By Dr Charles Khamala
Unless proceedings are open to public scrutiny, officials tend to strike clandestine deals. “Organised,” “enterprise” and “syndicated” crimes thus display a market-basis and benefit from the business world’s analytical concepts. The effectiveness of different regulators is explicable by Marxist dialectics between the state, business interests, pressure groups and public opinion. Many lives can be saved, for instance, with rudimentary attention to safety measures to prevent the great harm emanating from the spate of Kenya’s collapsing building constructions and other industrial accidents.
However, Laureen Snider (2002) explains that industrialists, who sacrifice healthy working conditions upon the altar of profitability, compromise the state. Patricia Hillebrandt (1985) recognises that government expenditure accounts for over 50% of all infrastructural constructions in developing countries, which are not market-driven. Therefore, fewer accidents are expected from dilapidated roads. Yet the Kenya’s Ethics and Anti-Corruption Commission seems particularly unable to contain the spiralling spectre of criminal negligence by private developers, including foreign direct investors, inflicting deadly violence through corruptly flouting regulations and circumventing environmental, health and labour standards.
Transparency International’s 2015 Corruption Perception Index ranks “Kenya at position 139 out of 168 countries.” Its Executive Director for Kenya, Samuel Kimeu, explains: “The Ethics and Anti-Corruption Commission, the Department of Public Prosecution and the Judiciary all bear collective responsibility for the high corruption levels in the country.
These three departments are responsible for investigating, prosecuting and adjudicating corruption cases, and they have failed to deliver.” Despite legislative frameworks – wilting bureaucratic investigations, wanting prosecution will or adjudicative fear – explain why the criminal justice system mollycoddles, it is not just about corporate corrupters, but also official coruptees. In January 2016, Kimeu pointed out that “the failure to recover assets acquired through dishonest means has also contributed to an unabashed culture of corruption in the country.”
This commentary evaluates how lenient laws and partial polices neither deter supply-side nor reform demand-drivers of kickback pacts.
Edwin Sutherland’s (1949) “differential association” theory argues that white-collar crime flourishes because of a lack of organised resentment against ‘respectable criminals’. It rejects Sigmund Freud’s (1895) psychoanalytical theory that criminal pathology originates from childhood sexual dysfunctionality. Instead, Sutherland’s assertion of the criminal universality reinforces Karl Marx’s (1859) contribution to political economy, which says that, in order to sustain existing exploitative production relations and corresponding oppressive socialisation relations, the propertied class influences the content of legislation.
Marx’s “critique of liberalism and its ‘monadic’ individual abstracted from social relations” is lauded as “the single most influential idea in modern critical theory.” It implies that Africa’s 21st century anti-corruption laws and policies reflect Western bourgeoisie values to rid markets of the demand-driven bribe-solicitors, while ignoring supply-side tax evaders, i.e. multinational corporations.
Although credited for first recognising “white-collar crime,” Sutherland’s categorisation of it – as a crime “committed by a person in the course of his occupation” – is unsatisfactory.
First, his criterion labels sociologically controversial behaviour as criminal, for example, negligent work and product liability. Second, the decency of its location leads to a lack of clear “mens rea” on the part of perpetrators. Hence, in the case of “Ethics and Anti-Corruption Commission (The legal successor of Kenya Anti-Corruption Commission) v Stanley Mombo Amuti”  eKLR, the Court of Appeal held that section 55 of the Kenya Anti-Corruption and Economic Crimes Act, 2003, captioned “forfeiture of unexplained assets,” expressly shifts the burden of proof on suspects to explain the sources of their conspicuous, yet unaccountable wealth. Neither does so doing violate an accused’s “non-derogable” Article 50 “right to a fair trial.” Nor does it extinguish the need to prove guilty intent altogether.
Third, Sutherland’s criminalisation of behaviour simply on account of its novelty amounts to cultural chauvinism, particularly considering that technological innovation is often a pre-requisite for social transformation. Nonetheless, Section 49 of the Kenyan legislation provides that “custom is not a defence.” This provision expressly rejects the traditional cultural practice of “reciprocity,” whether between negotiating contractual parties, litigants and arbitrators or candidates and electorates, from shielding criminals who abuse economic power to distort market or public institutions.
Functional and control theories
At a cultural level, economic dominance contributes to crime. It promotes “anomie,” or “normlessness,” both in Emile Durkhiem’s (1893) structural sense of insufficiently regulated goals, as well as Robert Merton’s (1938) sense of insufficiently regulated means.
