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Where is the weak link in Kenya’s fight against corruption?

COUNTIES
By Nzau Musau | November 13th 2016
Aerial View of Integrity Centre, KACC, between Valley Road and Milimani Road in Nairobi. 24/07/14 [Photo/Jonah Onyango/Standard].

For all the thousands — probably millions — of Kenyans who have offered bribes since January, only two persons have paid for it this year.

In statistics that sum up the hypocrisy of Kenya’s fight against corruption, only Charles Maina, an official of Isacco Construction Company, and Joseph Wanjau Kunyara, a private motorist, have paid for the vice since January.

For all the corruption in the country, only 14 people have either paid for receiving bribes or corruptly acquiring public property this year.

According to the statistics released by Ethics and Anti-Corruption Commission (EACC), Maina offered “a benefit” of Sh1,000 and was convicted on February 29 with a fine of Sh50,000. Kunyara on the other hand “corruptly offered a benefit” of Sh2,000 and was convicted on January 21 and fined Sh100,000 or upon default serve three months in prison.

Effectively, the two carry the burden of a nation seething in graft under a moribund anti-graft body, a conniving political class, a hypocritical society, and failed institutions in justice, law and order.

For the umpteenth time, the country is recruiting a new chairperson at EACC, a man or woman who must overturn these grim statistics. As former Anglican Church of Kenya (ACK) Archbishop Eliud Wabukala, former Permanent Secretary Philemon Mwaisaka, William Kirwa, Peter Ondieki, Rose Osoro and Erastus Iguna are interviewed by the Public Service Commission (PSC) from Thursday, the nation must begin to ask itself the hard questions: Are we living a lie in so far as anti-corruption war is concerned? Does the burden of cleaning our act rest entirely on EACC? Is there political will to root out graft from Kenya?

At the national level, one monumental scandal involving billions is giving way to another of similar magnitude in quick succession. At the local level, individuals far removed from the glare of public media are lost in an orgy of corruption and are too guilty to point a finger.

Our national fury against corruption is fleeting, hypocritical and almost meaningless. The Kenyan people have moved on from the Tokyo Embassy scam, “Hustlers jet” scam, Anglo Leasing repayment, BAT scandal, “Chicken-gate” and Lamu irregular land. These are now tales.

“One of the greatest frustrations we face at the EACC is that of having to account ourselves to a highly hypocritical society where no one is willing to take responsibility at their level. The fight is only as good as it fights others, not you,” EACC deputy CEO Michael Mubea says. Mubea, the man in charge of investigations at Integrity Centre, is himself a controversial figure in the entire anti-graft matrix depending on who you talk to. To Gretta Fenner, the director of International Centre for Asset Recovery, Mubea alongside CEO Halakhe Wago, are leading a quiet revolution at EACC.

“Since 2013 they have set about to rebuild the agency, and despite highly publicised trouble at the top, they have quietly been probing away and building the organisation’s capacities as both a proactive and reactive investigative agency,” she says.

However, according to Ndung’u Wainaina of International Centre for Policy and Conflict, Mubea and “the whole caboodle at EACC” are the biggest jokes in our land: “He is least qualified, a puppet and an obstructionist. EACC itself is completely compromised structurally, operationally and financially.”

Back and forth

Mubea is not moved and is instead rooting for a more-structured dialogue on where we went wrong as a country: “It’s not so much about us at EACC. We are only 450 people serving 40 million Kenyans under very difficult circumstances. We are not popular because our job is not meant to be popular.”

Between this back and forth, focus tends to get lost to the benefit of the corrupt. To demonstrate the hypocrisy of actors, Mubea singles out the experience EACC had when it undertook a review of parliamentary systems last year: “They almost impeached the speaker. That is what happens everyday. Yesterday you saw church leaders reading riot act to the president on corruption yet politicians are telling us they are stressed because they are under pressure to do fundraisers for the same churches.”

The country’s record in terms of high-level corruption convictions is as dubious as its history of somersaulting on its resolve against the vice. For the first time since it was founded, EACC bagged a conviction of a former MP over corruption last month.

“Up and until Peris Simam on October 7, there has never been an instance of an MP being held accountable in such a way. Two weeks later, on October 21, a former accountant from the Ministry of Education, Jane Ngugi, was sentenced to five years imprisonment for falsifying documents to cover up the theft of over Sh8 million in fictional expenses for a workshop,” Fenner says.

For Dr Francis Owakah of University of Nairobi’s Department of Philosophy, anti-graft war is literally a game of musical chairs in the Kenyan context. He says as long as the political class is benefiting and playing poker with the graft card, it will remain a mirage.

“It should not matter that corruption is widespread as long as the institutions charged with responsibility of taming graft are doing their work. When convictions start rolling people, will be deterred from the vice,” Owakah says.

He says Parliament has abdicated its oversight authority and gone to bed with the executive. Jubilee is accusing the CORD leader Raila Odinga of paying civil servants for leaks on corruption “as though there can ever be an official leak on corruption.” “The fact that we are now talking about leakage shows how deep we are in this mess. Does it matter how Raila or anybody gets to know about corruption in government?” Owakah says.

He says Kenya is facing a unique problem where institutions like EACC and National Cohesion and Integration Commission (NCIC) have under-performed leading to serious contradictions or where others like the Ombudsman have over-performed “but that performance is not helping anyone.”

“One other problem we are facing is that in Kenya, the perception of corruption is much higher than the reality of it largely because of immense freedoms of speech and expression. Since 2004, corruption reportage to EACC has doubled from 4,006 to 7,929 reports,” Mubea explains.

According to Bishop John Nduati, the clergy needs to do more to rein in their flock. He wonders what always goes wrong after people leave their churches, temples and mosques. “It is time for us as religious leadership to look out for a constant in our flock. We cannot have them acting differently at different times and in different places,” he says.

One-stop shop

For activist and Democratic Congress Party chairman Tom Mboya, Kenya is not beyond redemption on corruption. Other countries have been where we are or worse but through sheer determination and unity of purpose, managed to stem the tide of corruption.

“One such country is Georgia. When the Rose Revolution occurred in 2003, corruption, crime and dysfunctional public services plagued Georgia. Following a period of systematic reforms, by 2010 Transparency International ranked Georgia as among the most prolific corruption-fighting nations in the world,” Mboya said.

They also adopted other countries’ practices with enthusiasm, such as Italian anti-Mafia legislation and German police training techniques, he says.

South African is the other example Mboya gives. He says in 2001, SA formed a “one-stop structure” for prosecuting organised crime and corruption. It comprised of National Prosecuting Services (NPS), the Directorate of Special Operations (DSO), the Witness-Protection Programme, the Asset Forfeiture Unit (AFU) and specialised units such as the Sexual Offences and Community Affairs Unit and the Specialised Commercial Crime Unit.

“Owing much of its success to this unique ‘one-stop shop’ structure, by February 2004, the DSO had completed 653 cases, comprising 273 investigations and 380 prosecutions. Of the 380 prosecutions, 349 resulted in convictions, representing an average conviction rate of 93.1 percent,” Mboya says.

As impressive as the score for their unit was, it was disbanded as soon as political will waned and as soon as success begun consuming them. Mboya says Kenya must realise that the only way to deal with corruption conclusively is to ensure prompt, thorough investigation and timely prosecutions.

“Given the high prevalence of corruption in Kenya, we cannot leave the responsibility of addressing graft to duty-bearers alone,” he adds.

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