ESSAY
THE NARC’S ANTI-CORRUPTION DRIVE IN KENYA Somewhere over the rainbow? GLADWELL OTIENO
The departure of former president Daniel arap Moi from Kenya’s political scene and the ascension to power of the National Rainbow Coalition (NARC) after the 2002 elections generated hope that a political system that had become almost synonymous with corruption would undergo funda- mental redemption. While the early days of NARC rule seem to paint a picture of a government committed to combating corruption, most analysts continue to warn the Kenyan public and the international community not to slip into premature excitement. This article puts the early days of NARC’s rule under scrutiny with a view to shedding light on the new government’s commitment to eradicate the scourge of corruption.
Introduction seen Kenya occupying an apparently perma- nent position near the bottom of TI’s annual Corruption Perceptions Index. The 2002 elections in Kenya saw a resound- By May 2003 two keystone pieces of legis- ing rejection of the Kenya African National lation had been enacted: the Anti-Corruption Union (KANU) and Daniel arap Moi’s legacy and Economic Crimes Act (ACECA), of endemic corruption and mismanagement. As the first electoral change of government which created the Kenya Anti-Corruption in independent Kenya, it aroused hopes of Commission (KACC) with responsibility to the possibility of reform and renewal. Among investigate corruption and economic crimes President Kibaki’s first acts was the creation of and conduct public education on corruption; a new Ministry of Justice and Constitutional and the Public Officer Ethics Act (POEA), Affairs (MoJCA), mandated to coordinate the which provides for codes of conduct for all anti-corruption campaign and spearhead the public officers and compels all officers to enactment of laws to facilitate it. The appoint- declare their wealth, including that of their ment of Transparency International’s (TI) John spouses and dependent children. With these Githongo to the newly created position of two Acts, Kenya fulfilled long-awaited condi- Permanent Secretary (PS) in the Office of the tions for the improvement of relations with President for Governance and Ethics was con- multilateral institutions after their suspension sidered an indication of serious political will of cooperation with the Moi government. The to combat the pervasive corruption which had International Monetary Fund (IMF) resumed
GLADWELL OTIENO is a political scientist and former executive director of Transparency International, Kenya. 70 African Security Review 14(4) • 2005 lending in November 2003. The new govern- the president, who took every opportunity, in ment argued that, rather than submitting to the first year, to reiterate his stance of a ‘zero external demands, it was henceforth commit- tolerance policy’ towards corruption. Kenya, ting itself to its own conditionalities for the like many other countries embarking on legal economic recovery of Kenya. However, the reform, already had anti-corruption legislation attitude of the ‘international community’ has in place; the key ACEC Act is the successor to constituted a large part, whether positively or the greatly under-enforced colonial Prevention negatively, of the NARC government’s preoc- of Corruption Act, 1956. However, it goes far cupations. beyond the latter in its definition of what con- stitutes a corrupt act and in creating a mecha- nism that enables the government to seize Economic recovery through good gov- corruptly and criminally acquired assets. ernance The Public Officer Ethics Act crafts ethi- cal standards for public officers and creates The overall policy direction of the NARC a legal framework for dealing with conflicts government is laid down in the Economic of interest. The occupation of public office Recovery Strategy for Employment and Wealth in Africa has long been the shortest avenue Creation 2003 (ERS). In keeping with its elec- to great wealth, and Kenya is no exception. tion manifesto the new government’s plans for Kenyan civil servants’ consciousness of what recovery were firmly predicated on the need constitutes a conflict of interest has become for governance reforms and the strengthening remarkably blunted over the years following of governance institutions. The ERS promises the conclusions of the Ndegwa Commission, the passage of key laws – in addition to the which in 1971 recommended that public ACECA and POEA, a Public Procurement officers be allowed to conduct private busi- and Disposal of Public Assets, and a Financial nesses.2 However, a series of measures were Management and Accountability Bill were also recommended that ostensibly aimed at promised within the 2003/04 financial year. mitigating the danger of conflicts of interest. The government also undertook to bring indi- They were largely ignored, while the permis- viduals involved in corruption to court. The sion to engage in business was enthusiastically Attorney General and the Anti-Corruption embraced by the nascent African bureaucratic Police Unit, precursor of the KACC, were to elite. A conflict of interest that particularly produce quarterly progress reports on inves- irks the Kenyan public today is the exploita- tigating and prosecuting cases of corruption; tion by senior public servants, in particular the establishment of task forces