Unlike the latter’s “strain theory,” which advocates increasing physical or human capital to curb corruption, however, Travis Hirschi and Michael Gottfredson’s “social control theory” (1990), suggests that some people, despite barely breaking-even financially, resist the corrupt temptations, do so because of their ability to rely on ethical capital, induced through conditioning, by way of strong parental upbringing, on which to fall back.
I have argued previously that informational capital control theory may be construed so as to include relying on relational or social capital. In other words, it is in order to prevent their primary acts by thieves from being detected that they enter into secondary pacts with witnesses to buy their silence. It is which inducement the law terms bribery.
In March 2016, the EACC itself conceded that “two out of every 10 people seeking the most basic of services, such as medical attention, are forced to part with a bribe is the clearest indicator of a catastrophic failure in the tactics employed to fight corruption.” To survive in Kenya,” it “details how Kenyans are forced to part with bribes for services as reporting a crime to the police or even obtaining a national identity card.” Furthermore “with 0.8 per cent of those paying electricity bills having to give at least Sh5,000 in kickbacks while 13 in every 100 Kenyans seeking to get birth certificates have to pay Sh900 as a bribe to government officials” indicates that the vice is not preserve of the wealthy.
It is arguable that all crimes – of property or violence – are motivated not merely to relative deprivation of material goods, but to redress conspicuous unequal application of the law. Whether the inequality arises from police’s incapacity to investigate or arrest suspects, or the Director of Public Prosecution’s unwillingness to charge and prosecute accused persons or the court’s failure to convict and sentence them, the disparate outcome generates a perception of uncertainty, which creates a tendency to try to avoid detection or escape sanction, thus neutralising law’s deterrent effect. To the extent that the criminal justice system is unable to effectively deter or prevent corruption, society is forced to rely on social controls such as family values, schooling or religious morals to reform them through non-legal institutions.
Thus, George Herbert Mead (1925) defines “social control” as the ability by given actors within a complex social system, of influencing the meanings, which are typical of that system. John Braithwaite (2000) distinguishes justice as “that set of arrangements that allow people to make claims against other individuals and institutions in order to secure freedom against insecurity and domination.” By investing heavily in strong personal bonding, individuals therefore are unable to transcend social networks of respectability, and though not deterred by formal regulations, they may fear being snubbed by friends or losing business contracts. However, social controls seem unable to constrain political corruption where the perpetrators are our very own kinsfolk purporting to pilfer the public coffers on behalf of the very group which would otherwise condemn the vile act. Hence the state’s emergence introduces efficient and equitable legal sanctions.
Last month, Elgeyo-Marakwet Senator Kipchumba Murkomen said the committee overseeing electoral reforms was drafting legislation that seeks to block politicians from hoping from one party to another after losing nominations, locking them out of the election.” Such proposal would reverse the damage caused by an October 2012 amendment legalising party hopping, by passing the Elections Act (Amendment) (no. 2) Act no 32 of 2012. It heeds Robert Harris (2003) caution that “in politics, a gap inevitably exists between public discourse and private reality…
This dissonance between appearance and reality sets the scene for the theatre of deception which democratic politics can easily become.” He defines a highly corrupt state as one where “corruption has so infiltrated the organs of government as to make corruption the norm and honesty the sometimes dangerous exception.” Harris identifies part of the problem in defining political corruption as lying “in the assumption, underlying many definitions, that political corruption deviates from a norm, that it is an individual problem a metaphorical cancerous growth vulnerable to excision by…the surgeon’s…knife.”
We are equally justified in combining the informative metaphor, which in a previous commentary: “New Anti-Bribery Bill to fight Economic Violence,” I call the communicative theory of corruption, by extending Jeremy Bentham’s (1822) analogy – of corruption as akin to decay of organic matter – to the corrosion of iron, which rusts in contact with moisture. Hence preventing corrosion can be achieved by ensuring no contact with the eroding agency, just as the absence of “factitious obstacles” to communication makes possible “independent” public opinion. Electroplating iron is analogous to electing or legitimising public officials, hence freeing popular candidates from control by, or allegiance to, direct appointers and instead liberating them to respond to a wider democratic mandate.
