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September 23, 2018

MUNGAI: Is Ruto right to say corruption is an overrated threat to Kenya?

By its nature and historical context, corruption is a white-collar crime that includes acts ranging from outright theft by elites, rent-seeking in the public sector to usage of insider knowledge to procure economic advantages. 

In the context of a capitalist system, in which selfishness and greed are not necessarily considered as vices, it is understandable why there is remarkable moral ambivalence about the crime of corruption. This moral ambivalence means unlike say robbery, corruption is not a crime that law enforcement agencies fight all the time. It therefore makes headlines whenever a season of fighting it comes along.

In the current anti-corruption purge, the man in the eye of the storm is Deputy President William Ruto, whose supporters are convinced the crackdown is politically motivated to cut him down to size over 2022 succession politics, rather than bona fide enforcement of criminal law.  Invariably, in the heat of all this, a fortnight ago, the DP had an interesting interview with NTV’s Mark Masai, where he made several remarkable observations about corruption in Kenya.  Asked whether he takes responsibility for the rising cases of graft, the DP said the Executive has played its facilitative role to the agencies mandated to spearhead the fight before he quickly lamented that we make corruption a big issue, yet “the biggest threat to Kenya is not necessarily corruption, but leadership that has no vision, that is incompetent and has no plan”

For avoidance of doubt, the DP hastened to add that despite graft claims, the Jubilee government has built the standard gauge railway, connected five million Kenyans to the national grid and built additional health referral facilities.  Accordingly, in Ruto’s reckoning, incompetence rather than corruption, is the bane of Kenya’s economic progress.  Strictly speaking, Ruto has a valid point cynical as it sounds.  Empirical evidence shows many European, Asian and Latin American countries went through the kind of corruption plaguing Kenya but somehow managed to survive and so corruption per se need not be the major reason why some states have failed or lagged behind economically.  It is equally true that countries whose governing elites were generally competent from a technical point of view have fared well economically, despite the prevalence of Kenyan-type corruption.  Admittedly, a governing elite should be competent and corruption-free and so it is certainly cynical to entertain the choice of what is a greater evil between corruption and incompetence.  Yet, when the man best positioned to be Kenya’s Fifth President decides to make a choice himself, reason demands that we must discuss the issue.

As a lawyer, I must say the debate about incompetence and corruption is a constant controversy in the legal sector.  During Justice Aaron Ringera-led purge of the Judiciary in 2003, there was a heated debate about the kind of judges who should be forced out of office, and the major issues revolved around judicial corruption and incompetence.  The targeted judges were classified into three broad categories.  First, some judges were viewed as generally competent but corrupt.  Second, some judges were viewed as incompetent but not corrupt and third some were considered as both corrupt and incompetent.  Those in the latter category deserved to be forced out without much ado but opinion was split about the other two categories.

To some lawyers, incompetence was a greater handicap for a judge than corruption because there is a fair likelihood that a competent but corrupt judge might decide nine out of ten cases well and compromise only one case. However, an incompetent but uncorrupt judge might decide all the ten cases badly.  Legal practitioners are yet to resolve this debate particularly because the number of judges under the category of corrupt and incompetent is still rising.

Viewed against this backdrop, Ruto appears to concede the inevitability of corruption in our society and reckons that it may be a necessary evil that might help the ambitious children of the poor to catch-up with their privileged counterparts who have inherited corruptly obtained wealth from their fathers.  In other words, if old money acquired through corrupt means 30 years ago is viewed as legitimate today, Ruto’s supporters are genuinely at a loss why the same corruption is a big issue today.  According to this logic, corruption should be tolerated so long as it does not stall or disrupt the business of government.  Incidentally, this is the crux of the matter to my mind.