to review MPs, of their power to determine their wages various past misdeeds was also envisaged. The and allowances, leading, in the absence of a ERS promised the establishment of a commis- national wage policy, to exorbitant pay scales sion to inquire into the Goldenberg Scandal and profligate expenditure.3 It should be (see below) so that proper prosecution and noted that the wealth declarations submitted assets recovery could follow. Further measures, under the POEA are not amenable to easy including the creation of an ombudsman, were scrutiny since, apart from being strictly con- contemplated.1 Progress against corruption fidential, they are available only in hard copy was to be achieved through a strategy whose and an inadequate format for the provision pillars were leadership or political will; dealing of relevant and comprehensive information. with the abuses of the past (or ‘transitional jus- Attempts led by Githongo to capture the dec- tice’); institutional reform and legal reforms; larations electronically and render them easier and coalition-building with non-state actors to monitor were unsuccessful. and the international community. While the NARC government’s reform Political will is commonly viewed as essen- strategy is heavily biased towards a lengthy tial to the success of any reform programme. menu of legislative reform, Kenya’s parlia- The Kenyan anti-corruption programme was ment, despite the generous salaries and allow- predicated on the personal commitment of ances it has approved for itself, is notoriously Essay 71 lethargic. For the larger part of 2003, MPs for the last time, the NARC government dis- managed to pass only three laws. played a talent for shooting itself in the foot. However, the report, with its list of beneficiar- ies of illicit land transactions, demonstrated Dealing with the past clearly the web of complicity that implicates large sections of the Kenyan elite of whatever Kenyans hoped to uncover, punish and, it political colour in plundering the country’s is hoped, avert repetitions of the abuses of resources. According to the report, illegal the past. The NARC government chose to forest excisions alone amounted to 299,077.5 investigate and ultimately redress these abuses hectares since independence. Development of through a series of specially established com- a comprehensive land policy remains impera- missions of inquiry. The most prominent tive. was the Commission of Inquiry into the The Task Force on Truth, Reconciliation Goldenberg Scandal, established to look into and Justice was appointed in March 2003 to the infamous and complex scheme of swin- enquire into the possibilities of establishing dles around non-existent exports of gold and a commission to deal with past human rights diamonds from Kenya in the early 1990s, abuses, as other countries undergoing tran- which ultimately cost the country an esti- sition from authoritarianism to democracy mated US$650 million.4 The commission did have done. The task force consulted widely, well to unearth in detail the methods used to travelling around the country, and recom- defraud the country. However, after a massive mended the establishment of a commission investment of resources, questions whether on the South African model to deal with the commission will adequately fulfil its terms abuses by the state and its agents. It recom- of reference are justified. Kenyans demand mended that the commission also consider that the senior figures involved be brought to economic crimes. The government has not book. They crowded to witness the proceed- established such a commission. It is doubtful ings of the commission, which were reported whether it will, given that it eventually formed on fully in the electronic and print media. a government of ‘national unity’ that includes However, if the conduct of the inquiry is any politicians from the previous administration, indication, they may well be disappointed. some of whom would have been the subject The report of the commission is not expected of inquiry by such a commission. until October, at which time Kenyans may The Pending Bills Verification and well be too preoccupied with the planned Validation Committee sought to unravel valid constitutional referendum to pay attention to from invalid claims on the government in the its conclusions. Already the government has area of construction and recommended that distanced itself from its original commitment hundreds of millions of shillings be repaid to recover assets. by construction companies, in some of which The Commission of Inquiry into Irregular public officials had an interest, and that some and Illegal Allocation of Public Lands, known companies be blacklisted. Pending bills are as the Ndung’u Commission after its chairman, one of the many imaginative ways in which looked into the expropriation of public lands the exchequer is defrauded. Ministries fail to to the politically connected. The misappropri- pay their bills and carry them forward into the ation of public land was increasingly adopted following financial year(s). Apart from allow- under Moi as a means of accessing resources ing them to fudge their expenditure positions, and dispensing patronage as other avenues for this is a gross violation of regulations that also corruption were increasingly closed down by represents expenditure