Of the many things said at this week’s Africog “State Capture” forum, the assertion by John Githongo on the state of Kenya’s anti-corruption architecture was poignant. Kenya’s first governance PS’s averment that Kenya had the most reformed legal and institutional anti-corruption frameworks in Africa and that we had reached the end of reforms for anti-corruption was on point.
Kenya’s reform journey started in the mid-nineties, when the World Bank and other international partners, who had lost hope in the ability of mainline government to fight corruption funded the Mwau led Anti-Corruption agency. Until then, the Chief anti-corruption prosecutor was the Attorney General, a member of Cabinet, yet everyone knew that the chief purveyors and benefactors of grand corruption were senior government officials including Cabinet Ministers. No one really expected any significant prosecution for grand sleaze.
The Kenya Anti-Corruption Commission was hived off the investigation and prosecutorial branches and given significant powers to investigate corruption. Interestingly, the powers to prosecute remained with the AG. Parliament also retained significant powers over the anti-corruption body and sacked any “rebel” anti-corruption czar. This dance continued until the 2010 Constitution which made several major changes to the anti-corruption infrastructure, curing, at least in the law, the mischiefs that had existed in the previous arrangement.
The Ethics and Anti-Corruption Commission was converted into a constitutionally independent organ no longer under the control of the Executive or Parliament. The office of the Director of Pubic Prosecution (DPP) was divorced from the AG. The DPP was also made into an independent organ, secured from the shackles of the Executive. The police, were also separated from the Executive, an important arrangement since many of the anti-corruption offences would still require the involvement of the police, especially the Directorate of Criminal Investigation. Most importantly, even the funding for these institutions, previously determined solely by the Executive, was transferred to Parliament.
Parliament then passed a coterie of laws to support the war against graft. Joining the Public Officers Ethics Act was the Anti-Money Laundering Act, the Anti-Corruption and Economic Crimes Act, and the Leadership and Integrity Act. Few countries in Africa, nay, in the world have such formidable legal and institutional anti-corruption infrastructure. And yet despite these frameworks, we have dawdled on the corruption arena for the last 20 years without any significant dents on this scourge. It is only in the last six months that some movement has been noted on this front with several senior bureaucrats, businessmen and politicians hauled to court and being pursued for asset recovery.
One hopes the current momentum will continue and it would be based purely on facts and be devoid of political partisanship and grandstanding. It must also be pursued to accomplish a result; the punishment of those that steal public monies.
It would make no sense to haul people to court only for cases to be dismissed because evidence was weak. What is interesting is that while there has been noticeable change in this arena in six months, there has been no change in the law or the Constitution with regards to corruption during that time. What has changed is the political attitude to corruption.
Top honchos must have realised that unless this monster was killed, or at least appeared to be under vicious attack, it would destroy the country, and might be the spark that causes Kenya’s revolution. Is the political commitment sustainable? One hopes so. It would make no sense to invest so much capital in a multiplicity of institutions, then deny them political oxygen that is so necessary to succeed in a war such as this. Indeed, if there was consistent political anti-corruption oxygen, much of this infrastructure would be unnecessary, and the war would still be won.
– The writer is an Advocate of the High Court Kenya
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