Commemoration of Africa Anti-Corruption Day a wake-up call to remain vigilant

The Ethics and Anti-Corruption Commission (EACC) on Tuesday, 11 July, led Kenyans in marking the Annual African Anti-Corruption Day. This commemoration provides a platform for anti-corruption stakeholders to reflect on the progress made, the challenges encountered, and the reform opportunities available in the journey towards the elusive but much-desired ethical Kenyan society.

The overall objective of African Anti-Corruption Day is to give prominence to the fight against corruption by commemorating the adoption of the African Union Convention on Preventing and Combating Corruption (AUCPCC) as a mechanism for fighting corruption in Africa.

The AUCPCC has five key objectives in the anti-corruption war, including to promote and strengthen the development of mechanisms required to prevent, detect, punish, and eradicate corruption and related offences in both public and private sectors; promote, facilitate, and regulate cooperation among State Parties to ensure the effectiveness of measures and actions against corruption and related offences; and coordinate and harmonise the policies and legislation between State Parties for purposes of fighting corruption.

The Convention also aims at promoting socio-economic development by removing obstacles to the enjoyment of economic, social, and cultural rights as well as civil and political rights; and establishing the necessary conditions to foster transparency and accountability in the management of public affairs.

The commemoration comes against the backdrop of the increased withdrawal of anti-corruption cases from courts of law against high-profile individuals in society and, fundamentally, of heightened affront on the anti-corruption legal framework by Parliament. The National Assembly is particularly hell-bent on mutilating the anchor statute in the anti-corruption legal framework, the Anti-Corruption and Economic Crimes Act (ACECA) 2003.

First, Mbeere North MP Ruku Geoffrey Kiringa proposed to amend the statute. Ruku’s Anti-Corruption and Economics Crimes (Amendment) Bill, 2023, proposes to amend Section 45 of the Act on the protection of public property and revenue by deleting the two offences prescribed in parts 2(b)and (c).

Section 45(2)(b)(c) reads thus, “An officer or person whose functions concern the administration, custody, management, receipt or use of any part of the public revenue or public property is guilty of an offence if the person — (b) willfully or carelessly fails to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures; or (c) engages in a project without prior planning.”

Since the enactment of ACECA in 2003, Sec.45, which dictates drastic and gross offences, has been instrumental in successfully prosecuting individuals involved in procurement-related corruption. The MP’s amendment, therefore, is dubious, ominous, and ill-advised and poses a huge threat to the progress made in the anti-graft war.

Predictably, another attack on the Act in the same Chamber of Parliament has followed Hon. Ruku’s in quick succession. In mid-June, Member of Parliament for Homa Bay Town, George Kaluma, proposed a Bill to amend ACECA by completely deleting Sec 64, which disqualifies those convicted of corruption or economic crime from being elected or appointed into public office for ten years after the conviction.

He argues that a convicted person will already have served punishment per the dictates of Sec 48 of the same law and that the ten-year ban is unfair.

That amendment would, should it get approval on the floor of the House, water down the Act and rob the anti-corruption war of the deterrence value inherent in Sec. 64. First, it would pave the way for appointed public officers who have been convicted for corruption or economic crimes to get their way back into public office. Secondly, it would embolden any public officer who may have been avoiding corruption for fear of the ten-year ban.

Sec. 48 of ACECA, which the MP wants the fight against corruption to rely on, dictates the penalty for the offence of corruption and economic crime. It spells a fine not exceeding Kes1 million or imprisonment for a term not exceeding ten years or both. It prescribes an additional mandatory penalty for a quantifiable benefit received or suffered due to the offence. The proposal that the war on graft should depend only on this to punish offenders is akin to trivializing the war on corruption.

The offence of corruption and economic crime is complicated. It is often mired in a web of connections of the high and mighty, and it is, sometimes, transboundary making it difficult to secure a conviction. It is not a big deal for the corrupt to pay the fines for their convictions and move on as if nothing happened in their lives. Deterrence, therefore, becomes a key pillar in the anti-corruption war.

For instance, An Anti-Corruption Court in Nairobi in March convicted the immediate former Member of Parliament for Bonchari, Mr. Robert Oimeke, for receiving a bribe of Sh200, 000 when he served as director of Energy and Petroleum Regulatory Authority (EPRA).

Mr. Oimeke had faced two counts of requesting a bribe of Sh500, 000 and receiving a bribe of KES200, 000. It was alleged that he leveraged his position as EPRA boss to frustrate the reopening of a petrol station in Nyanza whose license had been reinstated after fulfilling the requisite requirements. Senior Principle Magistrate, Peter Ooko, found the second count in the affirmative and fined the former legislator KES1 million or three years in jail in the alternative.

Former Energy and Regulatory Commission (EPRA) boss Pavel Oimeke got away with a slap in the wrist for taking bribes.

Mr. Oimeke held a position of trust in society that affected many sectors of the economy. His conduct eroded the trust in public institutions, which are mandated to act in the people’s best interest. It created a barrier to economic development and, at the same time, propagated inequality and injustice.

Oimeke walked away with a Sh1 million fine, which he could afford at the tap of a key on his Smartphone. However, with a conviction to his name, he was locked out of public office for 10 years from his conviction courtesy of Sec 64(1) of ACECA. With that removed, as per the proposal of Hon. Kaluma, Mr. Oimeke could be back in elective or appointive public service at any time.

Kenya should commemorate the African Anti-Corruption Day well aware that corruption is not only the proverbial strand of stringy meat stuck deep between the teeth, refusing to go away, but it is also viciously fighting back. It is a major pain point in the anti-corruption war, and the commemoration should be a wake-up call for all to remain vigilant.