incurred without parlia- advancing economic liberalisation. However, mentary approval. Through this mechanism, the government’s delay in publishing the government ultimately pays for non-perform- Ndung’u report, leading to public suspicion of ing contracts or fraudulent bills; for instance, manipulation of the committee’s conclusions, of a batch of 31 companies whose pending overshadowed the commission’s work. Not bills for KSh9 billion were scrutinised, only 72 African Security Review 14(4) • 2005 about Sh250 million – or 3 per cent of the edifice. In the event of its passage, important total – were genuine claims, the committee investigations by the KACC would risk being found.5 terminated. Admittedly, doubts on the level of energy and commitment to these investiga- tions are yet to be decisively negated. NARC’s Constitutional reform belated fulfilment of its promise of a new constitution threatens to ratchet up political In keeping with NARC’s promise to deliver a and ethnic polarisation. Kenya’s usually reti- new constitution ‘within a hundred days’ of cent and hands-off president has been much its inauguration, successful conclusion of the in public evidence, actively leading the cam- process of constitutional reform that had stalled paign for a ‘Yes’ vote, a partisan move whose under Moi is a major benchmark of NARC’s wisdom is open to question. He has, further, performance. The process underlines the fluid- been reported as having made a concession ity of the current political situation in Kenya. on an aspect of the draft constitution after The provisions of the various drafts of the vocal representation by an affected constitu- constitution in the unfolding, protracted and ency, an action that would appear to open the hotly contested process had been uncontro- floodgates for applications by other aggrieved versial as concerns anti-corruption institutions parties.7 in the narrow sense until the tabling of the new draft, by Attorney General Wako, which is destined for presentation to a national refer- Radical surgery: The first year under endum in November 2005 for a straight ‘Yes’ NARC or ‘No’ vote. In a surprising shift, the new draft has introduced changes to the hitherto The first year of the NARC regime saw a meas- uncontested anti-corruption architecture pro- ure of progress on various fronts. Diagnosing posed previously. Most glaringly, it no longer corruption in the judiciary as a major block to contains an Anti-Corruption Commission. reform, the regime set about what it referred The Ethics and Integrity Commission, which to as ‘radical surgery’ of the judiciary that was had also been proposed in earlier drafts, is widely regarded as exceedingly corrupt and retained. However, the commission has now, subservient to the executive under the Moi in the opinion of constitutional law expert regime.8 Beginning with the suspension of Wachira Maina, been reduced to a “toothless, Chief Justice Chunga, who then resigned, an merely clerical and archival constitutional Integrity and Anti-Corruption Commission busy-body: it will receive and store declara- of the Judiciary was constituted. It travelled tions of wealth, do some of the things now around the country receiving memoranda done by service commissions under the Public and conducting public hearings. Out of 82 Officer Ethics Act and issue anti-corruption magistrates, 17 judges of the High Court and guidelines to public officers”.6 Since the man- 6 judges of the Court of Appeal were impli- date of the Ethics and Integrity Commission cated before the commission in allegations is different from that of the KACC, which of corruption by the public. Eventually 76 has investigative powers, this would mean magistrates were retired in the public inter- that upon passage of the new constitution, est, while 12 judges of the High Court and 4 the KACC would either have to wind up or judges of the Court of Appeal opted to retire.9 risk facing challenges to its constitutionality. While agreeing with the assessment of the While it was clear that the anti-corruption and integrity of Kenya’s judiciary, and noting the governance institutional framework would be continued existence of judicial corruption as subject to uncertainty under a new constitu- a serious impediment to the rule of law, the tion, as institutions would have to be restruc- International Commission of Jurists criticised tured and budgets reassigned or established, shortcomings in the exercise, which it viewed this new draft deals what would appear to as prejudicial to the independence of the be a mortal blow to NARC’s anti-corruption judiciary and to principles of due process and Essay 73 security of tenure.10 Others went further. For analysed the reports of the Controller and them, NARC’s strategy appeared limited to Auditor General and found that the Kenyan firing corrupt judges while leaving the real government may have lost more than KSh475 business of judicial reform untouched: billion (US$6.4 billion) between 1991 and 1997 through corruption and bureaucratic laxity.13 None of the important dimensions of judi- It is clear that the most pervasive and cial reform have […] even made it to the costly cases of corruption in Kenya involve seri- discussion table. They include: 1) dealing ous bureaucratic lapses. But again this action with precedents tainted by corruption; 