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Katiba Institute Article

The Trial of Integrity in Kenya

THE TRIAL OF INTEGRITY IN KENYA

THE TRIAL OF INTEGRITY IN KENYA
By PLO LUMUMBA

Introduction
The Constitution of Kenya 2010 has been described as progressive. Commentators have identified the provisions on national values and leadership as its two important pillars. This is logical because poor governance was at the very heart of the quest for a new constitutional dispensation. The use of public office for private benefit by the political class had not only caught the eyes of commentators within Kenya, but as early as the 1970s prompted the then Tanzanian President Mwalimu Julius Nyerere to describe Kenya as a ‘man eat man society’.
In 2001 when the Constitution of Kenya Review Commission (CKRC) embarked on the task of collecting views on various aspects of the Constitution, a large number of Kenyans cited corruption and the absence of clear national values and principles of governance as the undoing of the country.

The quality of political leadership was also identified as a source of the country’s problems and it is for that reason that Chapter Six is dedicated to ‘Leadership and Integrity’.

The Law and Institutions
Internationally and regionally, Kenya is a signatory to the United Nations Convention Against Corruption (UNCAC) and the African Union Convention on Preventing and Combating Corruption (AUCPAC).

At the national level, even prior to the enactment of the Kenyan Constitution 2010, a number of laws had been enacted to deal with integrity issues; these include the Public Officer Ethics Act of 2009, the Anti-Corruption and Economic Crimes Act of 2003 and the Proceeds of Crime and Anti-Money Laundering Act of 2009.

After promulgation of the Constitution 2010, older laws were amended and new laws enacted in order to ensure compliance with the Constitution; these include the Leadership and Integrity Act of 2012, the Public Finance Management Act of 2012 and the Ethics and Anti-Corruption Commission Act of 2011.

If the presence of institutions and the laws were to constitute the ‘magic solution’, Kenya would be one of the least corrupt countries in the world, but we know better because the gap between law and practice is wide and continues to widen.

The Current Situation
Today, in the name of allegiance to constitutional requirements, integrity is often mentioned and the country has seen senior Police Officers, Cabinet Secretaries and Judges being vetted and subjected to Parliamentary scrutiny. One would assume that these processes should solve the problems of integrity and herald the emergence of a Kenyan ‘ethos’; unfortunately, available evidence suggests that, despite numerous efforts made and numerous legislations enacted, Kenya remains what Mwalimu Nyerere described it as-‘a man eat man society’.

Kenyans still elect and appoint individuals of questionable character into public office and corruption appears to be growing a pace. Corruption is no longer confined to our borders. Stories continue to filter through that some of our institutions such as Kenya National Examination Council (KNEC) and Independent Electoral and Boundaries Commission (IEBC) may have been involved in activities that call into question the integrity of our national examination and electoral system respectively. These latter day revelations are emerging even as the ghosts of Goldenberg and Anglo-leasing continue to haunt us.

Post 2010 Constitution, the Auditor General is on record as lamenting that numerous revelations in his Annual Reports are at best treated with contempt. Devolution, whose potential for unlocking the country’s opportunities cannot be faulted, is already being abused through wastage and corruption by some Governors and Members of County Assemblies (MCAs). Makueni County for instance has seen its Governor being placed under siege for standing firm against corruption. The public procurement system, despite its elaborate requirements, has only succeeded in allowing ‘theft in accordance with the law’.

The current situation begs the question as to whether the fundamentals of leadership and integrity have been internalized by leaders and wananchi alike.

In the year 2010, in the context of Vision 2030, the National Economic Council in the Office of the President under the then President Mwai Kibaki, assembled a Committee of Experts (CoE) to evaluate the national value system. They did their work and some of its members claim that it is out of their work that we have Article 10 of the Constitution 2010. Regardless of whether their claim is true or not, the defining question is, ‘why is it that despite the presence of numerous laws and constitutional provisions, Kenya stands out as a country that is rudderless on issues of integrity?’

The National Problem
Today, Kenya is under threat from negative ethnicity and corruption. Negative ethnicity informs and defines the conduct of politics and business in Kenya and operates under one unwritten rule, ‘everybody is guilty except those from my community’. This attitude has created a culture of impunity which makes it difficult for institutions to fulfill their mandates because of political interference or intimidation.
I remember when I served as the Director of the Kenya Anti-Corruption Commission, one of the individuals who hatched the plot to remove me from office through amendment of the law told me to my face, ‘We appointed you not to fight corruption but to appear to fight it. But what you have been doing with your group is to destroy our political careers and tarnish our names. We will not let you do that. We will either remove you from office or kill you’. Well, they did not kill me but they used the law to remove me and four of my colleagues from office. The irony is that at the same time I was being removed from office, anti-corruption crusaders such as Anna Hazare in India and Monica Macovei in Romania were being protected by the public as warriors for truth and justice, but in Kenya the public was unmoved and untouched.
The second problem in Kenya is corruption. Corruption is alive and well and its perpetrators have become bolder over the years. Their footprints are seen in the public and private sector which they bestride like the fabled colossus. Occasionally, a few of their number may be arrested and charged in court with much fanfare but ultimately they will never be convicted.

The Way Forward
Sorrows and lamentations have defined our approach whenever we are confronted with issues of integrity because there is a sense of helplessness. But the question is, ‘what is the value of a Constitution if we cannot live up to its dictates?’

Our Constitution sets out our national values and every time an appointment is made by the President, the individuals concerned are taken through a process of vetting; however, beyond the drama and circus the culture of impunity is deeply rooted.

Parliamentary Committees and Commissions of Inquiry also occasionally expose rot but nobody is ever punished because the ‘crimes’ are treated as ‘victimless’.

If Kenya is to realize her potential, the political leadership must be resolute. Individuals whose conduct offends the Constitution and other laws should not hold public office and must be punished in accordance with the law.

The largely apathetic Kenyan population must also stir from its slumber and embrace a culture of zero tolerance for unethical conduct and criminality because in the end the ‘dry’ written constitution will not improve the lot of Kenyans. A ‘dry’ constitution is given life and meaning by the politicians who interpret and operate it and by the vigilance of the populace.

The author is currently the Director and Chief Executive Officer of the Kenya School of Law. He is a former Secretary of the Constitution of Kenya Review Commission and former Director of the defunct Kenya Anti-Corruption Commission, (KACC).

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