Helb Response On Engagement Of Law Enforcement Agencies To Prosecute Loan Defaulters
Helb Response On Engagement Of Law Enforcement Agencies To Prosecute Loan Defaulters
Nairobi, 22nd February, 2019. On 20th February 2019, the Higher Education Loans Board launched HELB’s 2019-2023 Strategic Plan, dubbed HELB Agenda 2019-2023, at the Nairobi’s Laico Regency. In her speech the Cabinet Secretary for Education made the following pronouncement:
“We are also going to partner with our law enforcement agencies to track down those holding jobs and yet are reluctant to stand up to be counted as responsible and patriotic citizens who honor their debts. This will include tracking graduates working in enterprises such as Mobile Transfer services such as MPESA, Airtel Money and other emerging jobs.”
Consequently there was public uproar mainly as a result of the CS comment being taken out of context and misconstrued. The focus of the statement however is to promote compliance, integrity and to ensure access to funds for future loan applicants from needy backgrounds. HELB therefore wishes to draw the attention of the public to The Constitution of Kenya, The Higher Education Loans Board Act, Debt (Summary Recovery) Act, Law of Contract Act, National Police Service Act and the Office of Director of Public Prosecutions Act. Law Enforcement is defined as the action of compelling observance of or compliance with the law. Any individual, office, department, division etc. can be a law enforcer as authorized or designated by the respect law to carry out enforcement. Accordingly, law enforcement agencies are government agencies responsible for enforcing the law. The police force is just but one of such enforcement agencies.
The Higher Education Loans Board (HELB) was established by an Act of Parliament –CAP 213A of the Laws of Kenya in 1995 to finance Kenyan students pursuing higher education. The philosophy behind this is to create a revolving fund from which future generations can borrow in pursuit of higher education. One of the main sources of the HELB fund is monies recovered from past loanees through various recovery mechanisms. To ensure compliance, HELB Act under Section 15 (2) stipulates that loanees, who default on loan repayment, including those who are employed, shall be guilty of an offence and liable to a fine of not less than five thousand shillings in respect of each loan deduction that remains unpaid. This is in addition to any other action that the Board may take against the defaulter. The additional action can be interpreted to include civil and criminal actions.
Section 16 of the HELB Act provides that every employer shall be required, subject to and in accordance with the HELB Act or any regulations made thereunder (a) upon the employment of any loanee to inform the Board in writing within a period of three months of such employment. None- compliance by employers attracts criminal liability under section 17(2). Further, Section 26 of HELB Act provides for the court orders to be made in the event of conviction of offences under the HELB Act in respect of the debt. The order obtained does not prejudice other remedies that HELB may obtain. The section further provides that an inspector or other officer of the Board may institute criminal and civil proceedings on behalf of the Board. Section 15(2) of HELB Act provides that any loanee who fails or neglects to satisfy the requirements of subsection 15(1) (on loan repayment) within the stipulated time shall, in addition to any other action that the Board may take against him, be guilty of an offence and liable to a fine of not less than five thousand shillings in respect of each loan deduction that remains unpaid in accordance with provisions of subsection (1), and such fine shall be payable to the Board.
Section 17 of HELB Act provides that where an employer fails to deduct loan repayments from a loanee or does not pay such deductions to the Board he/she shall pay a sum equal to five percent of the total amount of the repayment for each month that the repayment remains unpaid. Further, if an employer fails, without reasonable excuse, to notify the Board that he has in his employment a loanee, that employer shall be guilty of an offence and liable to a fine of not less than three thousand shillings for each month that he fails to notify the Board of such employment. Section 14(5) of the HELB Act states that where a guarantor who has been notified by the Board that he/she to pay the loan and fails or refuses to repay such loan together with any interest accrued thereon, the guarantor shall be guilty of an offence and liable to criminal prosecution or civil proceedings or both in accordance with the provisions of this Act. Section 24 provides that an inspector appointed under section, 22 may subject to the general or special directions of the Attorney- General (read Office of Director of Public Prosecutions- ODPP) prosecute in any court for all offences under the HELB Act and for that purpose have powers conferred on a public prosecutor by the Criminal Procedure Code (Cap 75) Section 32(3) provides that where no other penalty is prescribed, a person guilty of an offence under the Act shall be liable to a fine not exceeding Kshs.10,000 or imprisonment for a term not exceeding three (3) years.
