The ancient Greek philosopher and historian Polybius (200-118 BC) attributed the social decay and destruction of the kingdom of Carthage to its political corruption and weak moral values whilst the growth and prosperity of the Roman Empire was traceable to its high discipline and political standards. Thus in Carthage the lax moral values ensured that “nothing which results in profit is regarded as disgraceful” whilst in the Roman Empire “unscrupulous gain from forbidden sources” was condemned and the death penalty was the punishment for bribery.
During the six year Jubilee era Kenya is fast becoming the modern-day Carthage. Like old Carthage Kenya is soft on corruption and nothing dramatizes this fact more than the irony of appointing a retired priest in the person of Archbishop Eliud Wabukala to head the Ethics and Anti-Corruption Commission. As it is with most white-collar crimes in Kenya the law imposes soft punishments on convicts of corruption offences.
Invariably, blue collar crimes are punished by long imprisonment including death in case of robbery. When it comes to corruption however the punishment is “a fine not exceeding one million shillings, or to imprisonment for a term not exceeding ten years, or to both”. In other words, in the unlikely event of conviction the corrupt offender has a statutory chance to escape jail by paying a fine which is virtually a right for a first offender. The provision for the ten years imprisonment is nothing but a red herring to pretend that Parliament takes corruption seriously.
The imprint point to note is that under the current legal framework apart from one’s personal morality there are no genuine or effective checks against involvement in corruption by any person with opportunity to do so. This is precisely why in the wake of shocking revelations about the audacity of stealing public funds for the construction of Arror and Kimwarer dams many desperate Kenyans including Rev. Timothy Njoya have called for introduction of death penalty to punish persons convicted of corruption. No doubt severe punishment might help to scare off some potential criminals but experience with crimes of robbery and murder in Kenya shows that the death sentence – which is never carried out anyway – does not scare many potential criminals. In other words the problem of corruption is deeper than most people realize and such superficial steps of imposing severer punishments may not produce miracles.
Moreover, the immediate effect of the death sentence might be a steep rise in bribes to corrupt the criminal justice system resulting in fewer convictions as opposed to reduction in commission of corruption offences. Equally notable cajoling the Chief Justice to demand more convictions by trial magistrates might help a bit so long as the renewed determination to fight graft is not perceived as a temporary fight to achieve political ends.
To his credit President Uhuru Kenyatta seems to be critically aware that uncontrolled corruption is bound to drown Kenya and lead to state failure unless drastic steps are taken immediately. Corruption is Kenya’s national cancer and we seem to be advancing towards the irreversible stage three. In November, 2015 Uhuru declared corruption a “national security threat” but precisely because nothing tangible came out of that declaration the conspiracy to procure expensive loans for Arror and Kimwarer dams, the brazen theft of public funds in the so-called marginalised county of Samburu and other schemes soon to be revealed continued unabated.
It is commonsense that to cure any disease you must first diagnose it properly. It saddens me to admit that for the most part corruption is part of the Kenyan DNA. Give your pastor half a chance and he will clean up your finances. As a student in the 1980s I used at most two pencils per term but today pupils are routinely required to deposit two dozens of pencils at school. As a lawyer you cannot send clerks to lands offices without giving money for their counterparts chai to “find” your file. Across the country you cannot drive out of a parking without a busybody levying a “watching fee” on you. In short petty and grand corruption have become a permanent feature of daily life in Kenya.
Back in 1972 the New York City Police Department formed the Knapp Commission to inquire into and report on corruption among the officers. The report indentified two types of officers who it labeled grass eaters and meat eaters. It described grass eaters as officers who occasionally engaged in illegal and unethical activities such as cash or gifts in exchange for non-enforcement of the law. On the other hand, meat eaters were described as officers who actively seek ways to make illegal money while on duty. Applying this analogy to Kenya meat eaters are the excellencies and honourables in charge of Kenya’s 48 governments, independent offices, MPs, judicial officers, parastatal chiefs and police chiefs. It is safe to assume that Kenya’s grass caters are everyone between the watchman and the MCA. For many years the activities of the meat eaters in Kenya have devastated its economy but the anti-corruption laws make no distinction between them and the grass eaters who engage in corruption to feed their families or pay medical bills.
If the ship of the Kenyan State drowns in the gathering tsunami of corruption the culprit will be the meat eaters whose greed the country can no longer afford. Strictly speaking corruption is not as much of a moral problem as it is an economic one. Former Chief Justice Willy Mutunga is right that Kenya is a bandit economy in which the bandits may be in control of more than half of the state’s machinery and its agencies. In fact corruption in its various manifestations is the largest industry of the African economy in Kenya. The refrain among the middle class in today’s Kenya is “don’t work hard, work smart” and invariably working smart means becoming a tenderpreneur or a broker in order to live off the State and other people’s money.
This point is too critical to deserve emphasis. Across the world nations that have changed the economic fortunes are those that have figured out how to mobilize their best citizens to produce more and more goods and services to generate personal and national wealth. Tragically in Kenya the smart workers are those who join politics in order to capture the state and entire counties and live off public funds with their kith and kin. The inevitable consequence of the most talented citizens abandoning genuine work to become sovereign parasites is the crisis of production Kenya is facing. This crisis manifests itself in three ways: unrealistic budgets, expensive foreign loans and unfair taxation of the few producers left in town.