2) appeared to be ad hoc and unrelated to any implementing the changes needed to ensure consistent and comprehensive effort. Despite the institutional and decisional autonomy this purge, procurement, particularly in the area of judges; 3) implementing measures for of security, was to present an ever-greater cred- ensuring judicial accountability; 4) settling ibility problem for the NARC government’s the question of acting or contract judges; 5) claims of a clean-up effort. In contrast to the addressing the role of judges in quasi judicial ERS promise to reform procurement regula- political bodies; and 6) refining the process tions in the 2003/04 financial year, this process of appointment, promotion and removal of took until mid-2005, when parliament finally judges and magistrates.11 passed a new law under massive donor pressure. Its results will remain to be seen, but there is Opponents of the ‘radical surgery’ also cast cause for concern in the continued excessive aspersions of ethnic favouritism and patron- space granted to executive discretion. age. A particularly dramatic action was the raz- Kenya’s mixed experience in dealing with ing of structures that had been illegally erected endemic judicial corruption throws up lessons on public land, particularly road reserves, which for transitional governments on the dilem- saw even luxury mansions being torn down in mas attached to breaking away from a corrupt the full glare of media publicity. This was done and unaccountable past. The reformers, often to prepare for the construction and extension of novices to government and in a minority, were roads and bypasses and create the preconditions faced with aggressive counter-reaction in an for economic recovery by repairing Kenya’s area essential to progress in the fight against inadequate and damaged infrastructure, itself a corruption, with cases being repeatedly thrown result of massive corruption over the decades. out and constitutional challenges mounted. However, after a vigorous start, the campaign However, their attempt to dislodge elements of petered out inconclusively, partly owing to the the old regime that were securely ensconced in political unpopularity of evicting poor commu- bastions such as the judiciary raised questions nities without providing alternative shelter. that were to haunt the legitimacy of the reform At regional and national levels, Kenya signed effort. To their disadvantage also, the reformers the African Union Convention on Combating failed to determinedly address corruption in Corruption and Related Offences after the AU another stronghold, the bureaucracy, an omis- summit in Maputo. On 9 December 2003, sion that contained the seeds of the defeat of Kenya became the first country in the world to the anti-corruption campaign. sign and ratify the United Nations Convention The summary suspension in May 2003 by Against Corruption (UNCAC). In contrast to the Minister of Finance of all senior procure- its haste to ratify the UNCAC, and the pledges ment officers was a further example of the use made by the president at the Maputo AU sum- of personnel purging, ostensibly to break up a mit in July 2003, Kenya has yet to ratify the AU “mafia-like procurement cartel through which Convention, despite repeated assurances to the [the officers] were effectively controlling the contrary. Kenya also undertook to be one of the entire public procurement system”.12 Around frontline states in implementing the African Peer the world, public procurement is a lucra- Review Mechanism under NEPAD. However, tive source of illicit enrichment. A study by implementation has been slow and dogged the Centre for Governance and Development with political wrangling. In addition, Kenya is a 74 African Security Review 14(4) • 2005 signatory of the Eastern and Southern African of public disaffection and the eventual recap- Anti-Money Laundering Group (ESAAMLG) ture of the centres of power by well-resourced memorandum of understanding, established and organised corrupt elements, and the clo- to combat a scourge of “strategic importance sure of this ‘window of opportunity’.17 to organised crime generally, and to corrup- While Kenya saw a series of dramatic moves tion in particular”.14 Despite this, the country in the first year of the new regime, there was has still not adopted a law to combat money little follow-through and a stop-start approach laundering. appeared to give corrupt elements room to An examination of the first NARC year as regroup and to recruit enthusiastic new adher- reported in the local press exposes a multitude ents from among the ranks of the new govern- of revelations by NARC public officials of ment. All policy change creates winners and wrongdoings of the past regime and activities losers. Anti-corruption reform is no different. aimed at reversing them.15 Public opinion sup- Therefore it is not surprising that potential and ported this drive; an opinion poll conducted by actual losers quickly unite forces to frustrate it. TI-Kenya in September 2002 showed that 59 Government disunity did not help. The strife per cent of the respondents considered corrup- found its origins in the dissatisfaction of a tion the number one national issue. Although coalition partner over an unfulfilled agreement 80 per cent of Kenyans at that time believed on power-sharing concluded