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Arrest and charge officials who sneer at asset declaration laws

By Makau Mutua | February 10th 2019 at 01:37:21 GMT +0300

Corruption thrives in Kenya because public servants don’t disclose – at the pain of perjury – all their assets. The law that requires the declaration of assets is fatally flawed. 

The Public Ethics Officers Act (POEA) is a toothless, useless piece of legislation. So is the Ethics and Anti-Corruption Commission Act, the Anti-Corruption and Anti-Corruption Crimes Act, the Bribery Act, and the Leadership and Integrity Act. 

These voluminous laws, and anti-corruption institutions like the Ethics and Anti-Corruption Commission help to cover up – not expose – looters of the public purse. They make a mockery of Chapter Six of the 2010 Constitution on Leadership and Integrity. They hoodwink the public that the State can combat corruption. It’s a cruel hoax.  

Laws only do that which the elite wants them to do. That’s because, as Charles Dickens famously wrote in Oliver Twist, “the law is an ass.” I’ll do him one better – the law is an idiot. It only does as the elite directs it. The law is a servant of politics. If the politics are rotten, as they are in Kenya – because the elite is rotten – then the law is rotten. 

Politics is an antecedent of law, not the other way round. That’s why even an excellent law passed by the Mafioso will never be implemented. It’s true that the law can be a “gentle civilizer of nations.” But the elites of those nations must themselves submit to civilisation.  

Two African states passed excellent constitutions, only to cannibalise them. The first was the 1996 South African constitution. There’s no better national charter than the Mandela-inspired national lodestar. The document went as far as law could to extract deeply-seated societal demons. Even in a liberal constitution, it included the solid protection of fundamental social, economic, and cultural rights. It was forged in the inferno of the struggle against apartheid, and so it sought to dismantle – root and branch – the evils of the system.  

Hands of the elite

Instead, the men and women of the new South Africa privatised apartheid and entrenched corruption. Jacob Zuma, the disgraced former leader, was Exhibit A. That’s why the law is putty in the hands of the elite.  

But take another example. The justices of the Supreme Court of the United States are required by law to annually publicly declare their assets. They do so on the pain of perjury and prosecution because it’s a serious felony to lie on a federal form. Right here right now, you can google what each member of the SCOTUS owns, and how he or she acquired those assets. There’s nothing more transparent than sunlight. 

Even a speaking engagement at a university – including any paid expenses such as travel – must be reported. This is the standard to which all public servants must be held. Otherwise the law requiring the reporting of assets is hogwash. This doesn’t require a dozen pieces of legislation. 

Kenyans know that in September 2016, I was interviewed – unsuccessfully – for the office of the Chief Justice of Kenya. I was shocked that we weren’t required as candidates for the highest judicial office in the land to publicly declare our assets. 

I know that former Chief Justice Willy Mutunga tried unsuccessfully to push the Judicial Service Commission to require sitting judicial officers and candidates for judicial office to publicly declare their assets and be subjected to lifestyle audits. I am told there was stiff opposition from within the highest ranks of the Judiciary to declare one’s assets and conduct lifestyle audits. Why did judges and other judicial offers oppose him? What were they trying to hide? Shall we ever know? 

Jubilee’s Uhuru Kenyatta – backed by NASA’s Raila Odinga – has staked his legacy on wiping out corruption and the official cartels that fuel them. Let me state as clearly as the rising sun – Mr Kenyatta’s war on corruption will come to naught unless he changes the law and requires – absolutely requires – that public servants declare all their assets every year and submit to lifestyle audits on the pain of perjury. 

Those who can’t explain their wealth must give it up. Those who are found to have acquired their wealth corruptly must be jailed and dispossessed of the loot. This campaign must be carried out without pity. I have been a critic of Mr Kenyatta, but on this I fully back him. 

The corrupt elite and their acolytes must spare us their bloviation every time one of their corrupt brethren is netted. Nor should the Law Society of Kenya be in the business of impeding the war against corruption. When a lawyer or judge is arrested for corruption, the LSK and certain lawyers threaten Armageddon. How is this different from tribalists who protect their corrupt kith and kin? Why can’t lawyers, like ordinary Wanjiku, be arrested on a Friday? Please spare me the drama. 

-The writer is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua


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