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Integrity Scorecard

By Kepher Otieno*

The incessant battle to end corruption in Kenya is far from over. Every day, media headlines report stories about graft. Kenyans point fingers at the Grand Coalition government, which, they say, tolerates vice. The war against corruption seems to be slipping out of the hands of those who are fighting it.

The main anti-corruption crusaders see no light at the end of the tunnel. "The leaders have simply failed. They can't stop stealing themselves," said Mwalimu Mati, who heads the Mars Group, an anti-graft watchdog group in Kenya.

Many Kenyans now fear that their country may go into economic receivership. They say that the country's executive branch has been making unilateral decisions in violation of Kenyan laws, even though it is this very branch that claims to be fighting fraud.

After a disputed 2007 presidential election, which saw an outbreak of riots and bloodshed, President Mwai Kibaki and Prime Minister Raila Odinga formed a unity government to end the worst civil unrest since Kenya achieved independence in 1963. Even though it was able to end the violence, which killed at least 1,300 people and displaced 300,000 others, the coalition government has done little since then to bring those accused of corruption to justice. The government has failed to push forward with political reforms or ease worsening economic hardships suffered by Kenya's citizens, analysts say.

One recent example of a controversial action was the reappointment by President Kibaki of anti-corruption director Justice Aaron Ringera to be director of the Kenya Anti-Corruption Commission (KACC). In addition, one of Ringera's assistants, Fatuma Sichale, was to serve as assistant director of Legal Services while another, Smokin Wanjala, was to serve as head of Preventive Services at the Integrity House.

The President's pronouncement of Ringera's reappointment sparked a great public outcry. Eventually, Ringera, Sichale and Wanjala resigned after public and parliamentary pressure.

Who will follow the law if the leaders don't?

Ordinary Kenyans now wonder what viable options or solutions remain to salvage the country from past economic turmoil if their own leaders don't follow the laws.

Many of them feel that the executive branch is responsible for ensuring the proper management of the country while following the country's laws. Yet, the leaders actually do just the opposite, says Kaleb Onyango, a Kenyan trader.

He is not the only one who feels this way. Ayub Hassan, a taxi operator in Nairobi, echoed similar concerns: "Who will follow the law if the executive cannot uphold it?"

What makes ordinary Kenyans feel this way?

For example, the Anti-Corruption and Economic Crimes Act of 2003 clearly specified a string of procedures for appointing the head of the country's anti-corruption commission and its civil servants. The act gives an advisory board, not the president, the power to recommend a commission director, said Aggrey Mwamu, vice chairman of the Law Society of Kenya (LSK). Nominees must be approved by Parliament. Only after that part of the process does the president become involved.

"The law says that the president is supposed to make the official announcement of KACC directors only after this rigorous process," Mwamu explained.

Therefore, by reappointing Ringera and his team, President Kibaki did not follow the law. Instead, he began taking steps toward leadership with impunity and showed no sense of regret for his decision, Mwamu said.

In response, Parliament exercised its autonomy. House Speaker Kenneth Marende rejected the reappointments and declared the process to be deeply flawed.

Dr. George Ojwang, a political scientist, argues that this tough and credible decision resonated well with the majority of Kenyans, who had been angrily accusing the government of exercising autocratic rule. They were furious about Ringera's team, accusing them of doing very little actual work during their time of service on the anti-corruption commission.

Ringera was the highest paid civil servant in Kenya, earning even more than the country's President. But many wonder if he actually did any work to earn his salary, considering that so little was accomplished during his five years in office.

Ringera defended the lack of actions by the commission by claiming that he does not have the power to prosecute those individuals accused of corruption and saying that he managed to send over 500 corruption cases — involving ministers, members of Parlament and permanent secretaries — for prosecution to the Attorney General office.

Corruption in all areas

The highlights of the coalition government's first year in power have included a succession of corruption scandals. These scandals have led the government into a quagmire that pits the president and prime minister against each other.

Parliament has played a role at the center of these scandals. In its bid to exercise its oversight mandate, it has instituted censure motions against two cabinet ministers who have been implicated in graft.

While the long-serving Attorney General Amos Wako blames the general delay in most prosecutions in the country on discrepancies in the law, Kenyans respond that Wako has failed in his role as well. "[Wako] should honorably resign to pave the way for reforms in the central government," said John Olago Aluoch, Minister of Parliament (MP) for Kisumu Town West.

MPs John Mbadi, Jakoyo Midiwo and John Pesa, who have been ardent crusaders for reforms, echoed similar sentiments.

"While Wako has served for decades, no major public figure who has been indicted for graft has ever been arraigned in court. This demonstrates the level of incompetence in our judicial system," MP Mbadi said. For the MPs, the only legitimate way to reverse poor governance in Kenya is to overhaul the constitution. All other efforts are secondary.