before the 2002 that the government was committed to fighting elections between the constituent wings of the corruption, 35 per cent thought that corruption ruling coalition, NARC. Unfortunately, what was a problem in this government. In contrast began as a promising experiment in governance to government reluctance to act on corruption in the African context increasingly presented within its ranks, 66 per cent of Kenyans thought itself as an unwieldy and unruly collection of corrupt ministers should be sacked. This is a warring factions with power reputedly con- stark reminder of the political capital which centrated in a kitchen cabinet composed of was wasted by government procrastination on Kibaki’s allies from the so-called Mount Kenya its declared goals. Mafia, so named because of the geographical origins of the ethnic groups involved, which is in itself reportedly disunited. Coalition building
Reform-minded ministers within NARC adopt- Patronage politics ed a policy of collaboration with the civil society from which some of them had come. To understand the evolution of events from the Similar to civil society in post-apartheid South end of 2003 it is necessary to step back and look Africa, which found itself depleted of leading at the nature of the regime that took over office cadres and disoriented in its strategy toward a after 2002 and some of the enduring features of reform-willing government, Kenyan civil socie- Kenyan politics. Many Kenyan observers speak ty organisations (CSOs) went through a period of an incomplete transition or even deny that of reorientation.16 From a positive stance at the there has been a transition at all. The govern- outset, many CSOs found themselves adopting ment was, after all, not so new; many of the an increasingly adversarial position towards ministers in the NARC regime had been in government as movement on central reform government before, including President Kibaki platforms slowed down. What had gone wrong? himself as well as figures such as Minister Experience in other Third World countries for Education George Saitoti, who had been attempting a transition from an unaccountable mentioned in connection with the Goldenberg and corrupt past has shown that, for a short Scandal. period, extensive public support and confi- Kenya is a multi-ethnic society. The instru- dence can facilitate the rapid implementation mentalisation of politics along ethnic lines of a range of far-reaching measures. Conversely, has led to a de-institutionalisation of political failure to act decisively can result in the growth parties; rather than articulating and mobilising Essay 75 around interests and policies they depend on for procurement of passport issuing equip- ethnic mobilisation. Politicians have effectively ment by the Department of Immigration utilised ethnicity to build political constituen- (DOI), and one for a forensic laboratory for cies, including support bases to attack threats to the Criminal Investigation Department (CID) their political and economic interests. In addi- under the Ministry of Internal Security, which tion, politics in Kenya, as elsewhere in Africa, is together reportedly cost the government over dominated by the expectation and granting of KSh7 billion. Ironically, the projects began patronage, which encompasses politicians and life under the previous regime. The immigra- the electorate in a maze of mutual complicity. tion procurement, originally projected to cost A study by TI-Kenya tracked expenditure of about KSh622,039,944.65, lapsed, only to be some MPs in the 2002 pre-election period and resurrected and expanded under the NARC showed that MPs often spent more than they government. On 1 August 2003 Anglo Leasing earned on various ‘donations’, raising the ques- and Finance Ltd submitted a purportedly tion of where they found the additional funds unsolicited, but detailed, technical proposal and what trade-offs were involved.18 Kenyan for supply and installation of an Immigration voters are accustomed to viewing elections as Security and Document Control System a time when they can ‘eat’ at the expense of (ISDCS).20 A financial agreement suggesting politicians in return for their vote. In effect, a facility of KSh2.67 billion for the system rather than trusting to the uncertain future repayable at 5 per cent was included. Although returns of development policies promoted by the proposal was apparently proffered without their representatives, voters prefer to receive an official request, it seems to have conformed tangible benefits directly and immediately. The with an updated technical specification report, politics of patronage drives the demand for raising suspicions of collusion. Authority was ever more resources with which to conquer sought for direct procurement, or single sourc- and maintain political power. Analysts trace a ing, which was granted by the Treasury. The direct link between the advent of competitive Public Accounts Committee, questioning the multi-party politics in 1991 and the growth use of single sourcing, labelled this a clear of mega-scams such as Goldenberg. Nor is the denial to government of the advantages of problem overcome. The felt need to amass public bidding.21 After signature of an agree- wealth for electoral competition in 2007 may be ment between the government and Anglo a major