To Ruto, the Jubilee government is corrupt but competent to use the above analogy and there are no good reasons why corruption should be made a big issue.  However, both anecdotal and empirical evidence support President Uhuru Kenyatta’s view that graft has become a massive issue in Kenya that deserves to be tackled as a national security priority.  Up and till early 1990s, when Kamlesh Pattni and Cyrus Jirongo’s YK92 happened, grand corruption was a preserve of a small circle of elites around Presidents Jomo Kenyatta and Daniel arap Moi.  Indeed under the former Constitution, few of the ministers, including the vice presidents were politically strong enough to engage in their own grand corruption schemes.

It is ironical that the 2010 Constitution, which was enacted to help fight corruption, has ended up giving impetus to the same vice barely a decade later.  Courtesy of the presidential system and devolution, Kenya is now not just threatened by the grand corruption revolving around the President and his circle but also the cartel surrounding the Deputy President, Chief Justice, the Speaker of the National Assembly and the 47 governors, all of whom are vested with and empowered by the Constitution to exercise sovereign powers on behalf of the people, which includes being custodians of public funds.  These 51 state officials are legally and politically powerful enough to engage in independent grand corruption schemes.  And so whereas it could be argued that Kenya could survive the grand corruption of small elite circles revolving around Kenyatta and Moi, it is highly unlikely it could survive for long the grand theft by so many personalities the Constitution vests with sovereign power.  Put bluntly, for its size Kenya has simply too many actual and potential big thieves!

The issue of proliferation of sovereign thieves is directly connected to economic growth because it means that today, the top echelons of government are held by officials working for themselves more than for the Kenyan state and its people.  To dramatize the point, can we trust our 51 sovereigns to safeguard Kenya’s interest when they go to Beijing and other capitals to negotiate deals with foreigners?  Economic statistics show between 1990 and last year, the aggregate returns of grand corruption have risen more than then times the increase of Kenya’s GDP.  Put differently, Kenya is losing to grant corruption at a faster rate than it is generating new wealth.  In short, Kenya cannot afford the current seals of grand corruption.

The final issue on grand corruption relates to the reckless abandonment with which grand corruption is perpetrated today.  Prior to the Goldenberg scam, the majority of the grand corruption scandals involved theft of funds in the course of supply of goods or implementation of projects.  However, during the Jubilee era, theft of funds for supply of air, completely defective goods and boardroom projects have become the rule rather than the exception.  This scorched earth theft resembles blue-collar plebeian looting more than traditional white-collar thievery by the patrician ruling classes.

Given the unique challenges facing Kenya, there is such a thing as sustainable and unsustainable corruption in my book.  Sustainable corruption occurs when the ruling class enables the rise of several local billionaires over a period of time in the course of producing national wealth.  On the other hand, unsustainable corruption happens when the ruling class devices unscrupulous schemes to share-out the national budget and to sell out the country to foreigners at the risk of the country going bankrupt.  A competent elite engages in sustainable corruption whilst an incompetent elite engages in unsustainable corruption.  What this means is that if the current scale of grand corruption is unsustainable and might bankrupt it sooner rather than later, Ruto’s inference that Jubilee government is understandably corrupt but otherwise competent cannot be true.

 The Jubilee government is both corrupt and incompetent, otherwise its officials should have known that every government project is not fair game for corruption and that making deals in every nine out of ten tenders is insanity reloaded.  Fortunately for Ruto, the buck stops with the President, who must confront this epidemic and address the unacceptable incompetence and corruption during the era of Jubilee. 

As the President continues with the anti-corruption war, he must also address the issues of the competence in his Cabinet and the Treasury, without which Kenya is doomed.  Two things must be addressed urgently.  The first issue is whether the current Cabinet is fit for purpose as the highest policy making organ of the state.  Second is whether the team running the Treasury has the required ideas to prevent Kenya from being mortgaged by China and other foreigners sooner rather than later.  The way I see it is that if Jubilee government was only corrupt but competent as Ruto would like Kenyans to believe, the ongoing anti-corruption crackdown would not be a compelling necessity for the President.

 

*The writer is a constitutional lawyer ([email protected]).

 

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