MUGWE: Corruption in Kenya: Who will guard the guards?

It seems everything else has failed, so let’s legalise it.

In Summary
  • If you were an alien visiting this country, you would be forgiven to think that there are not enough laws and institutions to annihilate this vice.
  • It seems that no matter how loud the hue and cry, this malpractice simply refuses to die.
EACC offices at Integrity Centre.
WAR AGAINST GRAFT: EACC offices at Integrity Centre.
Image: FILE

Quis custodiet ipsos custodes?

This is a phrase from the Roman poet Juvenal, which is translated as “Who will guard the guards themselves?” It is used to describe a situation in which those who have power to supervise or scrutinise the actions of others, are not themselves subject to supervision or scrutiny.

This question comes when was revealed revelation by the Controller of Budgets. She said when she was preparing the budget for consolidated fund services, the source of her salary, she discovered the National Treasury had budgeted three times what she is paid annually. She went further to reveal this was the case for all state officers. FOR HOW LONG?

As if to confirm this pervasive state of affairs, the Economic Adviser in the Office of the President revealed how a piece of equipment had been tampered with to budget 365 per cent more than the suppliers’ quotes. When the President was asked if he will let those culpable get away with it, he said he’d have to “drain the swamp”. That’s how ubiquitous corruption is in the public sector.

The corruption of government officials is as ancient as recorded history. The Roman Senate passed laws against corruption in the first century BC. Senators defined it as “whenever money is taken and a conferred duty is violated”.

The local magistrates in the Roman Empire were permitted to legally receive as much as 100 gold pieces a year. Anything ‘paid’ beyond that was considered filth. There was also a separate criminal category against what was called concussio, meaning shakedown or extortion. Concussio is the act of a Roman official claiming to have a legal order against someone and demanding a bribe not to enforce it against the individual’s person or property. Fast forward to what we witness on our roads daily with traffic policemen.

To curb runway corruption, Emperor Constantine issued one of the strongest decrees against graft in 331 AD. Those found guilty were to be exiled to an isolated island or to far-off rural areas, while others were condemned to death. Sadly, it did not deter corruption.

And just as in the Roman Empire, corruption has been a recurring decadence in this country. And the appetite keeps growing, while the fraud becomes more brazen. As we have heard, the budget process, which is very crucial to good development outcomes, is equally highly vulnerable to corruption.

If you were an alien visiting this country, you would be forgiven to think that there are not enough laws and institutions to annihilate this vice or punish its perpetrators. It seems that no matter how loud the hue and cry, this malpractice simply refuses to die.

Begs the question, what is the cure to drain the swamp? More laws? More task forces? More parliamentary committee grilling? More audits? Or more whistleblowers?

Albert Einstein told us that insanity is doing the same thing over and over and expecting a different result. In past corruption scandals, suspects have been asked to step aside; investigation and prosecutions have been undertaken. However, very few culprits have been convicted and sentenced. In fact, in most cases, we are only told of cartels that milk the country dry. What is bizarre is that almost everyone knows of their existence, but no one is bold enough to name them.

For how long will we acquiesce to being serenaded by accusations, investigations and long drawn-out inconclusive cases? Does this mean we’re us insane? Or is it time we changed tack?

I submit that to slay this hydra-headed dragon, we should do the hitherto unthinkable. We should legalise the illegal. We should, without apologies, decriminalise corruption.

In free market economies, there is a concept called willingness-to-pay. This is the maximum amount a consumer is willing to pay for certain goods or services. An example is when a football fan is willing to pay Sh1,000 to watch the match from the VIP dais, rather than Sh200 to watch from the bleachers.

In economic-speak, this is called consumer surplus.

Companies employ a strategy called price discrimination, to generate the most revenue possible for a product or service. The seller classifies clients in groups based on certain attributes, and charges each group a different price for an identical product or service.

For instance, in the aviation industry, travellers can self-select from a set package of goods and services.

Despite the fact that they will all fly on the same aircraft to the same destination, some travellers will have extra legroom, a fully reclining seat, receive more pampering and not have to queue.  For these perks, these travellers are willing to pay more and as a result, airlines gain from this consumer surplus. Other sectors that offer price discrimination are express laundry services in which you pay more for same-day service.

Likewise, to legalise corruption, the State should employ price discrimination. Those who collude with the State to charge inflated prices for their goods should do so legally in exchange for supply of premium goods and services. For example, they should supply silk not cotton goods, rag paper not chipboard or veal not beef. In addition, they should also pay higher taxes, licensing, registration and tender fees for the government to benefit from this supplier surplus.

Those in a hurry to be served should pay a premium price to receive an express service, for example, paying five times more for same-day passport issuance. They should also pay higher income tax, based on all the express services they received in that year.

The SRC should also price discriminate on salaries to allow State officers to self-select from different ranges. For example, officers who wish to benefit from procurement transactions should opt for a tenth of their job group’s salary, zero benefits and perks, a higher tax bracket and fewer years of State service.

As things currently stand, those in positions of authority and oversight have monopolised corruption.

However, being a free market economy, anyone should be free to practice corruption as long as there is willingness to pay. Allowing voluntary legal entry into this corruption sector, will not only reduce corruption, but will also increase revenue from consumer surplus and most importantly, it will give Wanjiku the variability in value that they receive over the price they are willing to pay for goods and services.

If legalising corruption is not a viable option, then we should slay this vice as in the Sicario film dinner scene. Because, the middle road in this spectrum has failed us. And when all else fails, we should try the inconceivable.

In this scene, the principled FBI agent enlisted to destroy the brutal Mexican drug cartel, stealthily walks into the drug lord’s house while he is having dinner with his family. The FBI agent, with gun drawn, icily reminds the drug lord that each night he orders other families to be killed, while he lavishly dines with his wife and children. The drug lord pleads with the FBI agent not to kill his family. Without hesitation, the FBI agent shoots them as he watches, then kills him last.

The moral is that the drug lord’s family should not continue enjoying the proceeds of crime, while other fatherless children and widows suffer from the crimes their father has committed. Likewise, if one is found guilty of corruption in Kenya, shouldn’t their family be deemed culpable too? For why should they continue enjoying the proceeds of crime, while the rest of us suffer? You be the judge.

Finally, my unsolicited advice to Wanjiku: when elephants fight or make love, the grass suffers.

Likewise, when those in authority and oversight collude or fight over corruption deals, you still suffer.

Quis custodiet ipsos custodes?

“Why join the navy when you can be a pirate?” – Steve Jobs

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