factor behind the current re-emergence Leasing on 4 December 2003, the sum of of looting. Breaking the nexus between politics KSh91,678,169.25, or 3 per cent of the credit and money is an intractable problem around sum, was paid to the financing firm in February the world. In Kenya, the 2004 version of the 2004. Preposterously, when questioned, the Political Parties Bill has been developed, includ- government disclaimed all knowledge of the ing proposals on public funding of political identity of the principals or actual location of parties to begin to address this problem. Once the company to which it had paid out such a again the real challenge is one of enforcement, sum of money. with all parties having great difficulty comply- While the Public Accounts Committee was ing with their own constitutions, let alone the investigating the DOI procurement exercise, letter of existing laws.19 another contract with Anglo Leasing emerged, in relation to a forensic laboratory project for the CID, for which a total of almost US$5 mil- The rot sets in lion was paid for services that were never ren- dered. It was clear that a high-level conspiracy It was in 2004 that the case that was to become was at the root of this affair, and indeed the synonymous with grand corruption in NARC, public had been told that investigations were Anglo Leasing, or ‘Anglo Fleecing’, in popu- under way to unravel the mystery, coordinated lar parlance, surfaced. The affair involved at by John Githongo and involving the Kenya least two contracts with a shadowy company Anti-Corruption Commission. Mutual legal known as Anglo Leasing and Finance Ltd, one assistance had been obtained from both Britain 76 African Security Review 14(4) • 2005 and Switzerland. The primary lead being fol- president resorted to a stratagem that he has lowed was tracing the source of a refund to the since employed with increasing frequency, Treasury of the US$5 million already paid to the reshuffle. Against promises to the elec- Anglo Leasing, apparently in connection with torate of a lean government, the reshuffle the forensic laboratory project.22 bloated the ranks of government to Moi-esque In the weeks that followed, government proportions. Elements of the former regime attempted, without success, to defuse the from opposition parties who were associ- fallout from Anglo Leasing and its extensive ated with the abuses of the past were invited media coverage. An announcement by the into the Cabinet. Although the government powerful Head of the Public Service and tried to sell the reshuffle as a ‘government Secretary to the Cabinet, Francis Muthaura, of national unity’, members were invited in on 22 June 2004 seemed to pre-empt the with no consultation with their parties. While completion of investigations by summarily the government may have thereby swelled its clearing all public officers, ministers included, parliamentary majority, it escalated the trans- from blame in the matter.23 He also threatened action costs of pushing its projects through civil servants who leaked government docu- parliament, since they henceforth had to be ments with punishment under the Official negotiated on an individual rather than a party Secrets Act. In addition, it was seriously argued basis.25 Accusations of bribery within parlia- on various occasions that no harm had been ment abound.26 At the same time, and almost done, since the money had been repaid. This incidentally, the reshuffle moved PS Githongo line was repeated by the gauche Minister for away from the Office of the President to the Justice and Constitutional Affairs over half MoJCA. Given the president’s repeated point- a year later when he, directly contradicting ing to Githongo’s easy access to himself as Githongo’s assessment of Anglo Leasing as proof of his commitment to the fight against a ‘test case’ for NARC that hung around corruption, the move was seen as a downgrad- its neck like a ‘millstone’, referred to it as ing of the anti-corruption agenda. Energetic ‘the scandal that never was’.24 Public anger protests led by civil society and the donors was high, with demands for the sackings of ensued and within two days Githongo was those politically responsible, particularly of back at State House. The ease with which the the Minister for Finance, David Mwiraria, and gains made under NARC could be reversed the then Minister for National Security, Chris nevertheless was disconcerting and agitation Murungaru, under whose watch there had for a fundamental uncovering of the Anglo been repeated reports of procurement irregu- Leasing Scandal continued. larities. When permanent secretaries were later In February 2005, in another reshuffle, indeed prosecuted, purportedly in connection in response to revelations of new scandals with the affair, no explanation or apology for and unrelenting pressure that also divided misleading the public was forthcoming from the Cabinet, the controversial Murungaru, Muthaura. Nor was public opinion placated, Minister for National Security, was moved although the accused were senior officials. to Transport, in an action that seemed to The impression dominated that the real ‘big acknowledge that he was indeed problematic, fish’, those who were politically responsible but kept him in government. Rather than pla- and had the power to influence decisions, cate the