Kenya's judicial branch is also not immune from charges of corruption.

Recently, the Law Society of Kenya (LSK) petitioned the president to set up a tribunal to investigate a chief justice, alleging he was "inaccessible" and failed to implement recommendations by various commissions of enquiry to reform the Judiciary. But the president stood by the justice, said Benson Amollo, a law student. "This confirms how the appointing authority abuses its constitutional powers," Amollo said. "A country can't afford to have a bench be so incompetent and complicit in defiance of justice and fairness."

A mistrust of institutions

An opinion poll on national corruption recently released by Transparency International-Kenya (TI-Kenya) indicates that about eight of every 10 Kenyans believe that although Kibaki and Raila have the power and ability, they lack the will to tackle the country's corruption problem.

"The entire state has been captured to a certain extent by corrupt interests. Nearly every institution of governance and service delivery is working in the interest of a small group of people who profit from it," said Job Ogonda, executive director of TI-Kenya.

The poll also reveals that the abuse of executive power is not the only issue that Kenyans are concerned about. In fact, Parliament ranks high in the public's estimation as an institution that has contributed the most to the failure of the war against graft.

Respondents ranked the following public institutions as the ones that are most responsible for the failure of the war against corruption: Parliament (25.6 percent), the judiciary (24.5 percent), the executive (17.9 percent), the Constitution (there is a structural problem related to discrepancies that allow room for corruption) (14.8 percent) and the KACC (13.4 per cent).

Asked which actions they want taken against corruption, 51 percent of respondents said they want more prosecution of individuals who are suspected of corruption, while 32 percent wanted new elections. About 11 percent called for a cabinet reshuffle, while 6 percent wanted mass action (boycotting work and demonstrating in the streets to stress a point of dissatisfaction with the country's administration or wrongdoings).

TI-Kenya is urging the government to issue a constitutional exemption that allows for independent oversight of key government institutions that would facilitate transparency and accountability, as outlined in the coalition's Kenya National Dialogue and Reconciliation Monitoring Project.

A chance for change

While many questions remain on the future of Kenya's fight against corruption, some actions are being taken now.

Although public institutions don't measure up to citizens' expectations, according to Owigo Olang, former assistant to the constitutional affairs minister, crusaders for change will eventually give voice to Kenyans' desire for strong action against corruption.

"I am glad that the Shadow People's government (a program by the civil society organization Kenyans for Justice and Development created to closely follow up on every branch of the Executive and the Parliament) has emerged and intends to act as an opposition to the Grand Coalition government," he said.

Three cases are already under way in the country's highest court. These include a petition that challenges the constitutionality of the parliamentary service commission; a petition that challenges President Kibaki's actions relating to the reappointment of Justice Ringera; and a petition that was filed against Kingori Mwangi, a Western Provincial Police Officer (PPO), for killing and maiming innocent citizens during the 2007 post-election violence.

Mwalimu Mati, of the Mars Group, claimed that Kenyans' disgust with their government has peaked to dangerous levels. "There is a revolutionary feeling among the public," he says. "Now it is no longer a tribal issue. People are starting to talk in class terms ... I am hearing people say that they want to have a 'barefoot president.' Anyone but the one they have now."

The pressures that are now building are especially dangerous given the lean economic times. And citizens are taking notice. "The government is broke. Right now, the cost of living has soared due to the post-election upheavals, and the state is showing little commitment to reverse the trend. It's terrible," said Jane Anyango, a 68-year-old vendor of vegetables at the Kibuye market in Kisumu.

Analysts say that the global recession is hitting Kenya on the international front. Foreign credit is harder to get, and donors are increasingly reluctant to give budget support – or even famine relief — with so many signs of corruption.

The situation is exacerbated by the cost of a bloated cabinet and the negative economic impact caused by last year's violence. Citizens and businesses paid less tax, as many segments of the economy were not functioning.

Mati says one way that might help would be to hold a new election before the scheduled 2012 election. Mati urged post-election crisis mediator and former U.N. Secretary General Kofi Annan to pressure the coalition government into taking that route. "Nobody trusts our government with money or grain anymore," Mati said.

When U.S. Secretary of State Hillary Clinton visited Kenya recently, she said the solution lies with the country. Kenya, Clinton said, must change by implementing important reforms. Previous experts have said the same thing, but little in the way of action is assured.

* Kepher Otieno is a senior investigative reporter with The Standard Media Group in Kenya and a media consultant. He is also the coordinator of the African Journalist's Disaster Risks Network in Kenya and the Nyanza Chapter Chairman of African Journalists Health Network.