Why graft is a mere litmus test of who is a worse thief in Kenya

Lawyer Kibe Mungai

In the early 1990s – the period in which the Goldenberg scandal was incubated and executed – then President Moi assured the world that his “government has not condoned and will not condone laxity and corruption”.

He reiterated the commitment of his government to fight corruption at all levels, warning Kenyans to “stop the habit of inducing public officials with money and other items for services that should be rendered free of charge”. In the end, Moi’s promises amounted to nothing and corruption was the major reason Kanu lost power in December 2002.

At his presidential inauguration in late December, 2002 Mwai Kibaki made a solemn pledge that “corruption will now cease to be a way of life in Kenya and I call upon those members of my government and public officers accustomed to corrupt practices to know and clearly understand that there will be no sacred cow under my government”.

Sooner than later, the Anglo-Leasing scandal emerged and the anti-corruption war was severely damaged. It was during this period that the then Justice and Constitutional Affairs minister Kiraitu Murungi memorably declared that jailing the corrupt is not necessarily the most effective way of fighting corruption.

No wonder when the Grand Coalition Government of President Kibaki and Prime Minister Raila Odinga spearheaded the making and promulgation of the 2010 Constitution, it denied the anti-corruption agenda the pride of place in it. Contrary to the popular views, the 2010 Constitution does not name or establish the Ethics and Anti-Corruption Commission (EACC) the same way it names and establishes the Parliamentary Service Commission, National Land Commission, National Police Service Commission and others.

All that Article 79 does is to empower Parliament to enact legislation to establish an independent ethics and anti-corruption commission for purpose of ensuring compliance with and enforcement of the provisions of the Constitution, Chapter Six which relates to leadership and integrity and not corruption. In other words, the Constitution pretends that the Chapter on leadership and integrity confers a mandate to fight corruption in order to avoid creation of a genuinely empowered anti-corruption mechanism.

Therefore had it not been for the imagination and craftsmanship of the constitutional-making technical committee, there would be no mention of the word anti-corruption commission in the 2010 Constitution. In the premises, whenever we celebrate the Grand Coalition government for promulgating the 2010 Constitution, we must never forget to lament their determination to demobilise and extirpate the anti-corruption agenda from the Constitution. It is not by accident therefore that whilst the Kenyan Constitution does not mention corruption as one of the grounds for impeachment of a president or governor, the US Constitution is categorical that its President may be impeached for and conviction of treason, bribery or other high crimes and misdemeanours.

Pursuant to Article 79 of the Constitution, the Grand Coalition Parliament enacted the Ethics and Anti-Corruption Commission Act, 2011 which establishes a commission without effective administrative and technical capacity to fight corruption let alone legal powers to prosecute the corrupt. The principal function of this commission is to preserve and hand over investigation reports to the DPP. The leadership of the EACC can be drawn from any sector in Kenya and not necessarily professionals in law enforcement and administration of law and justice. This is precisely whyretired Anglican Archbishop Eliud Wabukala is the chairman of EACC. The irony is difficult to lose. Under the current legal framework, corruption is a soft crime in Kenya and so it can as well be led by a priest!

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 10 years imprisonment is nothing but a red herring to pretend that Parliament takes corruption seriously. Thus under the current legal framework it would take a real buffoon of a suspect to be imprisoned for corruption.

Accordingly, after the Grand Coalition government decriminalised corruption for all intents and purposes, the anti-corruption agenda is nothing but a scare crow for defaming each other. It is not a true crime but a mere litmus test of who is a worse thief. All those professional chairmen who thought corruption is a dragon that could be slayed have since learnt that anti-corruption must remain a permanent war of words to confuse wananchi in order for viongozi to win or lose elections. By design, corruption is not supposed to be a crime that could lead to imprisonment of viongozi. It is true, sad as it is.