public, this dithering reinforced the were being let off scot-free. To this day the impression that there was no political will to government owes answers on many questions resolutely address high-ranking graft. to Kenyans in connection with Anglo Leasing; Anglo Leasing brought the vexed issue of the exact status of investigations by the KACC security procurement to the fore. Conducted is unclear. in secrecy, often without competition, military At the end of June 2004, in an attempt procurement is internationally dogged by cor- to quell perennial Cabinet wrangling and ruption, as the infamous South African arms put to rest clamour for action on grand scandal demonstrated. The Kenyan military corruption, particularly Anglo Leasing, the is as implicated in the web of corruption that Essay 77 entraps Kenya as any other institution. The reported as warning, “Watch out for business- extensive reshuffling of the military leadership men in government who are exploiting the by Kibaki in August 2005 has been connected criminal justice system to extort money”.32 to reports of massive corruption. However, in The truth is difficult to determine but, if justi- time-honoured fashion, Kenyan senior officials fied, such allegations raise the spectre of the rarely retire or are fired; they simply shuffle on criminalisation of the anti-corruption agenda to another sinecure, such as chairmanship of by murky special interests. In a speech made in those parastatals that have survived the sword Germany after his resignation, John Githongo of privatisation. Kenyans, and indeed anyone refer to “red embedded corruption networks at all, may well be forgiven for questioning that bring together politicians, businessmen- how a stint in the military qualifies one to brokers, bureaucrats and security officials lead organisations such as the Kenya Meat [and] can thrive in the shadows as cohesive, Commission, Kenya Ports Authority, Kenya albeit amorphous, entities reshaping the eco- Wine Agencies and Kenya Industrial Research nomic destiny of African nations, as a result Institute, which is where, it is reported, the of the size and scale of their illicit transactions; retired military gentlemen were recycled. This transactions that can entrap entire sections of apparent placation of soldiers with plum civil- the political elite”.33 Anti-corruption reforms ian jobs also causes concern about the separa- threaten to shut down this lucrative under- tion between the civil and military realms. ground economy. Not surprisingly, the opera- tives of this underworld fight back, and they have the resources to do so. In extreme cases, The criminalisation of the state? such as in Italy, reformers are murdered. In others, resources are mobilised to fund oppo- Corruption is a crime that is closely associ- nents and compromise supporters. In Kenya, ated with other crimes. Officers of the Kenyan the corrupt seem to have fought back and police force are often accused of active involve- captured central areas of the state. Reformers ment in crime: immigration officials facili- ignore these realities at their peril. tate the commission of terrorist acts through acceptance of bribes,27 and corrupt officials launder the proceeds of their crimes, all in a The role of the international community ‘tangled shrubbery of illicit activity’.28 Kenya has been classified as a high risk for money From the days of the Moi regime, donors laundering.29 A Draft Proceeds of Crime and have been among the driving forces behind Money Laundering (Prevention) Bill 2004 still Kenya’s anti-corruption actions. As NARC awaits approval, debate and enactment. At the retreated from its pledges, the donors played 7th Eastern Africa Police Chiefs Cooperation a greater role in keeping the issue on the Organisation conference this year, the Kenyan agenda. Particularly prominent in this regard police commissioner spoke of the increase in have been the US and Britain. British High trafficking in human beings, drugs, firearms Commissioner Edward Clay in particular and stolen motor vehicles. In December 2004 attracted the wrath of NARC’s ministers with one of the largest cocaine seizures in Africa his forthright public statements on the issue. netted drugs weighing 1,141.5 kg, worth about In a sensational move, Britain also revoked KSh6.4 billion (US$86.5 million) on the mar- Minister Christopher Murungaru’s British visa ket.30 Subsequently, there was controversy because of his ‘character, conduct and associa- between the immediate former Director of tions’.34 NARC reacted in a characteristically Public Prosecutions, Philip Murgor, the Police shambolic manner, first distancing itself from Commissioner and the Ministry of Internal the fate of its minister in parliament, then Security over the handling of the case and appearing to disown its own parliamentary the drugs, leading to intense public specula- statement and accusing the British govern- tion over purported official skulduggery.31 ment of committing an ‘unfriendly act’, only Furthermore, the DPP, after his sacking, was to again apparently abandon the minister to 78 African Security Review 14(4) • 2005 his own fate. The minister has since embarked Secretary for Governance and Ethics John on a suit against the British government that Githongo. will allegedly cost him about KSh7 million Recently the Githongo