One of the most interesting (and disappointing) aspect of Kenya’s corruption is the extent to which key players in the country’s public service are involved in the vice. During the Goldenberg Commission of Inquiry hearings for example, a list of over 100 persons of interest included senior customs officers, senior managers at the Central Bank of Kenya, leading politicians of the time and even members of the Judiciary. The same case applies for Anglo-leasing.
The recent NYS scandal is panning out in exactly the same way. The affidavits and counter-affidavits, rumors on the street and media exposés indicate that when the truth of this scandal finally comes out we will find all manner of public servants were involved in scamming Kenyans; from senior ministry officials to parastatal heads to tender committee members.
The second observation one makes is how the private sector supports such scandals. We saw lawyers, bankers and investment advisors pulled into the Goldenberg and Anglo-leasing scandals, and we are seeing it happen in the NYS narrative. In fact, I am personally convinced that behind the kind of corruption scams we all cringe at Goldenberg, Anglo-Leasing, Kazi Kwa Vijana, Tokyo Embassy, Molasses, Yatta and Malili Land Acquisition etc; you will find an extremely smart but very unethical businessman. Kamlesh Pattni is the most well-known Corruption Czar so far but I suspect within this generation we will unearth another even more notorious Czar, who will make Pattnis’s achievements look like petty change.
What we have going for us now, as compared to during Kamlesh Pattni’s time; and the reason why I believe we are actually winning the war against corruption despite the challenges and judicial injunctions; is the dynamism of the 2010 Constitution.
Unlike the old constitution the 2010 Constitution introduced systems that have literally transformed how government conducts itself by overturning the power principal in Kenya. Today sovereign power belongs to the electorate not the elected, which is why unlike in the past public outcry is enough to get a Cabinet Secretary fired!
Even more fundamentally the 2010 Constitution expanded responsibility about who fights corruption (and increased the accountability structure of how a corruption investigation is conducted thus reducing the ease with which a suspect could compromise investigators). Kenyans created institutions which we then directly mandated to fight the vice and set them up in such a way that they would do their work independent of external interference, but inter-dependent on each other. This automatically ensured independence does not mean lack of accountability.
Article 79 established the Ethics and Anti-Corruption Commission (EACC) and charged it with ensuring compliance as well as enforcing provisions of Chapter Six on leadership and integrity. Article 249 then ensured the EACC was subject only to the Constitution and the law and that its mandate was not subject to the control of any other person or authority.
Article 157 established the Director of Public Prosecution and charged it with responsibility of prosecution of cases. The constitution also gave the DPP the power to initiate investigation of cases on their own volition by instructing the Inspector-General of the National Police Service to investigate cases the DPP believes should be investigated, without the DPP having to refer to any other authority to make this decision.
Article 160 created an independent Judiciary that is no longer a tool of the executive. Today judicial officers are answerable only to themselves in regard to decisions they make on cases brought before them. All they need to do is ensure such decisions are guided by the constitution and existing laws.
The 2010 constitution means Kenyans managed to create the hardware the country needs to run a successful anti-corruption fight, and win. However it was a process that took over twenty years. Along the way we would take two steps forward and then one step back. But we moved forward, steadily. Technological advances during the same period helped. Cell phone cameras have now become the single greatest tool in exposing corruption. Combined with a liberal media we now expose corruption a lot faster than at any time in our history.
Unfortunately we have also been victims of our own success. Today anyone can stop the EACC or DPP from investigating corruption allegations them, using the Judiciary. This means when the EACC or DPP goes up against a corruption czar, who will have both the money and motivation to protect themselves, our constitution gives them the opportunity to use the same institutions we have established to fight them, to protect themselves … at least for a while. In the meanwhile they work very hard to compromise enough people to stop the case, or do something to stop the process. Sometimes they succeed.
Two steps forward… one step back. But even then progress still gets made.
(Wambugu is a Director of Change Associates, a Political Affairs Consultancy)