which preceded the act went through parliament, and therefore, anyone with a problem with the act’s provisions should address that problem to parliament.
Delegates observed that the Engineers Act and the board to which it gave rise did not make provisions to handle public concerns. The Board set the 5th September 2014 meeting with the backdrop of EBK’s newspaper announcements about accredited engineering undergraduate programs. This announcement scuttled the dreams of many students and stirred a public outcry as such announcements often do.
As the last Kenyan President was preparing to leave office, there was a rush to give middle level colleges university charters. The then-outgoing president gave out several charters, but EBK did not follow suite in recognising the new universities’ engineering programs. This discrepancy resulted in students sitting in lecture halls little knowing that their professional body would not recognise their credentials.
There was a less than organised transition between the parent universities and the constituent colleges. Take the case of Technical University of Mombasa (TUM) which got its charter in January 2013. Those students whom Jomo Kenyatta University of Agriculture and Technology (JKUAT) had admitted to TUM when TUM was just one of JKUAT’s constituent colleges now find themselves under a new dispensation according to which EBK has not accredited their programs.
At the meeting, Dr. Faustin Ondore, a chartered engineer in the United Kingdom and a senior lecturer at the Department of Aeronautical and Aviation Engineering at Technical University of Kenya (TUK), highlighted the plight of the students. ‘As a result of EBK’s actions, the students and their parents are now thrown into a state of panic,’ he said. The Kenya Universities and Colleges Central Placement Service (KUCCPS) have continued to send students to undertake these non-accredited programs.
In his delivery, Dr. Ondore also observed that there is no clear path to becoming an engineer in Kenya. It is little wonder that we have about 20,000 graduate engineers but less than 2,000 of them have made it to become practising engineers. The transition from graduate to practicing engineer is terrible and presents the engineering community a vile truth with which to contend.
After the meeting’s tea brake, Ms. Achar presented the draft regulations. Then, Eng. Grace Onyango and Eng. Michael Okonji jointly presented the scale of fees for engineering services. The draft regulations sparked robust discussions with Eng. Mwangi, the Chairperson of the Association of Consulting Engineers (ACEK), weighing in with an eloquent speech in support of the engineering consulting industry.
The major issues which stakeholders raised were around the ownership and running of engineering firms. The contentious section 5 of the regulations reads:
Requirements for registration of an engineering consulting firm [include]. . . Proof that one of the shareholders is a licensed Consulting engineer.
Proof that all other shareholders and all directors are professional engineers. Provide the Board with certified copies of PIN, VAT and valid Tax compliance certificates of the firm.
Delegates argued that these requirements are over protective and retrogressive to running an engineering consulting firm as a profitable business. When Mr. Maina Wachira was asked how lawyers deal with these issues, he said ‘PricewaterhouseCoopers is the largest worldwide, provider of legal services yet it is not a law firm.’ He advised that EBK should be alive to the realities in the business world.
Currently, firms need a multi-disciplinary approach to handling business. Take the example of the annuity framework on which the Ministry of Roads and Infrastructure is working. The framework brings together contractors, consultants, bankers, equipment providers, material providers and the government to handle road projects. Engineers will be members of teams with other professionals.
Delegates suggested EBK should eliminate some of the requirements and leave tax compliance to the registrar of companies and the Kenya Revenue Authority. The delegates wanted the section changed to accommodate non-engineers as shareholders.
When Eng. Nicholas Musuni presented the continuous professional development (CPD) policy for engineers, some issues cropped up. These issues included deregistration. Section five of the document states, ‘CPD record forms for a particular calendar year must be filled and submitted by 30th March of the following year. Failure to submit the CPD record sheet as stipulated within the stated period shall result in the removal from the register during the next calendar year.’ Those present wanted to know exactly what activities CPD is comprised of and how they would be assessed. It is worth noting that this CPD approach pays attention to the already registered engineers and ignores the initial stages of development. There are no guidelines on initial professional development immediately after graduation, the stage in an engineers’ development where Kenya looses out most. An engineer’s development framework would serve Kenya better at this moment to beef up the number of practising engineers.
Stakeholders also wondered what would happen to retired engineers. Would they instantly loose a title they had worked for all their life? ‘An engineer should be able to retire with his title,’ Professor Harry Kaane said while chairing the plenary session. Additional delegates, who also proposed a review of this policy, joined in.
The presentation of the document, ‘The Scale of Fees and Conditions of Engagement for Consulting Engineering Services in Kenya,’ elicited healthy sentiments. The delegates recommended that it should be revised especially in regard to the duplication of works. Delegates suggested an upward review of the rates. During this session, the issue of engineers ‘undercutting’ each other arose as some delegates wondered how engineers would be motivated to adhere to these rates and not under quote each other.
Such public engagements and dialogue are a good way for EBK to serve engineers since no one has a monopoly of knowledge and being familiar with the currents that are blowing in the engineering community will make EBK more responsive to the industry. Kudos EBK. In his closing remarks, the chairperson of EBK, Eng. D.M. Wanjau, assured the stakeholders that EBK will act on their sentiments, and he welcomed more comments via email. EBK was, in fact, set to meet with the learning institutions the following week to address the thorny issue of accreditation of programs.
EBK and all the stakeholders in the engineering sector must do a lot more to make engineering claim its spot in the country. Engineers in Kenya will only attain a position of influence and competence through unity, integrity, and objectivity amongst all stakeholders in all deliberations. The pipeline for engineers from learning institutions to practise is dire. Dialogue is a good move; may action follow.