Gladwell Otieno
The East African Standard (Nairobi): Opinion
September 15, 2003

The Anti-Corruption and Economic Crimes Act (ACECA) and the Public Officer Ethics Act (POEA) are crucial in the war against corruption.

The former seeks to provide a comprehensive framework for prevention, investigation and punishment of corruption and economic crimes, and the latter to enforce codes of conduct prescribing minimum ethical standards for the entire public service. A key action under the ACECA is the formation of the Kenya Anti-Corruption Commission (KACC), albeit devoid of the powers to prosecute.

The requirement under the POEA that public servants declare their wealth was a further innovation under the NARC regime, although one attended by significant limitations, such as those on access to the information by the public. Presently, other instruments, such as the Public Procurement Bill 2003 and the Public Finance Bill 2003 are awaiting debate and enactment.

The five year anti-corruption campaign announced by President Mwai Kibaki is aimed at achieving a sea change in the cultural attitudes of Kenyans towards corruption. In Kenya decades of endemic corruption have fundamentally perverted cultural values, with looters being admired as “tycoons” and honest public servants derisively asked, “what have you done for yourself?”

Peter Eigen, Chairman of Transparency International, stated during a visit to Nairobi, “The fight against corruption will be a very long-term fight. There may be a couple of low-hanging fruits to be picked, where the government can have some visible success very quickly, particularly if the government begins to strengthen some of the key institutions like the judiciary, introduce new arrangements like the Ombudsman, and if they begin to look at other methods which are important for creating strong integrity systems”.

It would appear that the first phase, marked by the attainment of those successes within easier reach, has ended. Transparency International (TI) defines corruption as “the abuse of entrusted power for private gain”. This very broad definition applies not just to transactions involving illicit exchange of money- or bribery- but to the abuse of power in general. It also goes beyond targeting government alone but applies equally to the private sector and indeed to civil society; wherever there is abuse of entrusted power, there is corruption.

Having said that, Kenya’s historical experience of corruption has been largely that of corruption emanating from the highest levels of the state to become endemic, well-nigh ubiquitous, in society. As in other African countries, corruption in Kenya has been inextricably intertwined with the nature of the modern African state that is driven by patronage and derives its legitimacy from an ability to create and dispense patronage.

Since 1995, when TI first published the Corruption Perceptions Index (CPI), Kenya has performed very poorly, always in the bottom ten per cent and ranked 6th worst in 2002. It is not to be expected that Kenya will fare very much better in the next CPI due later this year. This is because the CPI is based on a three-year rolling average. Since fundamental changes in the levels of corruption in a country evolve only slowly, while public perceptions may change more swiftly and to some extent be influenced by short term events, TI determined to base the CPI on a three-year rolling average. Thus the next CPI will constitute more of a judgment of the past regime than of the present one.

However, it is not only, or even primarily, international perceptions that are important or relevant here. Kenya has had, and continues to have, a significant and debilitating problem of corruption. Transparency International Kenya’s own research, such as the annual Kenya Bribery Index, and that of other groups such as Centre for Law and Research International (CLARION), the Kenya Anti-Corruption Commission and most recently, the reports of the task forces and commissions set up by the new administration such as Engineer Andrew Kiptoon’s recent report on road construction demonstrate that the haemorrhage of Kenya’s economy continues at a dizzying rate.

So how does one go about fighting endemic corruption?

An essential step is by enhancing transparency so that more people can scrutinize the abuse of entrusted power and by enhancing accountability mechanisms so that there are controls on the use of this entrusted power. Access to information, and the reduction of limitations on this access to an absolute minimum, for example as demanded by an extremely restricted interpretation of the legitimate requirements of national security, is the “oxygen” on which transparency and accountability live.

But it is not that easy, as government readily admits. Reversing the effects of decades of systematic looting and indeed unrestrained plunder is a task of intimidating difficulty.

No country which has adopted an anticorruption programme as a priority has had an easy ride.

Which is why people refer to a “window of opportunity”: this means that the time to turn things around or give a sustainable start to the process of reform is very short. Experience in other Third World countries attempting a transition from an unaccountable and corrupt past, shows that an 18 -24 months window of opportunity opens up during which public support and confidence about the future can facilitate the implementation of a range of anti-corruption measures. As World Bank President Wolfensohn pointed out in Nairobi in July, “You stay centre stage with everyone loving you for a very short time in this world”. If within 12-18 months concrete irreversible progress has not been made, then several things are likely to happen:

People may lose faith in the assertion that fighting corruption is a condition precedent for economic recovery and growth. They will instead demand delivery of services, which the government, caught in a Catch 22 situation, would find itself unable to deliver precisely because of corruption. One of the main motivating forces for the fight against corruption is the attempt to free up resources for development. This would lead to a loss of legitimacy by government. The centrality of anti-corruption as a policy imperative for this or a future government would diminish and Kenya would slip back to the state of endemic corruption. Early in the window of opportunity it is imperative that the patronage networks that facilitate corruption are broken up and legal and policy measures taken to ensure that new networks do not take their place- graft abhors a vacuum.

