By Ndung’u Wainaina
The Kenya Private Sector Association (KEPSA) held a national anti-corruption conference last month. The conference brought together the different sectors, to discuss the measures to be implemented within their sectors to fight corruption internally and externally. The deliberations, it is envisioned, will lead to an amalgamation of the different strategies into a Grand Citizen-and-Sector-led Action Plan to combat corruption.
Corruption is the most neglected human rights violation of our time. It fuels injustice, inequality and depravation, and is a major catalyst for migration and terrorism.
This theft cheats Africa’s governments out of $50bn every year, which is why it demands the toughest sanctions there are for those who perpetuate it. It is the biggest threat to human security, as it discourages and destroys investor confidence, strangling development, progress and prosperity.
But merely talking about it won’t stop it. The test now is whether fresh anti-corruption promises can deliver in credible ways. Tackling corruption would mean greater political stability, and provide an environment for sustained social and economic development. This, in turn, would have a positive effect on the drivers of conflict, terrorism and migration.
A democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption. The prevention of corruption is essential not only to make government work for its intended purpose e.g. ensure that public officials are using their office to further the public interest and not to enrich themselves or others, but also to preserve public confidence in the governance and democratic processes.
The Constitution of Kenya 2010 reflects its framers’ intent to deal with corruption and this has led to the adoption of a number of provisions that limit the opportunities for self-enrichment. The Constitution reflects a significant concern with preventing corruption in all levels of the government.
The International Centre for Policy and Conflict participated in the conference and suggests certain concrete proposals that can help burn the practice down to its roots.
Political transparency law
The past year has seen no shortage of political scandals involving state officials. Scandals like these are troubling in both substance and frequency, and have contributed to historically low levels of trust in the government. Politicians who want to govern openly and honestly should limit their conduct to what financial disclosure laws require. There has to be strong disclosure laws to force and keep elected officials accountable. Additionally, laws must require elected officials to make public their tax returns, source of earnings, investments and properties.
This information will provide voters with an important avenue of comparing a lawmaker’s words against his or her record. Elected officials are expected to act within the law, which must also provide for disclosure and limits on what lobbyists and people seeking to do business with the state can give to public officials including ‘gifts’.
Achieving this could require stringent measures such as one that prohibits Members of Parliament from occupying public office created during their tenure or any public office whose compensation has been increased during their tenure. Finally, the country must control and demand full disclosure of the electoral campaign financing.
Income and asset disclosure system
It must be required of all state and public officers that prior to assuming public office they shall disclose their income, assets and private interests under the official oath. This system would provide a means for monitoring inconsistencies and/or irregularities in ways of detecting and avoiding potential conflict of interests before they occur.
To achieve this end, well-designed and managed asset disclosure modalities are needed. To ensure that the system does not fail, there is need to address the issues of inadequate legal framework, political resistance to implementation, inadequate resources, capacity constraints and lack of public awareness on their role towards the fight against corruption.
The success of the public income and asset disclosure system is further pegged on the integrity of process and the existence of ample and skilled personnel armed with technological resources that can adequately process the vast quantities of information submitted. Laws on money laundering must be tightened and professionals and institutions implicated in aiding and or abetting it be met with tough sanctions.
Declaration writs on the enforcement of the Chapter Six
The office of the Director of Public Prosecutions and the Ethics and Anti-Corruption Commission must urgently file a constitutional petition seeking declaration writs on the enforcement of the Chapter Six to deter corrupt practices and ensure that high standards of ethics and integrity in public service are adhered to by all public officers. Additionally, the two offices should work with the office of the Attorney General to consolidate comprehensive legal regime and enforcement on corruption, ethics and integrity to remove all existing loopholes being exploited.
Improving structure and operations of investigations
Investigations on corruption must thorough, credible and impartial, adopting a best-practice approach of teaming prosecutors, investigators and intelligence analysts to take on high-profile cases and targets. This is the practice former South Africa Scorpions used to attain a conviction rate pegged at more than 94 percent – besides recovering assets.
