Corruption: Kenya’s Peculiar Problem is Impunity

In 2014, when John Githongo, Chief Executive Officer Inuka Kenya Trust rose to speak at the 4th Human Rights Watch Film Festival, one thing that he said was, “The ruling elite blow hot and cold and seem divided with regard to rampant corruption. With the discovery of oil the potential for the toxic mix of graft, tribalism and both organic and state engineered insecurity to blow up in our faces has never been higher.”

The Effectiveness of Anti-Corruption Agencies in East Africa Kenya, Tanzania and Uganda 2015 Report with regards to Kenya noted that, “corruption remains endemic to Kenya’s public sector. The media and civil society have, for at least a decade, freely exposed corruption scandals; however, this exposure has not ended corruption and its attendant impunity. The laws and institutions to combat corruption are in place and yet the situation does not improve.”

“Prevention, suppression and punishment of corruption frequently feature in Kenyan political rhetoric, but rarely is this rhetoric matched by action,” the executive summary read.

John Locke the world’s renowned scholar in his theory perceives man as a good creature who dwells on positive achievements.

On the other hand, his counterpart scholar, Thomas Hobbes build his contradiction on Locke’s theory hence considers man as an evil creature who live on destruction.

The society we are living in today tends to get worse and worse each passing time due to manipulations of characters of its occupants.

We have failed to unmask evils committed by the few at the expense of majority of innocents. Failure to condemn what we actually see as wrong has led to jam packing of challenges where many of which have reached maturity stage, to uproot or shove them from our footpaths it requires bulldozers.

As a matter of fact vices such as corruption in Kenya today are at the peak because of lack of willing men and women with confidence to fight it. Current surveys shows Kenya is among the leaden countries that are lagging behind because of rampant corruption that are existing in various sectors of economy.

Before the 2016/17 fiscal year budget was presented before the National Assembly, PKF East Africa, a tax firm said Kenya loses over 50 percent of its National Budget to corruption despite the positive steps taken to combat it in the public sector, the adverse effects in various agencies of government ‘cannot be overlooked’.

March 2016, Kenya was ranked as the third most corrupt country in the world. The rate at which individuals in power are looting public property has won them a global recognition and soon the world title of ‘World Number One Most Corrupt Country’ will be ours.

It is now being globally said that Kenyans are skilled thieves. That Kenyans steal with passion. That they steal like there is no tomorrow.

According to a report released by PricewaterhouseCoopers (PwC) the rate economic crimes in Kenya is 25 per cent above the global average. In the year 2015 alone, economic crimes rose to 61 percent from 52 percent in 2014.

Subsequently, Transparency International’s corruption index placed Kenya 145th out of 176 countries with a score of 26.
This was a drop of 6 places in the index from 139 in 2015 with 26 points behind Rwanda (54) and Tanzania (32) in the East Africa Community.

TI states that the human cost of corruption is huge, yet all too often leaders with notoriously corrupt records continue to enjoy lives of luxury at the expense of people living in grinding poverty.

For instance, Kenya President Uhuru Kenyatta during the state of the nation address at Parliament buildings, Nairobi on 31st March 2016 said there are more than 360 corruption cases before the courts, most of them involving senior public officials.

The National Youth Service corruption scandal is still ongoing bringing in both the lowly and the mighty. The developments of the scandal have metamorphic from the affidavit that was sworn before a court of law by former Devolution Cabinet Secretary Anne Waiguru which named Elgeyo Marakwet Senator Kipchumba Murkomen, National Assembly Leader of Majority Aden Duale and the personal assistant to the deputy president Farouk Kibet as individuals who took part in the disappearing of more than 790 million shillings.

Currently, the scandal has turned into a political war. A war declared on Waiguru relegating the agencies to the periphery.

Just like what has become the norm in the country, ‘triumphantly’ Waiguru has joined the race for Kirinyaga governor’s seat.

On the other hand, former Judiciary Chief Registrar Gladys Boss Shollei has also declared she will vie for a political seat in 2017 shelving off allegations of impropriety of where Sh80 million has been lost in the judiciary that have been leveled against her.  She was accused of “incompetence, misbehaviour, violation of prescribed code of conduct for judicial officers, violation of Chapter 6 and Article 32 of the Constitution of Kenya and insubordination.”

The Eurobond Saga is still fresh in Kenyans minds where it is alleged  that close to 100 billion shillings were looted are yet to be either fully denied or confirmed. The issue was fully politicized and soon Kenyans forgot about it.

Former Prime Minister Raila Odinga has emerged and said, “The 2014 Eurobond (or any proposed issuance) runs the risk of being converted into or being declared an Odious Debt on the basis of three widely acknowledged tests for Odious Debt : Absence Of Consent, Absence Of Benefit that the expenditure of the Eurobond Proceeds were not applied towards the public benefit or for the intended purposes to fund Infrastructure Projects (in respect of the expenditure from the Eurobond proceeds that the National Treasury cannot account for or provide a list of projects funded by the Eurobond .”

President Uhuru Kenyatta in 2015 declared corruption a threat to National Security.

“I believe that corruption is a standing threat to our national security,” President Uhuru Kenyatta said in televised remarks. “The bribe accepted by an official can lead to successful terrorist attacks that kill Kenyans. It can let a criminal off the hook for them to return to crime and harming Kenyans.”

