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.