The war against corruption is an Illusion

Vices are as old as humanity and they have grown in complexity. Public resources have been lost in the hands of a few well-connected individuals under the guise of ‘development’. Joe Biden, former US Vice President once said, “Corruption is a cancer that eats away the citizen’s faith in democracy, diminishes the instinct for innovation and creativity.”

The chain of corruption is long and has its extension to many in one way or the other. This leaves us with the question: Is corruption behavioral or an in-built systemic problem? The war corruption was publicly declared in 2003, with high investments on it. The nation looked like it was coming to a close of the vice but to haven’t crossed an inch.

Most billionaires in Kenya are not made through inventions or growth of ideas but from monopoly paved by the political system. Evidently, majority of them have had interactions with the government in one way or the other meaning that their wealth may have been gotten through shoddy dealings.  In the last 7 years, billionaires and millionaires have either doubled or tripled their wealth. This can be attributed to their relations with the government and dealing with influential persons in different capacities. For instance, take a look at some of the beneficiaries in NYS 1 and 2 and the 2014 Ministry of Health scandal, individuals who had no track record of wealth in each of these cases were created overnight.

The methods of corruption used or means of transaction have mutated to the extent where corrupt individuals do not have to exchange money. To some extent, profiteers of corruption have resorted to rewards such as properties, favors and merchandise. The primary institution bestowed with the responsibility of fighting corruption has also mutated and changed names with the intention of giving it more life and making it stronger and powerful. Currently, it is called Ethics and Anti-corruption Commission meaning it is an independent commission created by an Act of Parliament. The provision under Article 249 of the Constitution sets grounds with the intention to define not only the institution but also the holders of the institution and their relations to other offices created under the Constitution. This provision sets out the objects, authority and funding of the commission. The intention of having an independent commission is to create the ideal situation by ensuring that there is separation of powers to minimize interference from any other state organ in order to protect the sovereignty of the people. Therefore, commissions, including EACC are not part of the executive. The president appoints the commissioners as the head of state and not as the head government.

The fight against corruption is selective and seems to be targeting certain groups of people and political opponents.

It is my supposition that there is no deficiency in laws enacted to curb the vice of corruption. The Ethics and Anti-Corruption Act No. 22 of 2011 under section 13 (2) (c) gives the commission powers to investigate and arrest suspects for prosecution by the Office of the Director of Public Prosecution (ODPP).

Over and above that, the Anti-Corruption and Economics Crimes Act No. 3 of 2003 has an interesting provision under section 58 which talks to the presumption of corruption. This provision states: If a person is accused of an offence under Part V an element of which is that an act was done corruptly and the accused person is proved to have done that act the person shall be presumed to have done that act corruptly unless the contrary is proved.

My understanding of this provision is that it does not purport to curtail the presumption of innocence as ensconced in Article 50(2) (a) of the Constitution. However, this provision shifts the burden of proof to the accused person when prosecuting matters related to the Anti-Corruption and Economics Crimes Act No. 3 of 2003. An interesting perspective is to note whether this is the case of graft cases here in Kenya. In corruption cases prosecuted in countries like some states in USA and in China, this principle is important as an evidential burden is put on the accused person the moment the prosecuting authority is able to bring evidence showing loss of public funds.

Given the peculiar nature of economic crimes against the government, it is my opinion that when and if anyone in public office or a duty bearer is implicated in corruption, the burden of proof must shift automatically to him and he/she should be given an opportunity to account for every coin in his docket or department.  If he/she is unable to make an account of public funds under his/her department, then punitive measures such as fines and jail terms are introduced in order to deter fellow minded corrupt office holders. Additionally, I propose that anyone taking up public office is to sign an agreement that states: Incase of any loss of finances as a result of corruption, the office holder shall be personally liable for the loss and therefore the government can recover all the property stolen.

The current measures put in place to combat corruption are not sufficient as a result of various challenges. There is lack of institutional inclusivity in leadership as these positions are occupied by a few interconnected businessmen and women. Consequently, the leaders have conflicts of interest that chain them into a situation where they must make decisions that do not advance public interest but rather advance their own personal interests. Arguably, in order for institutions such as EACC or other independent offices to fight corruption, the status quo must be disrupted. As it is currently, the institutions are used by political leaders to fight, silence political opponents and pave way for their friends. Today the fight against corruption seems to be selective by targeting certain groups of people or political opponents. The fight against corruption is a manipulative and cajoling one and therefore the moment one joins to support the government of the day and not antagonizing the government one is deemed not corrupt. Politics plays a great role in determining the success of the fight against corruption.

Secondly, lack of knowledge and the dire social-economic situations in the country has chained and locked the citizenry from participating and determining the actions of politicians. Lack of knowledge is attributable to the neglection of civic education by CSOs and the peddling of wrong and misleading information by politicians. Today, the public relies on politicians for information. Unfortunately, politicians disseminate information based on their interests. To put this into perspective, they will peddle information as a currency to spread propaganda against their opponent. Politicians misinterpret information and manipulate the citizens by playing victims and defenders of their tribes. Ultimately, the citizens end up electing corrupt leaders into office having played the tribal card. Economically, the citizenry is impoverished and is in search of food.  Politicians continue to impoverish the lives of Kenyans and taking away the future of Kenyans by continued theft from public coffers and dishing out hand-outs to the citizens, creating a sense of dependency. Kenyans must be vigilant and resist the instant gratification of the moment and think of a sustainable future for its generation.

In conclusion, corruption can be fought when the citizenry is informed and is able to carry out social accountability through the ballot. The ballot, however, has to be freed from the mentality of tribalism and instant gratification from the hand-outs propagated by the political class. Furthermore, institutions such as the National Police Service or EACC should be independent and autonomous from political centers. The independence of these offices is protected through law should include financial independence and independence in appointments to office.

Submitted by:
Ahmed Maalim- Programs Manager