affair received an (US$95,000).35 Public reaction sways between interesting twist when the former PS reacted to condemnation of British ‘colonialism’ and a call from the reformist Minister for Planning studiedly disinterested calls for exposure of for clarification of the reasons behind his res- the specific reasons behind Britain’s decision ignation by issuing a statement to the media that cannot conceal a certain Schadenfreude at declaring his readiness to give a full account the controversial minister’s fate. Others have of the information in his possession to any suffered a similar destiny; last year, Nicholas competent authority. It remains to be seen Biwott, formerly Moi’s right-hand man, with what NARC – or rather the ‘kitchen cabinet’, whom the Kibaki regime has recently appeared busy with forcing along the contentious con- to have a rapprochement, was barred from stitutional referendum process, and unlikely entering the US, on suspicion of corruption. to welcome distractions, particularly those In a tightly stage-managed consultative group that threaten to credibly expose wrongdoing meeting, the government met with donors within its ranks – will make of his challenge. in April 2005. Presenting an elaborate report By the time of going to print, there has been on its anti-corruption activities largely aimed no official reaction. at countering the combative diplomat Clay’s The NARC anti-corruption campaign has public claims on corruption cases, the govern- ground to a halt. This was recently explicitly ment labelled 2005, after over two full years admitted by Justice Minister Murungi, who of NARC incumbency, ‘the year of action’ on attempted to retract this statement after a corruption. A hastily cobbled together anti- public outcry. While there initially seemed to corruption action plan was presented. The be some genuine political will, the campaign plan was largely a warmed-up serving of already appears to have lost ground to the dictates of intended additional legislation and unrealistic political survival of the central faction around promises about projects such as the moribund the president and the reassertion of the influ- 36 national anti-corruption campaign. ence of corrupt cartels. Although the KAAC follows up on some cases, there is no record of successful prosecutions of prominent officials. NARC fights back Quite clearly, the NARC government has other worries on its mind. Prospects are that If 2004 saw the NARC government on the the closer elections come, the less priority the defensive, reeling under serial revelations of fight against corruption will enjoy. All indica- corruption within its own ranks, 2005 was to tions are that the next elections will begin be the year when a progressively more belliger- with the referendum slated for November ent and unrepentant regime went on the offen- 2005. The current situation remains in flux sive. In this, the government’s confidence was with events rapidly succeeding each other and buoyed by signs of a significant economic the outcome uncertain. It remains to civil recovery and the resultant feeling that it could thumb its nose at the donors, who seemed society to keep the issue on the agenda and increasingly irresolute and disunited in their continue to articulate the public desire for ‘a response to official corruption.37 However, new Kenya’. 2005 was also the year in which the falsity of NARC claims to a genuine anti-corruption Notes commitment was exposed by the sensational resignation in February from abroad of the 1 Economic Recovery Strategy for Wealth and Employment Creation, GoK, 2003,
land tax, 16 January 2005, in which the Finance 19 Cf Centre for Governance and Democracy, Policy Minister gave the Minister for Cooperatives a Brief, Political parties to be funded by state, Issue land tax waiver of at least R60,000 on the latter’s 01/03, March 2005. acquisition of a private farm. Both professed to 20 Ibid, p 8. see no harm in the action. 21 Ibid, p 9. 3 Cf H Mule, T C I Ryan and D Ndii, Public sector 22 Cf Mati, op cit. wage policy study, Ministry of Finance, Nairobi, 23 The East African Standard, 22 June 2004. 2004. 24 The East African Standard, 12 January 2005. 4 Government of Kenya, Gazette Notice No 1238, 25 Maina, 2005. 24 February 2003. 26 Cf Raila Odinga’s claims on bribery in parlia- 5 Daily Nation, 9 September 2003. ment over constitutional reform, The East African 6 W Maina, Daily Nation, 29 August 2005, p 5. Standard, 29 August 2005. 7 Daily Nation, 30 August 2005. 27 Cf TI Kenya, The Kenya Bribery Index, 2004, p 10, 8 Cf The Report of the Advisory Panel of Eminent which lists the Immigration Department as the Commonwealth Judicial Experts, 2002, who were institution with the greatest likelihood of encoun- ‘shocked and dismayed’ by allegations of bribery tering bribery, at 89.6 per cent of encounters. The of judges. Kenya Police have topped every edition of the 9 Status Report on the Anti-Corruption Agenda Kenya Bribery Index from its inception as the of the Government of Kenya, Kenya Anti- Kenya Urban Bribery Index in 2001. Corruption Commission, unpublished mimeo 28 J-F Bayart, S Ellis and B Hibou, The criminalization presented to CG meeting, April 2005. of the state in Africa, James Currey, Oxford, 1999. 10 Report of the fact-finding mission to Kenya by 29 Goredema, op cit, p 14. the ICJ, 2005,