I struggled for weeks after being asked by a man I hold in the highest esteem, Prof Yash Pal Ghai, to write this article on ‘Integrity and the Constitution’. Why? I’ll go into this a little later.
The Ndegwa Commission Report of 1971 effectively legalised conflict of interest in Kenya. It allowed public officials to engage in business while in office, in the days when the biggest player in business was government, so it meant civil servants and politicians were in business with themselves.
This opened the door to theft (corruption is the woollier term) on the part of politicians and civil servants in Kenya. As a result of thieving by public officials, the distinction between the public and private sectors was blurred, so much so that the fortunes held by leading ‘corporate families’ today emerged essentially out of the theft of public resources.
Ironically, this led to a modicum of stability as the thieves stole, especially during the Cold War when all that mattered to the West was which side the thieves were on.
The entire ‘fight against corruption’ in Kenya especially since the early 1990s was aimed partly at undoing this ‘original sin’ of conflict of interest where public accountability is concerned.
Integrity continued to reside in our key governance institutions, however, but in dark corners, in jail, exile and mostly in the ‘silence’ which Yvonne Adhiambo Owuor in ‘Dust’ – her ground breaking epic fictionalised epic on Kenya describes one of the country’s national languages. Honest men hid.
By the mid-1990s, however, the thieves of the 1970s and 1980s had turned themselves into a leviathan at the heart of all of Kenya’s governance institutions, essentially creating a criminal elite who, with their offspring, were above the law.
The creation of what became today’s Ethics and Anti Corruption Commission (EACC) was a donor-driven effort, with considerable initial domestic support, in the late 1990s.
This was followed by a tumultuous decade that saw the scale of corruption, and the impunity that attended it, increase exponentially.
Ironically, this was a global phenomenon that saw corruption increase around the world after countries had signed on to the United Nations Convention Against Corruption (UNCAC) in 2003.
The failure of anti-corruption agencies happened across the continent in an environment of low political will. This led, in Kenya’s case, to a determined effort to constitutionalise the anti-corruption authority and, similarly, in the 2010 constitution to constitutionalise integrity (into Chapter Six) mainly via a series of non-prosecutable provisions aimed at improving probity, honesty and good character in public life. It was the first time in our history that this was attempt, and an indication of the seriousness of the issue to the Kenyan people, derived from the work the Constitution of Kenya Review Commission (CKRC) in collecting the views of wananchi across the country.
Chapter Six on Integrity essentially tried to consolidate the rule of law in Kenya by providing what was a rule book vis-à-vis leadership and integrity.
Highly articulated and domesticated for our particular context it was vigorously opposed by the combined political elite in 2012. A Leadership and Integrity Bill meant to legislate the provisions of Chapter Six was drafted, versions mangled and debated before eventually being watered down to the point where, instead of the integrity bar being lowering, it was effectively removed.
The Bill had given us a sense of the possible but, in a country where, to be brutally frank the top leaders have always – almost without exception – been thieves, Chapter Six was the gravest threat to the status quo that had prevailed for decades that The Bill could not be allowed to pass in its original form.
Back to why this article was a challenge…
At the start of 2016, the subject lends itself more to a Kafkaesque drama rendered with cynical humour than to serious debate.
For the current regime came into office with the president and his deputy under indictment before the International Criminal Court for crimes against humanity.
A morass of corruption, extra-judicial killings, democratic reversals, polarising politics and the normalisation of greed and theft as the primary values of success has followed.
As such, a darkness emanates from this regime that exceeds even Daniel arap Moi’s dictatorship which for all its failings had a finger on the pulse of the nation it was raping and looting. That could be the end of this article right there.
Kenyans elected a regime whose DNA was disassembling the constitution and for whom integrity was merely a sound bite. Indeed, both constitutionalism and integrity, as values that imbue individuals in a society attempting to develop with an ethos that would allow maturing into an equitable, tolerant, compassionate, diverse and just community of peoples, are inimical to the current regime.
That said, the choices that many Kenyans made in the 2013 elections said more about the society we were and are becoming than they did about the candidates who offered themselves for public office.
The Jubilee regime’s most outstanding success has not been in the political realm – where it has orchestrated with determination and ruthlessness the steadiest stream of reversals vis-à-vis the democratic, and even more basic, freedoms and rights that Kenyans had struggled for decades to enjoy.
On the economic front, debt-driven hubris, combined with a total disregard for the quality of life of the majority of Kenyans who live in poverty, has deepened inequality, which has been politicised, ethnicised and now successfully militarised in entire chunks of the country.
However, it is on the social front that the Jubilee regime has been most successful as it set out to transform as many Kenyans as possible into thieves – to degrade our public mores to the point that criminality in the norm and integrity is an academic subject or exaggerated pretence to achieve short-term materialistic goals.
We have a regime where theft is celebrated; where drug dealers are elected; where the most corrupt Cabinet Secretaries are commended by the state; where officers with the least regard for the rights of Kenyans are promoted; where those who kill and get away with it are ‘glorified’ and, in some churches, sanctified.
Over the last couple of years, the Aga Khan University’s East Africa Institute has been conducting a thorough survey of attitudes of youth (between 18 and 35 years old) across the three countries of the East African region. They released the Kenyan block of results in Nairobi this week. The findings were instructive.
‘The good news’, EAI’s Dr Alex Awiti reported, was “that the majority of Kenyan youth identify themselves as ‘Kenyans first’ over tribe or faith.
They are positive and optimistic about the future, and believe that Kenya will be more prosperous with more employment opportunities for the youth”.
The study, however, also revealed what it described as a ‘staggering crisis of integrity’ among the youth. Indeed, 50 per cent of youth believe it does not matter how one makes money as long as they do not go to jail; 35 per cent would be willing either to give or take a bribe; 40 per cent strongly believe it is important to pay taxes; 73 per cent are afraid to stand up for what is right for fear of retribution; 40 per cent believe there will be more corruption; 47 per cent admire those who accumulate by hook or crook, (including hustling) and 30 per cent believe corruption is profitable.
Said the report: “A large reservoir of young and corruptible electorate could undermine competitive democracy and make political leadership a preserve of wealthy oligarchs and their financiers.” There we have it. Our grim trajectory in all its glory.
John Githongo is active in the anti-corruption field regionally and internationally.