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Anti-corruption agenda must go beyond putting everyone in jail

NATIONAL
By Dennis Kabaara | November 13th 2021

President Uhuru Kenyatta chats with his Deputy William Ruto during the National Anti-Corruption Conference at Bomas of Kenya, Nairobi. [Jonah Mwangi, DPPS]

In December 2002, former President Mwai Kibaki proclaimed a “zero tolerance to corruption” agenda. The National Rainbow Coalition (Narc) calculation was simple. By its internal workings, Sh68 billion would be saved and diverted towards proper government expenditure.

Then, in true confirmation that ‘karma’ exists, the self-same Sh68 billion Anglo-Leasing political misadventure happened. The anti-corruption agenda was gone; dead and buried. “It was us who did it”, the quiet high-level advisories went. Michela Wrong captures the vivid details in the brilliant book It’s Our Turn To Eat

But corruption is not a 21st-century discovery. Joe Khamisi’s literary dynamite Looters and Grabbers is an even more painful read from past to present. It offers a clear anecdotal explanation why Kenya’s high-potential investment climate, both local and foreign, is really an undignified pathway of shortcuts.

Part of this is explained by economic mis-design; a deliberate stance that equates ‘big corporates’ with the concept of the private sector. Hence a ‘pro-business official stance that is not ‘pro markets. The real question, of course, is how to transform Kenya from an administrative (officialdom) to a political (people-led) State. The former relies on official corruption; the latter fights corruption by seeking policy answers.

Transparency International, a body with initial roots in Kenya, once defined corruption as the misuse of public office for private gain. Their modern definition is eminently superior: the abuse of entrusted power for private gain. Within this is a moral construct about trust before the legal criminality that follows. There is a cost-benefit arithmetic formula to this illegal criminality. If the probability and cost of sanctions is lower than that of discovery, prosecution and goal, corruption always wins.

The Association of Certified Fraud Examiners tries to tease out this definition of bad behaviour by ‘trifecting’ the act into three: conflict of interest, bribery and economic extortion.

Scholars have simplified this into petty corruption, grand corruption and looting. Or political versus economic corruption. One particular treatise, which compares the DRC, Philippines and South Korea, even offers an interesting categorisation; looters, rent-scrappers and dividend collectors, respectively.

In the Kenyan context, the words of former Chief Justice Willy Mutunga are instructive. Corruption has its own Vision 2030. It is a fully functioning criminal enterprise with working organisational structures, systems and work plans. It is located in the top-level bandit economy, but swims down to the kadogo economy, too. Our middle-class bubble is a high-maintenance proletariat designed to sit and watch.

Uhuru’s legacy on fighting corruption

There is a view that the 2022 election needs to speak to the issue of graft as a fix for the economy. Unfortunately, the data underpinning current presidential candidate statements seems uninformed, while the detail seems ‘mwizi mwizi’ careless.

For one, it gets governors off the hook for poor spending. Second, it treats corruption as some sort of wild animal that must be slaughtered next week. But because the country seems only interested in the presidential election, the baseline must be President Uhuru Kenyatta’s record.

There is plenty of technocratic delivery to report–asset recoveries via multi-agency teams, private sector anti-bribery codes, legal change, and digital this and that–but the wider public impression is corruption is worse, not better.

Much of this is to do with the fact that the president did not get the public service to actually work. Anglo-Leasing notwithstanding, President Kibaki’s genius was in getting public servants back to work after the serial entropy that ultimately characterised his predecessor’s rule and reign. If the workers are busy, they don’t have time to think about stealing things.

The second trouble with President Kenyatta’s war on corruption is intent. A twin narrative now exists. First, he has pulled the Judiciary into an unnecessary blame game when all logic suggests that incompetent prosecution-led criminal investigations are at the heart of this justice dilemma. It does not help that the prosecutor (DPP) and investigator (DCI) appear to be at unfortunate loggerheads.

Second, the anti-graft war looks like it was weaponised with a particular target in mind. In a country where people love the underdog, this, while possibly justified, has not just raised the political stakes, but fundamentally changed them. And there are still no results to show for all of the arrests we observe.

Kemsa is a prime example of directives ignored. Public procurement transparency is a bigger nadir.

The State capture problem

The signature moment of anti-corruption intent for President Kenyatta’s Jubilee administration was the anti-corruption accord he signed with US President Barack Obama. It was preceded by a late 2015 statement that spoke to national values and ethics, rule of law, public participation and value for money.

The accord itself spoke to a government digitalisation agenda to address terrorism financing, money laundering and anti-corruption issues. It was not about computerising public records, documents and papers, but changing the way public service actually worked.

The trouble, however, was not so much about how government worked, but who the government was. In a moment of pure serendipity, the Africa Center for Open Governance sought to better define Kenya’s corruption problem, and the struggle with fighting it.

Acknowledging that there was plenty of motion with little movement while wondering about Kenya’s pathological (as in post-mortem) perspective on corruption, the finding that the Kenyan State is captured was absolutely frightening. In other words, the message was stop following the cattle rustlers and look at the plantation owners!

The Jacob Zuma trial in South Africa has pointed us towards what State capture means. If policy (the means by which politics is supposed to solve the problems of the ordinary people) is privately captured, then it does not matter what the budget reads. Simply, why steal the budget when you own the policy?

Case in point. Will Kenyans ever get a statement on the Pandora Papers from our President? Or must we put this down to a State capture dilemma where explaining anything means revealing everything?

The 2022 agenda

It comes as no surprise that the 2022 electoral turf speaks to corruption in woolly terms, or does not speak about it at all. Between stealing budget and stealing policy, we have our presidential candidates in what looks like a choiceless election. There are no words about corruption’s ignored but most deleterious part; the petty corruption (police, government offices) that everyday Kenyans are born to suffer.

2022 will not fix policy capture without a popular revolution. But it could fix ‘budgeted corruption’ and ‘super-tenderpreneurship’. And it might do more to fix the ‘little corruption’ of daily bribes that has macro and micro-economic impacts. We will examine further details in the next column.

The starting point, as this column insists, is to determine our ‘what’ then find the ‘who’ candidate. There is a credible anti-corruption agenda beyond ‘jailing everybody’ or ‘making legal systems work’. Maybe the ‘zero-tolerance’ needs unpacking before we go to the notion of amnesties like the Kroll Report.

The writer is a management consultant and institutional reform, specialist

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