There are two Latin phrases in law that distinguish between what is wrong because it is, and what is wrong because the law says it is. Mala in se means an act is inherently wrong e.g., rape or murder. Mala prohibita, on the other hand, means that an act is wrong because a group, say, the state, has prohibited it despite it not being inherently ‘evil’ such as photography in a prohibited area.
It is easy for the society to be outraged by acts that are mala in se. That is why a mob will quickly form and lynch someone for snatching a bag. The mob’s action is often impulsive and the punishment is swift. It is consequently easy to organise a society against many of the crimes that relate to acts that ‘everyone’ considers wrong and evil. Thus, it is possible to have ‘organised resentment’. Surprisingly though, this does not appear to be the case for many white-collar or economic crimes, including corruption and fraud.
Chapter Six of the Constitution seeks to establish integrity in the leadership of the country by setting minimum standards and expectations. Various Acts of Parliament outlaw offences such as bribery and corruption, money laundering and tax evasion. The Mwongozo Code, MKenya Daima Code of Conduct and many corporate policies emphasise integrity and declare zero tolerance to fraud. Despite these laws and policies, corruption and fraud in both public and private sectors seem to continue unabated. Of more concern is the fact that a majority of Kenyans do not seem sufficiently outraged by reported corruption or fraud.
I say this because our decisions about who we vote for, who is appointed to what position, whose money we accept or what company we choose to work for or do business with are seldom informed by reported integrity concerns relating to such individuals or businesses. Is it a case of us as a society considering corruption and fraud as only mala prohibita? Acts that are only bad because there is a law somewhere that says so but which we otherwise consider as not repulsive or damaging? As acts that are okay so long as you don’t get caught? Acts we can excuse so long as one can avoid conviction by a court? As victimless crimes?
Given our attitude towards economic crimes, the answer to some of the above questions must be yes. At least to an extent. As such, it is important to ask why it is the case that we perceive corruption, fraud and other economic crimes so leniently. One of the reasons is that economic crime is not easy to understand. It is very easy to understand what chicken theft is and therefore get angry with the chicken thief. On the other hand, there are only a handful of Kenyans who understand what the Goldenberg or Anglo-Leasing scandals entailed.
Despite the commissions of inquiry, court cases and numerous investigations, very few Kenyans know who did what in any of the major scandals, how what they did was wrong and what the consequences were. That it takes years for such cases to be successfully prosecuted does not help matters. As such, the average citizen wouldn’t know why they should be outraged. A second, albeit related point, is that despite the pervasiveness of economic crime, few people appreciate the extent of the harm such crimes cause, especially when each crime or institution is looked at independently. This ignorance is both intentional and unintended. This is partly the case because many perpetrators, beneficiaries and in some cases even the victims of economic crime are people in authority, and it is not in their interest for the full extent of the problem to be established.
The result is that there is very little investment in investigating fraud and researching its impacts and costs. Because its impacts are not well researched, they are underreported and the true impact of fraud and corruption is not immediately apparent. To effectively fight corruption, we need to be sufficiently outraged by it to be able to create organised resentment to not only punish it, but more importantly, make it harder for those with the opportunity to commit fraud or corruption to rationalise and justify it.
Mr Kamau is an Associate Director, of Forensics Advisory services, PwC East Africa region