Sunday, Mar 01st 2015

No Surprise At Failure To Tame Corruption

Saturday, March 17, 2012 - 00:00 -- BY MUGAMBI KIAI

So is there any hope with this lot? Media reports pointed to money changing hands – between Ksh 5,000 and Ksh 200,000 per Member of Parliament involved – so that the name of Central Bank Governor Prof. Njuguna Ndungu could be expunged from a Parliamentary Committee report where he had been adversely mentioned. Following the press stories, there were the expected denials but also sufficient noises to confirm that where there is smoke…

The paradox cannot be less stark: this is the same parliament supposed to pass credible legislation related to Leadership and Integrity as well as Ethics and Anti-Corruption! This is the same parliament supposed to pass legislation that will free public institutions from political control and patronage as well as ensure that there are sufficient checks and balances to the executive. This is the same parliament supposed to legislate around freedom of information, transparency and accountability.

We’re clearly in trouble, aren’t we? We cannot say that we have not been warned. There is already an almost intractable stalemate about who will head the next Ethics and Anti-Corruption Commission. The legislation establishing this body, itself, has been the subject of credible critiques that show that it will most likely enable corruption, rather than deter it. We should also remember the very incoherent and divisive parliamentary debate about the performance of former Kenya Anti-Corruption Commission director Justice Aaron Ringera where Kenyans were treated to exhibitions of ethnic solidarity rather than an impartial and objective evaluation of his performance in that office.

This irresponsible political behavior didn’t start yesterday. In post-independent Kenya, there can be little argument that all governments have gleefully engaged in kleptocracy. Perhaps the best indicator to this is in the wealth accumulated by those within the inner circles of the political elite that have populated these three regimes. In fact, to illustrate this point even more clearly, we can get more specific and ask about the earthly worldly possessions of the three post-independence leaders.

The debilitating effect of this wanton behavior on development has been well documented. The Goldenberg scandal, for instance, is estimated to have cost the exchequer at least $600 million. How many striking nurses at their requested salaries, would this have catered for? It is well known that the Anglo-Leasing scandal cost even more.

Yet, it is the lack of deterrent action that is patently striking. Every time there has been a discovery or revelation of a corruption scandal, there has been a concomitant effort – invariably successful – to cover it up. Hence, although the cupboard is overflowing to the brim with skeletons, its doors remain firmly shut to outside inquest and exposure.

The new constitution has provided a strong edifice to begin addressing this problem. It provides, at Article 10 (2) (c), for national values that include “good governance, integrity, transparency and accountability.” Chapter Six addresses Leadership and Integrity and under article 73 (2), the guiding principles of leadership and integrity are enumerated to include, among others (a) selection on the basis of personal integrity…(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by…corrupt practices…(c) (i) honesty in the execution of public duties; (ii) the declaration of any personal interest that may conflict with public duties; and (d) accountability to the public for decisions and actions. Under article 75 (1), a State officer is expected to avoid, among others, (a) any conflict of interest between personal interests and public or official duties; and (b) compromising any public or official interest in favour of a personal interest. Gifts or donations to a State officer on a public or official occasion are deemed to be gifts to the Republic under article 76 and under article 77 full-time State officers are not allowed to be in any other gainful employment.

As principles for public finance, article 201 (a) provides that there shall be openness and accountability; article 201 (d) provides that public money shall be used in a prudent and responsible way; and article 201 (e) requires financial management to be responsible and fiscal reporting to be clear. Article 226 provides for the accounts and audit of public entities and article 227 (1) requires that “When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.” Moreover, the office of Auditor-General is established under Article 229.

This list is by no means exhaustive. The problem isn’t in the print; it, definitely, is in the implementation and enforcement of this constitutional framework. First, as already alluded to above and as different critiques to the various pieces of enabling legislation show, the laws to provide for the implementation of the constitution are pervious and leaky. Second, the institutions that should implement and enforce the constitution and the law, as shown by the case in parliament with regard to the Central Bank governor Njuguna Ndungu, are suspect and compromised when it comes to ensuring integrity. Third, the public demand to hold both the legislation and institutions accountable is divided and polarized.

And it is this third concern that must cause us deep worry. Given Kenya’s history, it cannot be altogether unexpected that the legislation and institutional framework around transparency and accountability would be shaky.

However, it must cause serious concern that there is not the required critical mass to ensure that these are corrected. Clearly, there are no shortcuts here: Kenyans will either stand up to corruption or it will continue to consume and degrade the fabric of our society. Are you ready to bell the cat?

Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA