By David Kigochi
The political temperature in the country is rising every day courtesy of President Uhuru Kenyatta’s-led anti-corruption crusade. It is not in doubt the war against graft in Kenya has split leaders. The executive is operating at cross purpose, and the same is true of the political class.
The North Rift, and a section of the Mount Kenya region’s political elites are split too. A section of the regions’ leaders are crying foul over the wave of arrests made by investigative agencies against managers and officials of various parastatals and the executive linked to corruption.
Fear is growing that the battle over the fight on corruption could quickly take an ethnic or regional twist and lead to violence as severe as that which followed the 2007 elections. Deputy President William Ruto has severally alluded to the perception that the anti-corruption crusade has taken a political angle, and warned against targeting people on the basis of their perceived political persuasion. Loyally and unfortunately, his allies have now picked the chorus, warning that law enforcement agencies should not be ‘used’ to destroy people’s careers. This is indeed a dangerous trajectory.
On his part, President Uhuru Kenyatta and opposition supremo Raila Odinga, after the much hyped handshake, maintains that Kenyans have no option but slay the dragon of graft that is threatening to waste the prospects of future generations.
It has not helped that Jubilee leaders allied to President Uhuru have issued stern warning to DP Ruto, accusing him of disrespecting the president. For many Kenyans, it is now apparent that the President and his deputy are not reading from the same script on matters corruption.
At the same time, it is important to note that the energy and determination exhibited by the Director of Criminal Investigations, George Kinoti and the Director of Public Prosecution Noordin Haji in the war against corruption has given Kenyans high hopes. In a matter of months, many high-profile public officials have been seized and arraigned in court to answer to corruption charges. Among these are those suspected to have been involved in the scandals at the National Youth Service, which has become a veritable den for graft.
It is pertinent to appreciate concerns raised by those who fear that the war on corruption should not be weaponized, ethnicised or politicised. This can only help diminish the public goodwill the country has experienced in the crusade against corruption. And as a nation, we will all lose in a country where corruption has become a national security threat.
However, we acknowledge that concerns have been expressed about the trial of the cases. First, they take exceedingly longer to be adjudicated and dispensed with. Which is why the Executive has been critical of the Judiciary, asking it to find ways and means of expediting the trials. Chief Justice David Maraga has committed himself to doing just that but we are not there yet.
But our concern as a political party is that as the wars on the manner in which the fight on corruption must be conducted intensifies, the gains in fighting the vice are now being negated. It is even more worrying considering the sad reality that the culture of corruption has grown roots in Kenyan society at large and become endemic.
Institutions, which were designed for the regulation of the relationships between citizens and the State, are being used instead for the personal enrichment of public officials (politicians and bureaucrats) and other corrupt private agents (individuals, groups, and businesses). Corruption persists in Kenya primarily because there are people in power who benefit from it and the existing governance institutions lack both the will and capacity to stop them from doing so.
For President Uhuru, it is not in doubt that the biggest threat to his Big Four Agenda and his legacy is corruption. Across all sectors, corruption is a very high risk for companies operating in Kenya. Investors face both high-level corruption in the form of nepotism, patronage and abuse of power, as well as petty bribery and extortion.
The social cost of corruption in this country is incalculable. It has emptied our ethical contents, hemorrhaged our economy, corroded and destabilized our politics. It must be confronted directly and boldly, employing the full panoply of instruments of public education, sanction and restitution.
We concur that both administrative and legal measures must be summoned in this fight. One significant but often ignored truth is that fighting corruption is primarily a political project. The political will leading that fight will only succeed if it is credible.
We must ponder. Why did wananchi undertake citizens’ arrest of corrupt officers when NARC (National Rainbow Coalition) came to power? Why did harambees, land allocations and the attendant corruption around public land die during the Kibaki years? If the link between harambees and corruption had long been established, why did we resurrect them in 2013, sometimes in total disregard of the law that prohibits public servants from conducting them?
It is not in doubt that the politicians are viciously clawing at each other over how the fight on corruption ought to be conducted. But the big question we pose, is do the political elite now leading the fight against corruption have the moral standing sufficient to win public credibility? If they do not then how can they win? My view is the lifestyle audit from the top that was promised by President Uhuru would have come close to conferring that credibility.
For us, the substantive point of debate should delve on the quality of investigations and evidence presented before the courts. It’s worth noting that sometime back, the court freed 11 suspects in the NYS case upon the application of the DPP, Mr Noordin Haji, to withdraw the charges against them. Prosecution and conviction are based on incontrovertible evidence. Investigative and prosecution authorities are obliged to assemble concrete facts to sustain any charge in court. Lack of that undermines the legal process. A lot of work has to be done on this.
Oftentimes, the Judiciary is blamed for lethargy in handling criminal cases, and for a good reason. However, at times it is not for their incompetence. On occasions, it is because the prosecution has not done its work properly or argued out its case competently.
It is not lost on us that, in the first term of the Jubilee administration, the Ethics and Anti-Corruption Commission gave President Uhuru a list of Cabinet Secretaries, Principal Secretaries and other top government officials allegedly involved in graft, who were subsequently fired. But most of the accusations fell flat for lack of evidence. That is the kind of scenario we cannot countenance.
Therefore, the starting point for winning the war against corruption is ensuring there is sufficient evidence. There is a grave danger when corruption cases collapse because the public easily loses confidence in the fight. Worse, it emboldens the corrupt in the knowledge that they are safe. That public confidence must be sustained, especially when there is political goodwill as it is today.
Yet the war must be fought and won. We commend the DCI and the DPP for their commitment but the lesson is that they must do more homework so that, when they seize and present suspects in court, they have sufficient evidence to secure a conviction.
It is worrying that politicians are warring over the manner corruption ought to or should be fought as though the country lacks a legal framework to guide the process. Since 1956, Kenya has had anti-corruption legislation. The first was the Prevention of Corruption Act (Cap 65), which was, however, repealed in May 2003. In 1993, there were efforts to establish an anti-corruption squad within the CID wing of the police. Unfortunately, the squad was disbanded in 1995 before it could make an impact.
The Prevention of Corruption Act (Cap 65) was later amended in 1997 to provide for the Kenya Anti-Corruption Authority (KACA), the first Government anti-corruption agency established by law. The first director of KACA, John Harun Mwau, was appointed in 1997. In 2000, the High Court, in Gachiengo vs Republic, ruled that KACA undermined the powers of the AG and Commissioner of Police. The High Court held that the statutory provisions establishing KACA were in conflict with the Constitution. As such, KACA was disbanded.
In 2003, however, two statutes were enacted to relaunch the fight against corruption: Anti-Corruption and Economic Crimes Act and the Public Officer Ethics Act Section 70 of the Anti-Corruption and Economic Crimes Act repealed the Prevention of Corruption Act. The law also established the Kenya Anti-Corruption Commission (KACC).
Kenya signified its commitment in the fight against corruption by becoming the first country in the world to ratify the UN Convention Against Corruption in December 2003 in Merida, Mexico. This was after becoming a signatory to the AU convention on Preventing and combating Corruption in 2003 Kenya later ratified the AU Convention in 2007. Indeed, the country has no shortage of the legal framework to deal with corruption.Mr David Kigochi, is Leader, Farmers Party