The Constitution under Article 157 establishes the Office of the Director of Public Prosecutions (ODPP), its powers and functions. The Director of Public Prosecutions has the sole mandate to initiate prosecution against criminal offences and has power to direct the Inspector- General of the National Police Service to investigate any information or allegation of criminal conduct. The Office of the Director of Public Prosecutions exercises state powers of prosecution of crimes either directly or through delegation of its authority to other state agencies. Several public institutions have such delegated authority to prosecute. They include NHIF, NSSF, KEBS and HELB to name but a few. Before 2010, public prosecutions were being undertaken by the Office of the Attorney-General, who had then gazetted some HELB staff as public prosecutors to prosecute offences under HELB Act. Several offences are created under HELB Act (sections 13 (3) furnishing false information, 14 (5) guarantors who refuse to repay, general offence under section 32(2), Loanees who neglect or refuse to repay 15(2) Employers who neglect their responsibilities under the Act 17(1) Obstruction of inspections 23(3) and disclosure of confidential information 32(3). All these offences fall under ODPP but the office has delegated prosecution to HELB. ODPP remains the overall owner of the prosecution’s. When the Constitution took effect in 2010 and the Office of ODPP became operational, ODPP re-gazetted HELB prosecutors.
Default in Loan repayment according to the HELB Act is a criminal offence and therefore HELB can seek the intervention of the Officer of the Director of Public Prosecutions where loanees and employers are breach of Section 15 and 16 of the HELB Act. It is in this context that the CS’s speech must be viewed. Indeed, HELB will collaborate with ODPP and other relevant agencies to enforce loan repayment as provided for under the HELB Act.
In addition this is not just loan repayment and statutory obligation. It is also an issue of integrity. Loan repayment is reflection of honesty and high moral character in an individual’s professional and personal life; it is also an indication of respect for statutory obligations arising under various Acts of parliament. It is inconceivable that a person whose dreams were empowered through a HELB loan can willfully fail to repay their loan. It is not only and illegality but also wrongful conduct in furtherance of a personal benefit and can be construed as misuse of public resources. HELB funds are meant to finance higher education for needy and deserving Kenyans not to be withheld for personal benefit. The Constitution under Article 43 provides that every Kenyan has the right to Education. HELB is committed to upholding the right to education for future needy loan applicants.
HELB’s vision ‘universal financing for Kenyans pursuing Higher Education’ and mission ‘to provide sustainable finance to Kenyans pursuing Higher Education though mobilization and prudent management of resources’. The Education CS emphatic statement regarding using law enforcement mechanism is intended to ensure the vision and mission is achieved.
It is important to remember that HELB listens, come and talk to us so that we can agree on a minimum reasonable rate that will reduce your outstanding loan and help you finish your loan repayment. Penalties are levied as per the HELB Act due to non-communication and commitment to repayments therefore constant communication and full disclosure on self –employment or type of employment by the loanee is therefore key to negotiating and coming up with an amicable solution. Penalties are also NOT levied for the following:
- Beneficiaries within the moratorium period of one year
- Beneficiaries under mandatory internship for specified internship period.
- Loanees in the disciplined forces and are under the specified training duration as will be guided from time to time.
- Beneficiaries on deferred studies due to Illness
It is important to emphasize that engaging the support of law enforcement agencies is predominantly to deal with perennial loan defaulters particularly those who are employed and promote compliance and integrity in loan repayment. This is the only way we can fulfil the promise of empowering Kenyans dreams.
Mr. Charles Ringera.
Notes to the Editor About Higher Education Loans Board
The Higher Education Loans Board (HELB) is a state body established by an Act of Parliament – CAP 213A in 1995 mandated to provide loans, bursaries and scholarships to Kenyans pursuing higher education in recognized Kenyan Universities and Colleges and to recover the same after completion of studies to facilitate establishment of a revolving fund. The Board is therefore well aligned to Chapter 4, Section 43 (1) (f) of the Constitution of Kenya 2010, that every person has the right to education.
In case of any queries, contact Ms. Wavi Muigai, Corporate Communication & Customer Experience Manager on firstname.lastname@example.org or 0708726533