KITUO CHA SHERIA BLOG

Is the Law Effective in the Fight against Corruption in Kenya?

Literature review in the subject of corruption paints a picture of a phenomenon that is not only feared but also frowned upon. This may be because of its dynamic nature and ability to spread its tentacles through the social, political and economic spheres of society. Whether it is liked to a cancerous tumour or an enemy in the battle field, the bottom line is corruption is undesired. In Kenya, the conversation on the fight against corruption has lasted lifetimes. As much as corruption is not black in colour, it is one of the major attributes of the independent Kenya. Many pundits and political commentators have therefore openly attributed corruption to a bad colonial system Kenya inherited. While this may be true, fifty- years down the line, it is more of a very old and tired argument that helps Kenyans to blame other people for their mismanagement.

Historical records put the year 1956 as the first time an anti-corruption legislation were enacted in the country.  The Prevention of Corruption Act Cap 65 of the Laws of Kenya was enforced by a police unit known as the Anti-corruption squad up until 1993. This was because these were just preventive measure to protect the young nation from the dangers of corruption. However, today corruption has transformed into a vice causing irreparable damage to the country. Kenya’s economy is doing badly and she is in debt, she has institutions that are not trusted by the citizenry and a political class that either thrives in corruption or have failed in dealing with the vice.

Corruption is broadly defined as dishonest and illegal behaviour mostly by those in position of power. Acts like abuse of office, favouritism, sexual exploitation and bribery fall squarely within the domain of corruption. This article is dedicated to the law and how it has helped or may help in fighting graft.

The Constitution of Kenya (2010) is the first stop. Like any other written Constitution in the world, it lays down the governance structure, history and the aspiration of the people.

Kenya’s supreme law recognizes corruption and lays down the frame work to eradicate it. The Preamble to begin with, recognizes the aspiration of Kenyans and the values of intergrity and the rule of law. Article 1 gives sovereign power to the people of Kenya and not to State officers or people in power. Article 10 (2) further elaborates on the national principles and values of governance which include: transparency, rule of law and intergrity. Chapter Six on leadership and intergrity, sets out responsibilities for those in State offices, outlines a code of conduct, sets the rules on financial probity and restrictions on their actions. The Constitution of Kenya, 2010 ultimately is set with separation of power both vertically and horizontally that gives checks and balance that prevent abuse and ultra vires use of authority hence prevent corruption.

Is the Constitution effective? The supreme law gives the general framework and guidelines- and to that end it is very sufficient. The only gap is with the areas where Parliament is required to enact legislation. The standards of legislations from Parliament seem to have watered down the anti-corruption agenda

Kenya has signed and ratified a number of International conventions on the fight against corruption. These include UN Convention against Corruption (2003), AU Convention on Prevention and Combating corruption (2003). Further, Kenya joined its East Africa Community partners in forming the East African Association of Anti-corruption Authorities (2007). These instruments make Kenya an international player when it comes to the war against corruption. There is however need to domesticate these instruments and implement the law and recommendations.

The Parliament of Kenya has also enacted a number of legislations that help in fighting corruption. The Ethics and Anti-corruption Commission Act, sets up the anti-graft body which is meant to teach, set policy, vet public officers and prosecute corruption. However, this body and the mother law have not been effective for lack of capacity and insufficient political goodwill.

As much as the EACC is set to fight corruption it cannot do that effectively when they depend on other bodies for investigations and prosecution. The Anti-Corruption and Economic Crimes Act (ACECA), 2003 is the parent punitive Act that deals with issues of corruption. It is a break-away from the Penal Code as there was need to maximise the sentences as the State pays more attention to these offences. The Proceeds of Crime and Anti-Money Laundering Act, 2009 is a legislation that was made so as to try and reverse the effects of corruption. It protects public funds from public officers who love to pilferage funds

The Leadership and Integrity Act and Public Officers Ethics Act, 2003 are meant to regulate behaviour of those entrusted with public office. They are drafted from the background that leadership is a privilege and those in leadership need to be of the highest standards of intergrity. These Acts of Parliament have however not been effective. There is need to amend the laws so as to make those in leadership transparent about their wealth businesses and interest. The legislations should also bind public officers to certain qualifications and education standards.

Government Management Act, 2004 and Public Procurement and Disposal Act, 2005 deal with public money and procurement procedure. They are meant to ensure that taxes from Kenyans are put to good use however there have been loopholes in the legislations that have been exploited and therefore the need for amendments.

 In conclusion, the law is very broad and other than a few changes it is perhaps effective. The people whose work is to implement the law need to be more effective. Paraphrasing the words of former US President Obama… “while we may not be perfect, we can desire to be more perfect, step after step, mile after mile.”

By:

Ouma Kizito Ajuong’

Advocate