Such measures would include ensuring that the reform process is not obstructed by existing state institutions manned or controlled by the “counter-reformers”, those who benefited from corruption. Why? Because the corrupt tend to be persons formerly in control or often still in the employ of the state; they can use the massive resources accumulated through graft to frustrate reform. They are richer, since they have the loot; they can get custody of the evidence; they can obstruct the judicial process; they are accustomed to manipulating and subverting the system.

How is one to disrupt these networks? Firstly, by personnel change, ranging from purging through vetting to early retrenchment, transfer and also by legal reform, and prosecution. The wholesale sacking of senior procurement officers by the Minister of Finance illustrates some of the dilemmas attendant on these strategies; far-reaching action is necessary to break up the cartels that dominated and continue to dominate entire government departments. These actions, however, led to the near-paralysis of important areas and to the growth of demands for the unblocking of that paralysis, even, perhaps, at the risk of sacrificing accountability and transparency. The advisability of picking one’s battles wisely in the war on corruption is becoming increasingly evident. A fundamentalist approach, seeking to divest oneself of corrupt officials root and branch would be difficult to implement, given the extent of the rot and the limitations on resources. Removing the offenders without reducing or eliminating the opportunities for malfeasance would also be inadequate. Legal changes in terms of anti-corruption legislation, codes of ethics, procurement reform, are quite advanced. However, the laws need strengthening. As always, the ultimate test is their application and implementation.

The Kenyan transition, like any other, is clearly political and is attended by disclosed and undisclosed agendas. It is no accident that there has been quite a vigorous campaign with various accusations being levelled against government officials. Partly this is evidence of the media doing their work of exposing possible and actual corruption and abuse of power, as it is their duty to do. Partly, however, this may also be an indication that those who feel most threatened by an anti-corruption campaign are moving to defend themselves. Conversely, public officials cannot realistically expect their political enemies to refrain from using the ammunition which they themselves, through their own actions or omissions, provide. That is unrealistic and dishonest, since they would do, and have done, the same, given a reversal of roles. The ethnicisation and politicisation of the anti-corruption campaign in Kenya is a further complicating factor, with communities complaining of being unfairly targeted for political vendettas. Despite the President’s frequently declared commitment to the corruption fight, there are still great challenges that lie ahead.

It would appear that corruption networks of the past, and even of the present, are re-examining the current situation, and restructuring as well as repositioning themselves with a view to keeping Kenya under their grip. Hon. Kiraitu Murungi seems to have been alluding as much in his speech at the National Anti-Corruption Workshop held in July entitled “Beyond Illusion: The Struggle Against Corruption in Kenya”.

It is important to recognize that initially, Kenyans had great faith in the government’s initiatives but currently, public cynicism is developing regarding government intentions. A perception of public sector extravagance is growing and “task force fatigue” is in danger of setting in. Post-election euphoria, when everything indeed seemed possible, has been forgotten. Partly this is quite natural; human memory is a fickle thing and the magnitude of the changes Kenya has gone through has faded against the difficulties of the daily struggle for survival. It must be remembered that the struggle against corruption is a long-term one, which must be fought on many fronts. We have entered the phase when the honeymoon is over and disillusion begins to set in, as the magnitude of the task we have undertaken becomes ever more apparent.

The early months of this year was a season in which the “low-hanging fruit” such as Goldenberg looked ready to pluck. At that time, it would have been difficult to argue that the NARC government needed watching for corruption from within. However, within the past few months, Kenyans have been subjected to a spate of allegations and counter-allegations of graft in high places. Some of these accusations seem grave enough to connote contravention of the Public Officer Ethics Act and the Anti-Corruption and Economic Crimes Act, if founded. They should be taken seriously and addressed as they are causing doubts in the minds of Kenyans as to government’s frequently stated commitment to a policy of zero tolerance of corruption.

Fundamental to note is that civil society must continue playing a watchdog role to ensure that the government, as well as other sectors, continue to be subject to the light of intense public scrutiny. Corruption thrives best in the dark. The role of the media has been mentioned in this regard. The role of civil society organisations in general has changed radically under the new dispensation and this sector is still grappling with the implications of that change. From a stance often characterised by automatic suspicion or outright rejection of government, civil society is challenged to move to a role of constructive criticism which continues to demand and encourage transparency and accountability, not as mere political slogans, but as seriously adhered to prerequisites for the building of a genuine democratic culture. The attention of civil society should, in this regard, also be directed inwards, towards itself and its own adherence to the principles that it seeks to defend.

The author is the Executive Director of Transparency International – Kenya.