Corruption in Kenya: Is there a Light at the End of the Tunnel?

Corruption in Kenya: Is there a Light at the End of the Tunnel?

Corruption has no universal definition because it is a contextual phenomenon experienced differently across the world. There are several definitions of corruption that have been offered over time, and these will continue evolving to reflect the changing nature of society, notions of values and ethics, and criminal activity. For example, Transparency International (TI) defines corruption as the abuse of entrusted power for private gain. Further, it classifies corruption as grand, petty, or political, relative to the activity, the extent of the activity, and the sector in which it occurs.

The Anti-Corruption and Economic Crimes Act 2003 (ACECA) of Kenya views corruption as acts of bribery; fraud; embezzlement or misappropriation of public funds; abuse of office; breach of trust; any conflict of interest and failure to declare personal interest; an offence involving dishonesty in connection with any tax, rate or impost levied; dishonesty in connection to the election of persons to public office and any other acts that benefit trustees for appointments; secret inducements for advice and giving out information; bid rigging; fraudulently or unlawfully acquiring, mortgaging, charging, disposing or damaging public property and illicit enrichment.

At the East Africa Community (EAC) level, The East African Community Protocol on Preventing and Combating Corruption (EACPPCC) definition of corruption, while mirroring that of TI and ACECA, goes further to include bribery of foreign public official in exchange for omission in the performance of their duties and money laundering. In the Rwanda Anti-Corruption Policy 2012, the forms of corruption captured are similar to those found in ACECA, but further capture other forms of corruption such as mismanagement of natural resources, forgery, and nepotism. In Tanzania, The Prevention and Combating of Corruption Act 2007 also captures aiding and abetting as well as trading in influence as additional corrupt practices that Kenya has not captured. Uganda’s Anti-Corruption Act 2009 further expands Kenya’s definition to include sectarianism, impersonating public officers, false certificates by public officers, unauthorized administration of oaths, and threat of injury to persons employed in public service. In South Sudan, The Southern Sudan Anti-Corruption Commission Act 2009 uses the same definition as TI and ACECA. In Burundi, TI’s definition is used to define the extend of corrupt practices in the country; neopatrimonialism is captured as one of the biggest contributors to corruption.

An analysis of the global Corruption Perception Index (CPI) shows that corruption is not an isolated issue in Kenya or the region. Over 80 per cent of the world’s population (six billion people) live in corrupt countries. From the CPI 2017 report, Kenya ranked 143 out of 180 surveyed, with a score of 28 out of 100, which is lower than the global average of 43, but closer to the Sub-Saharan Africa (SSA) average of 32. In Sub-Saharan Africa, only six (6) countries achieved a score of 50 and above.

Kenya’s performance is lower than some of its counterpart EAC countries such as Rwanda and Tanzania. Rwanda has continued to emerge as the least corrupt country with a score of 55 out of 100 in CPI 2017. Tanzania has been performing better than Kenya in the last five years (2013-2017) while Uganda has been closely following, although scoring slightly lower in 2017. The success of EAC integration will to a large extent depend on governance structures that the countries put together, especially to tackle the corruption vice.

     

The Global Competitiveness Index (GCI), which captures and ranks 16 of the ‘Most Problematic Factors of Doing Business’, shows that corruption has been the top problem for Kenya (19.1 per cent) both in score and rank in the last ten years. In the most recent report (2017-2018), Rwanda reported zero per cent corruption and ranked it as the least (16/16) factor affecting the country’s business environment. Tanzania reported corruption as the 5th most problematic factor, with a percentage share of 8.2 per cent in 2017/18. Uganda and Burundi ranked corruption as the 2nd most problematic factor with a score of 14.7 per cent and 12.1 per cent, respectively. In 2017/18, ‘corruption’ continued to be the most problematic factor of doing business only in Kenya, considering the EAC region (the index does not capture South Sudan).

  

With the significant difference in CPI performance, one might wonder what Rwanda is doing differently compared to other EAC members, including Kenya. However, looking at the World Governance Indicators (WGI), ‘control of corruption’ and ‘rule of law’ give clear indications on where Kenya may be going wrong.

Control of corruption are perceptions of the extent to which public power is exercised for private gain, including both petty and grand forms of corruption, as well as “capture” of the State by elites and private interests. Rule of law, on the other hand, are perceptions of the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence.

 

    

Rwanda was once a country plagued by conflict but has managed to turn its fate around. Considering that it is the government’s job to put in place systems to protect public institutions against corruption, Kenya’s performance in controlling its level of corruption over the last five years has improved, but still lags behind Rwanda and Tanzania. In terms of rule of law, Kenya has been in the bottom three (3) with Burundi and South Sudan. Considering that Burundi and South Sudan have ongoing political issues that bring about challenges in application of rule of law, Kenya is performing the worst in the EAC. This is because of a weak enforcement environment for laws, meaning that it is difficult to implement anti-corruption policies fairly, as laws are applied inconsistently.

Kenya has adopted a national multi-agency and multi-sectorial approach led by Multi-Agency Task Team (MATT) to fight corruption. The key institutions include the Ethics and Anti-Corruption Commission (enforcement, investigations, prevention, public education and asset recovery); office of the Director of Public Prosecutions (prosecutes corruption and economic crime cases investigated by EACC); the Judiciary (special magistrates who preside over anti-corruption courts and adjudicate over corruption and economic crime cases); office of the Auditor-General (audits of government bodies);  and the Department of Justice (provides the necessary policy guidance over the development of appropriate anti-corruption policies and laws, and co-ordination of anti-corruption strategies in the Government).

The other EAC counterparts (Uganda, Tanzania and Rwanda) have the same structure of institutions, but these seem better established with strong legal frameworks to combat corruption.

  • Rwanda and Uganda are the only two countries that have an anti-corruption policy in place to complement their Acts.
  • Uganda and Rwanda have anti-corruption institutions established by their respective constitutions and an Act of Parliament. In Tanzania, the anti-corruption agency was established by an Act of parliament only. Moreover, Tanzania’s Prevention and Combating of Corruption Bureau (PCCB) reports to the presidency, while the other anti-corruption institutions have oversight by parliament.
  • In Rwanda, the Office of the Ombudsman doubles up as the ombudsman and an anti-corruption authority. Kenya’s EACC, Rwanda’s Office of the Ombudsman (Rwanda) and Tanzania’s PCCB are similar in that they only have investigative powers, unlike Uganda’s Inspector General of Government, which has investigative and prosecutorial powers.
  • Rwanda and Tanzania have relatively stable institutional frameworks and a strong political to fight against corruption.
  • In Kenya, the anti-corruption institutions have been disbanded several times since its inception. As a result, anti-corruption strategies have not been continuous and consistent, which could be a major set-back in fight corruption in Kenya.

To improve Kenya’s performance in the fight against corruption, the institutional framework needs to be stable to allow for continuity and consistency in activities of combating corrupt practices, which in the long-term will reduce the perception of corruption.

Authors: Florine Mwiti and Shelvin Mairura, Young Professionals, Governance Department

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