Political power is the life blood of the captains of the bandit economy because this is what enables them to make laws to oppress wealth makers and to protect themselves upon stealing public funds. In her celebrated 1957 novel Atlas Shrugged Ayn Rand memorably described this scenario thus: “When you see that in order to produce, you need to obtain permission from men who produce nothing – when you see that money is flowing to those who deal, not in goods, but in favours – when you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you – when you see corruption being rewarded and honesty becoming a self-sacrifice – You may know that your society is doomed”.
Hoping that we now have a consensus that Kenya is staring at imminent state collapse courtesy of its sovereign meat eaters the question arises whether it is too late to do change this tragic course. My sincere view is that within the next two years that Uhuru can work effectively there is not much he can do to cure Kenya of the cancer of corruption but he can stop it from spreading further and spare himself the infamy of becoming the first President to drive Kenya into bankruptcy. There are ten practical interventions Uhuru can lead the country to achieve.
The first thing the President must do is to safeguard the credibility of the war against corruption which may entail its depoliticisation. There are three things that the President can do in this regard. First, the President should avoid appearing too cosy with governors and other persons generally considered by Kenyans as free felons. Secondly, the President must lead by example and ensure for example that he dispels concerns in the grapevine that the only reason why government has not abandoned the school laptops project is because the beneficiaries are persons close to him. Thirdly, the President must keep his vow that every one implicated in corruption will be prosecuted irrespective of their station in society.
The second major intervention is to curb Jubilee government’s appetite for foreign debts which is the primary cause for the scandals about Arror and Kimwarer dams. It is common knowledge that procurement of foreign debts is the most lucrative avenue for the lords of corruption in Kenya because as Treasury CS Henry Rotich is tacitly saying the government actually learns about such projects long after the contracts have been signed and kickbacks paid. On account of Jubilee’s expensive projects Kenya’s GDP is overstated in my view as it consists of overvalued public investments and outright junks. There should be a second rebasing of our GDP to lower it in order to cure the illusions about how much debt the corruption rats can procure for us.
The third intervention is related to the second one. There are hundreds of Engineering, Procurement, Construction plus Financing (EPC+F) projects that are in the pipeline and whose main objective is to rob the national treasury. As example, the notion that mega dams can be built on every little river and seasonal stream across Kenya’s largely arid landscape is a compelling pointer to corruption schemes. The President should cancel all dam construction projects including Arror and Kimwarer until independent audits confirm those small rivers and seasonal streams can support the massive dams and irrigation projects alleged by the projects promoters.
Fourthly, the President and Parliament should invest sufficient resources in agriculture, tourism, programmes to support small and medium enterprises including blue economy, manufacturing and youth entrepreneurship. As example the 2019/2020 budget proposals allocate a pittance to all these productive sectors of the economy and most of the discretional expenditures have been allocated to programmes that are historically proven to corruption. As part of this intervention the CDF and Ward funds should be scrapped because they are simply slush funds and colleges for training of future sovereign thieves.
Fifthly the President should lead Parliament and the judiciary to fix the law, order and administration of justice sector and particularly the criminal justice system which is the most lucrative sector of Kenya’s bandit economy. In fact as long as Uhuru does not acknowledge the justice system as an African growth industry he will keep getting frustrated why the courts are not getting him enough convictions to justify the fight against corruption. The problem we have is historical and systemic as dramatized by the fact that the common law owes its origins to the justice system set up by William I of Normandy upon conquering England in 1066AD. This justice system was the most profitable enterprise for the king and his noblemen. In short fixing the criminal justice system will entail abolition of a most profitable enterprise and corruption will certainly fight back here.
Sixthly, the legal framework for fighting corruption should be rationalised and toughened. The provision for ridiculously low fines in corruption cases take the sting from corruption convictions. It is equally scandalous for any state official charged with felonies and corruption to remain in office during trial. In my view there is nothing in the constitutional principle of presumption of innocence that justifies suspects of serious offences to remain in office. I believe all that is necessary is to conclude such trials within three to six months and pay the aggrieved compensation if the courts exonerate them.
The seventh intervention is related to the previous one. All state officials and people suspected to have stolen over 100 million shillings should be tried before the High Court both to speed up the trials and reduce risk of compromised justice since judges have higher stakes than magistrates to resist bribes from the accused. In fact since magistrates do not adjudicate civil cases above 50 million shillings it puzzles me why they should preside over trials involving billions of shillings. Moreover, since the man who kills the shopping centre mad man his village is relieved to bury and forget is tried for murder in the High Court, it is intriguing that Kamlesh Pattni and his successors stand trial in magistrates courts.
Eighthly, there is need to fix the legal framework for public procurement and payment of suppliers and service providers both at the national and county government levels. If Kenyans are serious about job creation and manufacturing networks of procurement cartels and “ifmis brokers” must be dismantled so that legitimate firms can do honest business with the public sector.
Ninthly, the main conduits of corruption are parastatals such Kenya Power, Kengen, Kenya Pipeline, Kenya Ports Authority, Kenya Airports Authority and Kenya Airways. Quite often these state enterprises have been underperforming or making losses because whereas Kenyans are the legal and nominal owners the beneficial owners of these public firms are corruption cartels and ruling party barons. To reduce corruption these state enterprises should be privatised and their governance models depoliticised.
Finally, Kenyans should pray to God to grant more presidential wisdom to Uhuru. We should pray for Uhuru to know what works and what does not. We should pray to God to give our president good company and to distinguish the people whose counsel he should seek and those he should reject. We should pray that he will get more people like Prof. George Magoha to his Cabinet. As the Kikuyu say we should pray for the President to know ĩrĩo na ĩteo (what to keep and what to throw away).
*The writer is a constitutional lawyer ([email protected]).