OSEN: Adani deal: What Kenya can learn from US in graft fight

During a recent public meeting at Jeevanjee Gardens by Treasury CS John Mbadi discussing the proposed Finance Bill 2026, a member of the public wondered aloud why we do not simply legalise corruption and tax it heavily, given that we are already losing a third of our annual budget to it tax-free.

While this is, for many, a non-starter, it could point to a bigger issue the speaker was trying to highlight in our long and chequered battle against corruption, state capture and the shameless looting of public funds.

Looting of public funds by those entrusted to oversee them is hardly a head-turner in Kenya. The latest such incident is the arrest of Patrick Analo, the Nairobi county planning chief, whose house and vehicles were raided by Ethics and Anti-Corruption Commission sleuths, with up to Sh65 million allegedly found stashed in travel bags.

It is reasonable to reckon that the Nairobi case is merely the tip of the iceberg of what is happening in counties across the country, and please don’t get me started on the national government.

The Urban Development and Planning Department is one of the most influential offices at City Hall, overseeing development approvals, planning permissions, change-of-user applications and enforcement of urban planning regulations across the capital. Investigators believe Analo allegedly received up to Sh170 million in bribes between the 2019-20 and 2025-26 financial years.

While he was swiftly arrested and taken into custody amid much drama and media frenzy, any keen observer of how mega-corruption cases are handled in this country can easily predict how the case is likely to end. Not much will happen to him.

The case will drag on in court for years before eventually being thrown out on grounds of insufficient evidence or procedural technicalities. Even if the evidence proves sufficient, the conviction may ultimately be for a far lesser offence, attracting little more than a slap on the wrist.

Given the foregoing, I think this is the context from which the Jeevanjee Gardens speaker was coming: finding a way of redirecting looted public funds towards the public good while sparing the country the often-long-winded court processes that yield little which in effect, encourages more people to devise innovative ways of stealing from the public.

Consider how the Trump administration in the United States dealt with the highly publicised Gautam Adani criminal indictment. The Indian billionaire was accused of bribing Indian officials to the tune of $265 million to secure contracts and misleading US investors in relation to a solar energy project in India, allegations his company has consistently denied.

The case was in May this year dropped by the US Department of Justice after Adani pledged a $10 billion investment in the United States, an undertaking expected to create up to 15,000 jobs.

Adani Enterprises also reached a $275 million agreement with the US Treasury Department to settle claims in another matter regarding the purchase of liquefied petroleum gas that originated in Iran.

Prosecutors alleged that the company had purchased shipments of LPG from a Dubai-based trader that purported to supply Omani and Iraqi gas while overlooking red flags indicating that the supplies actually originated in Iran, according to the US regulator.

The regulator added that the settlement amount reflected the fact that the violations were “egregious and not voluntarily self-disclosed”.

Also, the US Securities and Exchange Commission settled a parallel civil lawsuit against Adani and his nephew, Sagar Adani, for $18 million, resolving allegations related to disclosures surrounding a solar energy project.

The decision came barely after Adani appointed Robert J. Giuffra Jr. to his legal team, who also happens to be one of President Donald Trump's personal attorneys, according to reporting by The New York Times.

The DOJ explained that it had “reviewed this case and has decided, in its prosecutorial discretion, not to devote further resources to these criminal charges against individual defendants”.

Put differently, American authorities appear to understand that judicial punishment need not always culminate in a custodial sentence. Rather, the relevant question is whether the outcome serves the greatest public good while consuming the least public resources to achieve it.

It is this understanding that seemed to be missing during the Adani-JKIA expansion debate, when public pressure ultimately saw the government terminate both the airport expansion and power transmission reform projects.

The fact that an individual or entity is tainted by allegations of corruption should not necessarily impede any public good that can be extracted from or through them.

Thankfully, our Office of the Director of Public Prosecutions already has a well-developed plea-bargaining framework that can be reinvigorated and applied more robustly alongside conventional litigation.

Cases ranging from Anglo Leasing to the NYS scandals, in which billions were carted away from public coffers, might have produced outcomes better aligned with the public interest had greater emphasis been placed on restitution and recovery rather than lengthy prosecutions that yielded little in return.