This was a spill over after the joint committee inquiring into the Westgate Mall terror attack of 21 September 2013, which killed 67 and wounded 200, thus concludes in its final report that,

“Corruption has greatly led to the vulnerability of the country in many cases, including where immigration officials are compromised, thus permitting ‘aliens’ who could be terrorists to enter the country and acquire identification. This [affords] terrorists ease of movement … . They are therefore able to plan and execute attacks without fear of discovery. Further compromising of security officials enables [the individuals concerned] to fail to pursue suspected terrorists and enables [such terrorists] to secure early release when caught or reported [as participating] in suspicious criminal activities”.

However, the declaration seemed to have motivated a new crop of thieves as well as encouraging the existing ones to steal more.

There is the 50-million-shilling Chickengate IEBC scandal.

According to the particulars of offence, Christopher Smith, Nicholas Smith and Smith and Ouzman limited between the 1 st October 2008 and the 31 st December 2010, with Trevy James Oyombra, and with Joseph Hamisi Dena and Hamida Al Kibwana, and with officials of the Interim Independent Electoral Commission, namely James Oswago, Ahmed Issack Hassan, Kenneth Karani, Davis Chirchir, Ken Nyaundi, corruptly agreed to make payments to officials employed at the Interim Independent Electoral Commission of Kenya, as an inducement or reward for showing favour to Smith and  Ouzman Limited in relation to the award of and payment for contracts to print materials for the Interim Independent Electoral Commission of Kenya.

In the case, Christopher John Smith, former chairman of Smith & Ouzman, was convicted on two counts of corruptly agreeing to make payments while his son Nicholas, a former sales and marketing director at the firm, was convicted on three counts of the same offence.

Timothy Hamilton Forrester, the firm’s former international sales manager, and Abdirahman Mohamed Omar, a sales agent, were acquitted.

It is commendable that after 7 years since the Chickengate scandal, the former electoral commission chief executive officer James Oswago alongside Trevy Oyombra and Hamida Ali Kibwana have been arrested by detectives from the Ethics and Anti-Corruption Commission.

Now it is time to know if the due process will be followed to unravel the truth and those found guilty put behind bars and money lost recovered.

I believe Kenyans still want to know who was involved in the unlawful acquisition of the Sh1.5 billion Tokyo Embassy after the Anti-Corruption Court freed the former Foreign Affairs Permanent Secretary Thuita Mwangi, Allan Mburu and former deputy director of administration in the ministry, Anthony Muchiri, after the court ruled there was no evidence to warrant putting them on their defence.

Other key corruption scandals that still exist include:

55.6 billion shillings is said to have gone down the drain during the Jomo Kenyatta International Airport New Terminal in an irregular tendering through Kenya Airports Authority.  This was through the cancellation of the proposed Greenfield Terminal (GFT) which aimed at increasing capacity of JKIA from the current 6 million passengers per year to about 20 million passengers annually by the year 2030, but was cancelled.

However, the Irungu Nyakera, Principal Secretary, State Department for Transport said, “The cancellation of the Greenfield project at JKIA was neither a result of conservative outlook on the economy of Kenya nor a bearish attitude towards investment in airport infrastructure from the side of government.”

Related: We are to blame for the chronic corruption in Kenya; not Uhuru or the people around him

What next for Kenyans?

Kenya ratified the United Nations Convention against Corruption (UNCAC) on 9 December 2003. On 3 February 2007, Kenya ratified the African Union Convention on Preventing and Combating Corruption (AU Convention). Kenya is a partner state and has expressed support for the draft East African Community Protocol on Preventing and Combating Corruption.

The Ethics and Anti-Corruption Commission (EACC ) is a founding member of the East African Association of Anti-Corruption Authorities (EAAACA). As of July 2014, Kenya’s national assembly had passed laws to domesticate the UNCAC and AU conventions, including the 2012 Leadership and Integrity Act, the 2011 Ethics and Anti-Corruption Commission Act, and the 2009 Proceeds of Crime and Anti-Money Laundering Act.

The Economic Commission for Africa’s fourth Africa Governance Report (AGR IV) titled, “Measuring Corruption in Africa: the international dimension matters “ argues that existing measures of corruption are predominantly perception-based, and that they ignore the international dimension of corruption.

The Report questions the credibility and reliability of corruption indices that focus on country ranking or naming and shaming, but offer minimal policy insights and practical recommendations to inform policy reforms. Thus, it lays importance of measuring corruption and of understating its international dimensions.
“Policymakers must understand the importance and implications of viewing corruption as a broader phenomenon where private agents share significant responsibility, and where many unethical acts, which can be regarded as corrupt, may not necessarily be illegal or located within the public sector,” says Carlos Lopes, United Nations Under-Secretary-General and Executive Secretary of the Economic Commission for Africa.

Kenya needs to get past the point of celebrating the existence of the legal and institutional instruments needed to fight corruption and start to use these to end its perennial status and ranking as a country in which corruption is rampant. Kenya has never suffered for want of adequate legislation; its problem is impunity and lack of operationalisation of laws and policies.

Kenya’s peculiar problem is impunity

Challenges we are facing today from bad governance to domestic feuds do emerge as a result of lack clear road map that would guide us on how we should coexist and handle various matters in the society whenever they sprout.

We are overwhelmed with myopic characters that are hindering the nation from realizing her dreams. Yes, it has become hard to get ourselves out of the bandwagon of challenges and register our colorful name on the global map just like other developed worlds due to lack of political will. And this is where the rubber meets the road.

Related: Top 13 Corruption Scandals Under the Jubilee Government