• Laws can be very detailed and beautiful but for them to be effective, there must be men and women who are willing to implement them.
• Lack of political goodwill is the single most important reason why we have the law but the effect of it is negligible.
During an interview on Monday, January 18, President Uhuru Kenyatta confidently made the serious and shocking revelation that Kenya was losing Sh2 billion a day to graft.
A simple calculation, going by the President’s estimate, would suggest the country could be losing Sh730 billion annually, if the looting is an everyday affair, or Sh522 billion, if it occurs only Monday to Friday.
One estimate of Kenya’s 2019 gross domestic product — the total value of all goods and services produced in the country — was about Sh9.5 trillion. The Sh522 billion would be 5.5 per cent of that. Kenya’s estimated expenditure (budget) for 2020-21 was Sh2.79 trillion. The 522 billion is 18.7 per cent of that — nearly one-fifth of the money budgeted to be spent for the good of the country and the people of Kenya — disappears into the pockets of the corrupt.
The President’s figures, while a very rough estimate, dramatize a sad reality. It is unfortunate that he did not follow up with a clear, concrete plan for stemming this haemorrhaging of public money.
In 2018, the media carried a very disheartening story on corruption in Kenya, observing that for years, then Auditor General, Edward Ouko, had been pointing out how taxpayer's money is siphoned off by government agencies. The media has also compiled, using Auditor General’s reports, the total amount of money suspected to have been lost to corruption. A crunching of numbers from the last five annual Auditor General reports, which either gather dust in Parliament or are ignored by investigative agencies, show taxpayers could be losing an average of Sh trillion annually.
The possibly Sh5 trillion lost to corrupt individuals, cartels fuelled by leaky government processes and an incorrigibly corrupt public service could have run the country’s budget for two financial years!
Corruption happens at both levels of government, counties emulating the malpractice at the national level. Taps of public resources are shamelessly opened to profiteering, buccaneers lining up as suppliers of goods and services to governments at both levels.
This at a time when ordinary Kenyans live in a reality where medical workers are on strike for lack of pay, Covid-19 tax relief has been lifted and more taxes imposed, crime is on the rise yet police may not respond for, say, lack of fuel for their vehicles.
INTERNATIONAL EFFORTS AND LAW
Corruption is both a local, regional and international crime and it is even related to terrorism and it is the desire of the world to jointly fight the menace.
Lingering in the mind of right-thinking people is the question: “Why such corruption while we have an abundance of law, national and international to combat corruption?’’
First, we have the United Nations Convention against Corruption that was adopted by the General Assembly in 2003 and Kenya and a host of African states have ratified it. The preambular declarations of the convention alone capture the desire of the international community to stigmatize the vice of corruption as one of the major causes of insecurity in the world.
The international community is concerned about the seriousness of problems and threats posed by corruption to the stability and security of societies. Corruption not only undermines the institutions and values of democracy but also dilutes ethical values and justice. And we must not forget the jeopardy to sustainable development and the rule of law.
There is also a clear link between corruption and other forms of crime, in particular organised crime and economic crime, including money laundering. The United Nations is convinced that corruption can no longer be treated as a local matter but a transnational phenomenon that affects all societies and economies, making international cooperation to prevent and control it essential.
It is for these reasons that the UN calls for a comprehensive and multidisciplinary approach to prevent and combat corruption effectively.
The statement of the purpose of the convention has several facets. They include promotion and strengthening measures to prevent and combat corruption more efficiently and effectively.
It also aims at promoting, facilitating and supporting international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery and to promote integrity, accountability and proper management of public affairs and public property.
We also have the African Union Convention on Preventing and Combating Corruption, adopted in Maputo on July 11, 2003. It represents a regional consensus on what African states should do in the areas of prevention, criminalisation, international cooperation and asset recovery. Unlike other conventions, the African convention calls for the eradication of corruption in the private as well as the public sector.
This convention covers a wide range of offences including bribery, domestic or foreign, diversion of property by public officials, trading in influence, illicit enrichment, money laundering and concealment of property and primarily consists of mandatory provisions. It also obliges the signatories to introduce open and concerted investigations against corruption.
NO SHORTAGE OF NATIONAL LAW
At the national level also we have a compendium of law to combat corruption. We have a Chapter Six of the Constitution on Leadership and Integrity. This has had mixed fortunes with some describing it as pious highfalutin’ platitudes lacking in teeth.
There are also the national values and principles among which transparency is a core value. Chapter 12 on Public Finance, the principles and values of public services in Chapter 13 of the Constitution all have strong and clear principles on how to run an upright governance system.
Other than the Constitution, there are statutes including the Penal Code, and he Ethics and Anti-Corruption Commission, the Proceeds of Crime, the Anti-Money Laundering, and the Public Officers Ethics Acts.
It is beyond peradventure that the local and international legal frameworks are strong enough and they complement each other.
At first sight, Kenya would seem to have what Transparency International calls a “National Integrity System”–a complex of institutions and procedures, within government and in society that “When these governance institutions function properly, they constitute a healthy and robust National Integrity System, one that is effective in combating corruption as part of the larger struggle against abuse of power, malfeasance and misappropriation in all its forms.”
The international conventions are part of Kenyan law. We have the Constitution and the various statutes and the regulations under them. We have the institutions – the EACC, the Director of Public Prosecutions, there is a section of the courts specifically to deal with corruption cases; we have the Controller of Budget and the Auditor General. The Constitution was supposed to break with the past – introducing technocrat Cabinet secretaries, and increasing the oversight role of Parliamentarians.
Back to the question of why we have thriving corruption despite what might seem a more than adequate legal regime to combat it!
Laws can be very detailed and beautiful but for them to be effective, there must be men and women who are willing to implement them. Lack of political goodwill is the single most important reason why we have the law but the effect of it is negligible.
You do not expect people who have sneaked into politics through proceeds of corruption to dismantle their own political foundations. This is together with the fact that the commercialisation of politics in Kenya converts even those who join politics with good intentions to forego their principles and join the gravy train.
And there is the rub: We all know that our systems do not work properly, are not allowed to work properly, because the very sections of society that should be regulated by them actually control them.
It is pointless to call, as some do, for stiffer penalties. Penalties don’t apply until an offender is caught, tried and convicted.
Nor do we need new law. What we lack is that mysterious quality, political will –the people who have the real power must have the willingness to use it. And the people must cease to accept that corruption is somehow normal.
Lempaa Suyianka is a litigation counsel at Katiba Institute