Though touted as an economic powerhouse in the East African Community, and contributing more than 40 percent of the region’s GDP, Kenya has become a hotbed of corruption, with the elite capturing the state. According to the Ethics and Anti-Corruption Commission’s (EACC’s) 2024 report, about Sh608 billion is lost to corruption every year. This humongous number is equivalent to 7.8 per cent of the country’s GDP. This reveals how corruption has become cancerous, crippling economic growth, eroding public trust and disrupting the delivery of vital public services.

There is a growing call for a vigorous international mechanism to combat corruption at the highest levels. A bold proposal now gaining traction is for creation of an International Anti-Corruption Court (IACCourt).

WHAT IS THE IACCOURT?
The idea is an international court to try cases of grand corruption, especially in jurisdictions where domestic remedies fail due to compromised justice systems or lack of resources. Grand corruption happens when individuals who are very powerful because of their influential government, political, or business positions, or because of their strong connections with such people, loot or misuse public funds. These monies would otherwise be used for roads, hospitals, schools, and so on — and this misuse is done with impunity.

Think of the IACCourt as being like the International Criminal Court, but, instead of handling crimes against humanity, its sole purpose would be to prosecute and try crimes such as bribery, embezzlement of public funds and money laundering. The proposal is in line with existing international frameworks, such as the UN Convention against Corruption (which Kenya was the first state to ratify), the African Union Convention on Preventing and Combating Corruption, the Malabo Protocol (which would add 14 offences to the jurisdiction of the African Court, including corruption and money laundering). The proposed IACCourt is envisioned as a last resort, only stepping in where national authorities are reluctant to prosecute, or the courts to convict for grand corruption — as we have seen in Kenya quite often.

STATE CAPTURE IN KENYA
“State capture” is no longer a fancy phrase used by scholars but reflects the current state of affairs. It describes a situation where politically connected or powerful individuals or cartels take charge of public bodies from procurement boards to legislative houses, manipulating laws and public funds for self-gain.

When President William Ruto was campaigning for the presidency, the Kenya Kwanza Coalition manifesto
promised to set up a quasi-judicial commission of inquiry into state capture within 30-days after he took office. It was to establish the magnitude of state capture and cronyism in Kenya and provide recommendations. However, the President has reneged on this promise, and instead, his administration has been rocked by one corruption scandal after another.

The rule of law dictates that proceeds of corruption be recovered and culprits held to account for economic sabotage. This would reduce the burden on Kenyans resulting from ever-increasing taxes and repeated government borrowing. Under the Constitution, the Auditor General is mandated to audit the accounts of national and county governments, public offices and other bodies that are allocated public money, within six months after the end of each financial year.

The National Assembly and Senate review the Auditor General’s findings, prepare reports and propose steps to be taken. However, Parliament has failed to develop an effective mechanism for follow up on implementation of audit recommendations. As the Star reported on July 8, “government agencies disregard audit recommendations with near impunity.” Corruption, embezzlement of public funds and state capture are an open secret.

The Auditor General’s findings are widely publicised. But few prosecutions and fewer convictions result, because the very individuals mentioned in the auditor’s reports and in those of the EACC, are involved in appointing officers in the whole criminal justice and oversight system. They can also dismiss them, or can influence those who do have these powers because of the votes they control or the money they contribute. The IACCourt would be the best impartial avenue to prosecute such cases free from political interference and fear of reprisals.

From the recent Gen Z protests on the Finance Bill 2024, and recent events, it is clear Kenyans are tired of corruption, state capture and impunity. They want a country where leaders will be held to account, and where embezzlement and stealing of public funds are treated with the seriousness they deserve, and lead to commensurate repercussions.

There are many questions that obviously arise, even if the idea is appealing.

SOME DETAILS
The IACCourt would not replace local courts, but would complement their efforts to bring to account the “untouchables” including sitting and past presidents, politicians and powerful businessmen who have
benefited from embezzling and stealing public funds. It would also be able to trace and recover stolen
assets stashed abroad and have them brought back to the respective countries for regular budget purposes.

It would have its own investigating and prosecuting arms. Ideally Kenya and many other countries, would formally adopt a treaty setting up the IACCourt. It would need a good number of states to be treaty members in order for the treaty to come into effect, and to raise funds from state contributions.

If Kenya was a party, institutions such as the EACC could be legally liable to share evidence, according to Kenya’s legal obligations under the treaty. The court would decide whether Kenya is unwilling or unable to prosecute a case and only intervene when domestic justice is blocked or compromised.

However, if the treaty excluded immunity from prosecution for serving heads of state, Kenya might decline to become a party — although the constitution does envisage that Kenya might become party to such a treaty (Article 143( 4 )). President Ruto has been criticised for signing the Malabo Protocol because it protects presidents, even from crimes for which they could be prosecuted under the International Criminal Court treaty.

This does not mean there could be no cases against Kenyans. The court would apply its own law, not Kenyan law. Obviously, it would be more difficult to gather evidence from a country that is not a party.
Local agencies such as the EACC or the Office of the Director of Public Prosecutions, would be the most obvious source of evidence, but it could also come from whistle-blowers or civil society.

With some serious corruption cases, there is an international element that makes it possible for a non-Kenyan body to gather sufficient evidence for conviction. Much grand corruption has international elements. Two cases, including Kenyans are examples: In the Chickengate scandal, a United Kingdom court found that a British company had paid millions of shillings as bribes to Kenyan Interim Independent Electoral Commission officials. The detective work had been done by the British Serious Fraud Office. The
Kenyans were never prosecuted here.

The island of Jersey courts sought extradition of Chris Okemo, former Kenya Power CEO, and Samuel Gichuru, former Finance Minister, over multimillion-dollar corruption schemes and money laundering offences. The charges related to Jersey law, and the court could not try them under Kenyan law. Extradition never took place — and would remain a problem for the IACCourt.

The author is a Legal Research and Litigation Counsel at Katiba Institute.

This article was first published by the Star Newspaper https://www.the-star.co.ke/news/2025-07-13-odanga-case-for-global-court-to-fight-graft