The latest EACC survey conducted in 39 counties entitled “Corruption and Ethics in Devolved Services: County Public Officers’ Experiences, 2015,” (August 2016) “has exposed rampant corruption owing to lack of transparency in service delivery.”
Tenderpreneurial nepotism is “manifested in bribery, abuse of office, conflict of interest, nepotism, favouritism and absenteeism.” It recommends closing the door after the horse has bolted by way of “the development and implementation of an anti-bribery compliance policy at the county level to enhancement of public participation in the budgeting and project implementation process and ensuring value for money in road and other infrastructure construction to reduce corruption.” However, it is oblivious that inter-election corruption can be pre-empted only if an election is free and fair, whereupon a successful candidate becomes sanitised against secondary bribery from any particular lobby or interest group. Yet it is essential to first shield the ethnic electorate from exposure to primary bribery of vote buying.
Towards inoculating voters against ethnic bribery, Article 91(2) of the new Kenyan Constitution provides, inter alia, not only that “a political party shall not – (a) be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis” but also not “(d) engage in bribery or other forms of corruption.” However, the Political Parties Act no. 11 of 2011 failed to define ethnicity as a characteristic that marginalizes minority groups from regions that are traditionally poor.
Even within a tribe, politicians campaign on ethnic platforms by promising to patronise clan with an unfair and disproportionate amount of national development, if elected.
In “Musikari Nazi Kombo vs. Moses Masika Wetang’ula & 2 others”  eKLR “it was established beyond reasonable doubt that the two respondents (Wetang’ula and former Kanduyi MP Alfred Khangati) gave a sum of Sh260,000 to bishops, pastors and other participants in a meeting held at Red Cross, Kanduyi. The corrupt intention of giving the money was to influence and induce voters to vote for the 1st Respondent (Wetangula) as senator for the county of Bungoma”, Justice Francis Gikonyo ruled, annulling his senatorial election. However, in January 2016, Wetang’ula “got a political lifeline after the IEBC overturned the Supreme Court finding that would have led to his removal from the voter register for bribery.” Its tribunal argued that “because Wetang’ula had not been convicted by any court, it defeats the purpose of the Supreme Court’s findings that he be struck off the voter roll.” Curiously, the DPP omitted to institute bribery charges, notwithstanding petition findings on a balance of probabilities that he committed an election offence and senate directions triggering section 87(3) of the Elections Act.
In order to negate future ethnic political organising through corruption, the Political Parties (Amendment) Act, June 2016, redefines “ethnic minorities” as “a group that is not the dominant one in a given society.” Despite tightening against ethnic-cum-economic electioneering, that amendment still allows for the merger of hitherto minority ethnic political parties with majority ethnic entities, in pursuit of group development. Rather than endowing the Constitution’s Article 92(f) Political Parties Fund so as to build capacity of minority ethnic groups to sustain “their sense of solidarity, directed towards preserving their culture, traditions, religion or language,” as required by the Guide (1992) promulgated by the UN High Commissioner of Human Rights, it instead sacrifices democratic pluralism upon the alter of political corruption.
Significantly, former President Mwai Kibaki’s Justice and Constitutional Affairs Minister, Kiraitu Murungi, now Senator for Meru County, cited the absence of parliamentary funding for political parties as the major reason for Kenyan political corruption since 1992. During the signing of the United Nations Convention Against Corruption at Mérida, México in 2003, he stated that our country has been “one of the most corrupt nations on Earth.” Murungi “described sweeping reforms and judicial purges which had been instituted by the new government, and qualified it to enact ratification.”
Although Kenyan judges are unelected officials, nonetheless, some electroplating is conferred, under the 2010 Constitution to insulate their integrity. Significantly, their presidential appointments only follow upon parliamentary approval of the Judicial Service Commission’s competitively recruited nominees. Consider a March 2016 report where “the EACC reported that 50.5 per cent of people who had been asked for a bribe or witnessed corruption do not report due to ignorance, 21.7 per cent due to fear of victimisation and 20.9 per cent due to inaction by relevant agencies.”
This suggests that beyond merely enacting tough economic crimes that eliminate cultural defences or procedures shifting the burden on suspects, additionally, it is equally essential to appoint competent prosecutors with courage to charge and innovative judges with integrity convict and sentence both corrupters and coruptees to prison. In this way, whistle-blowers and witnesses, including officials, can be aided to resist temptation, not only from soliciting or receiving bribes, but also from remaining silent amid indecent offers to betray their public trust.