Both the Directorate of Criminal Investigations (DCI) and EACC must improve their structural and operational effectiveness by tightening internal investigatory protocols and procedures, securing fiscal and administrative autonomy, ensuring more open and independent leadership appointment and removal processes, as well as establish oversight mechanisms to better ensure investigations are done thoroughly and professionally.
Integrity in public service
The Constitution of Kenya 2010 ushered in a completely new way of governance. One of the fast-dawning realities is that the Constitution has established mechanisms that will, if fully brought to effect, sweep out a lot of state officers on the grounds of unsuitability to hold office. A key component here is that of personal integrity of state officers.
Public officials, whose actions, especially those undertaken in their personal/public capacities, are deemed to compromise the public office integrity, must voluntarily resign their positions of public office for two main reasons. The first one is to allow the legal processes to take effect and either confirm or exonerate the official from any unethical behaviour, thus clearing their names. The second is to accept that the perceived unethical practices, personal or otherwise as they may be, are not what the public, indeed government, expect from one holding a public office and therefore remove themselves permanently – or where they don’t voluntarily step aside, the appointing authorities act to relieve them of their official duties.
A broad look at, and making reference to, Chapter 4 on the Bills of Rights, Article 10, Article 28 and Article 73 shows that the standard of proof touching on the conduct and integrity of public/state officers is “neither that of criminal law, that is beyond reasonable doubt nor that in civil cases, which is on a balance of probability”. This would create a clear distinction between presumption of innocence as articulated in the administration of criminal justice, and integrity standards expected of public/state officers.
No business with government for its employees
All public and state office holders (appointed and or elected) must be barred from doing business with the government and its organs of state either directly or indirectly, and/or being a director of a public or private company conducting business with the State. Those who fail this measure must not only be sacked/step down but should also be prosecuted. This will not only deter conflict of interest and corrupt practices, but will also enhance ethics and integrity in public service. The Public Service Commission (PSC) must look at compliance with the requirement to submit financial disclosure forms, scrutiny of the financial disclosure forms, actions taken where cases of conflict of interest were identified. The PSC, working with EACC and other independent bodies, must manage the financial disclosure framework as part of promoting a high standard of professional ethics in the public service.
Open government policy, planning and budgeting processes
Budgetary and fiscal transparency is fully entrenched in the Constitution of Kenya 2010 as a fundamental component in curtailing corruption, and building equitable and fair democratic systems in the public finance management. Policy formulation, planning and budgeting processes form the epicentre upon which corrupt deals are anchored through flawed and opaque processes.
In full compliance with the Constitutional right to information, Access to Information Act 2016 and Courts’ decisions on right of citizens to access information held by state and its agencies, the entire policy, formulation, planning, budgeting and implementation processes must be demystified and made open to public scrutiny and accounting. All information touching on all governmental ministries, departments and agencies on their macroeconomic assumptions for the budget year, expenditure data for all programs, nonfinancial data on program performance, tax expenditures, detailed information on off-budget activities and all debts, must be made available to the public, published and publicised. Procurement is the hotbed of all kind of corruption practices. The country must adopt and enforce open contracting.
Making this information available to the public and the legislature is a crucial step in ensuring accountability. It furthers the principles and values of open governance in all spheres of government and state institutions as well as creates and enhances mechanisms for better citizen participation, which is critical in ensuring public engagement in oversight of government. In policy development, ensuring inclusive and participatory legislative and decision-making processes are key in ensuring that the legislative wing of government becomes more transparent, responsive and accountable.
For these measures to bear fruits, they need a partner in a judiciary that is credible, objective and in full grasp of why people of Kenya adopted a new progressive Constitution in August 2010. (
— Writer is Executive Director, International Centre for Policy and Conflict; @NdunguWainaina
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
