Promoting good governance has become a key priority in ensuring all public institutions operate effectively and efficiently to assist in realization of shared national development goals. With corruption as an eminent threat to good governance, fair business competition as well as democratization processes, this has heightened the need to build trust between the government, public services and the citizens by putting in place strategies to promote good governance in the management of public resources. For example, public servants and the political class hold substantial power over the allocation of resources under their scope of duty and responsibility and, therefore, need to exercise integrity by being accountable to the citizens who elect them and pay their salaries through taxation. As a result, several countries all over the world have introduced systems of income, assets and liabilities declarations as a powerful tool to fight corruption. Wealth declaration is intended as a way for citizens to ensure leaders do not abuse their power for personal gain, thus anchoring ethics and integrity.
Having the right legal, institutional and administrative frameworks that enable, support and improve transparency and accountability in public service delivery is thus a priority for various development blueprints. For example, the Sustainable Development Goal 16 aims at building effective, accountable and inclusive institutions; aspiration 3 of the Agenda 2063 (of the African Union) envisages an Africa of good governance that respects the rule of law. In Kenya, Vision 2030 advocates for good governance practices guided by the rule of law. Further, as enshrined in the 2010 constitution; the Public Officer Ethics Act 2003, the Anti-Corruption and Economic Crime Act 2003, Ethics and Anti-Corruption Commission Act 2011, Public Procurement and Assets Disposal Act 2012, the Public Appointment Act 2012 and the Leadership and Integrity Act 2012 set out ethics and integrity thresholds for public officers to curb corruption. The Mwongozo Code also provides guidelines for all public institutions to operate effectively and efficiently through a complementary mechanism that provides checks and balances in the use of public resources.
Specifically, the Public Officer Ethics Act 2003 is a key tool used in disclosure of income, assets and liabilities by appointed and elected public office holders. Public officials are expected to act in public interests by declaring their wealth at the assumption of office. This helps to prevent conflict of interest where, in principle, public officers are expected to put public interest first before their private interests. However, in practice, this does not always happen as self-interest may be sometimes very strong hence overriding public interests in the discharge of public responsibilities. Conflict of interest may be because of nepotism, financial interests or allegiance to a given authority. Besides, the efficacy of the mechanisms of wealth declaration by public officials is still doubtful, mainly because of the low levels of enforcement and compliance.
Generally, the rationale for income, assets and liabilities disclosure is to increase transparency and trust among public officers. Increased transparency is expected to reduce levels of rent seeking and corruption and deter use of public office for private gains, whether through financial or other benefits to self, relatives or associates. As such, putting in place credible disclosure mechanisms whether public or confidential helps to build the trust of the government in their citizens and promote the commitment by public officers to discharge their responsibilities. Wealth declaration also helps anti-corruption agencies to monitor wealth variations of individual politicians and public officers to persuade them from misconduct and protect them from false accusations, as well as helping to clarify the full scope of illicit enrichment or other illegal activity by providing additional behavior evidence.
That said, there are various challenges that hinder adherence to the income, assets and liabilities declaration mechanisms which are mainly rooted in the institutional weaknesses to enforce adequate compliance through effective execution of the provisions of the Act. For example, some provisions of the Public Officers Ethics Act conflict with the Leadership and Integrity Act 2012 where the leadership, integrity and the ethics threshold required by the Act is lower than the threshold set by the Leadership and Integrity Act 2012. In addition, the Act does not put a special focus to State Officers who handle large sums of money and whose behavior is expected to be beyond reproach but just emphasizes on all public officers. Public servants who have responsibilities of handling large sums of money should be subjected to regular monitoring checks to detect possible embezzlement in between the two years of wealth declaration.
While public officers have since 2003 been required to declare their wealth, the information has been kept secret and not subject to public scrutiny, except with written authority of the relevant commission, making it difficult to hold anyone accountable. The Act stipulates that anyone who otherwise makes such information public is guilty of an offence and liable to imprisonment for five years or a fine of Ksh 500,000. This makes it difficult for the public to provide checks to public officers who get in office to enrich themselves. Nigeria, for example, passed laws that allow the public to access information and this provides a critical tool in fighting graft. Under the Constitution of Kenya, access to information is among the rights and fundamental freedoms, and therefore in aligning the Act with the Constitution such aspects can be considered.
There is challenge of striking a balance between controlling improver enrichment and protecting the privacy of those declaring wealth with respect to jointly owned property or properties in the process of legal transfer from 2nd or 3rd party since they are not party to the employment contract and cannot be lawfully obliged to disclose their wealth. As part of best practice, several countries such as South Africa and Nigeria have adopted hybrid schemes that demand public disclosures in situations where public interests outweigh private concerns.
The enforcement of wealth declaration faces strong resistance within the public service when it comes to public disclosure of wealth. Inadequate political support undermines consensus for reforms that can trigger demand for change over time. However, some countries such as South Korea have been quite successful in promoting voluntary compliance as an initial step to providing political incentives to introduce compulsory measures and enforcement mechanisms in the long run. In 1993, President Kim Young Sam publicly disclosed his wealth and called on other high-level officials to do the same. Consequently, over 300 officials complied and later in the year, the country adopted mandatory disclosure requirements of wealth by public officials.
Lifestyle audit of public officers has not been fully embraced as a mechanism to monitor changes in wealth from the time they get in public offices to the time their tenure ends. Whereas some institutions have been able to do lifestyle audit, it is not done by independent regulatory institutions/bodies to enhance credibility of the process. Wealth declaration will only be a meaningful tool to aid in curbing corruption if comprehensive lifestyle audit of public officers at the end of tenure in office is carried out.
Further, there is lack of adequate resources and capacity to monitor wealth declaration to ensure proper administration, verification and confirmation of the authenticity of the wealth declared by public officers. For instance, an evaluation report in 2005 of the implementation of Public Officer Ethics Act of 2003 highlighted a major challenge to monitor all public officials from top ministers to low ranking officers. This challenged the government’s capacity to effectively process wealth declarations due to inadequate capacity to compile, process and store the declaration forms and determine how many officers had complied with the Act. With advancement in technology, digitizing declaration of wealth for all government ministries, departments and agencies is inevitable to ease the process of application, compilation and analysis and storage.
To ensure smooth enforcement and implementation of wealth declaration, this can be achieved through development of appropriate internal controls and organizing trainings for public officials to enhance awareness. In addition, there is need to have simplified reporting procedures that can be easily understood and followed. Wealth declaration reporting burden can be reduced by providing electronic option of filling out and transmitting the forms for all government ministries, departments and agencies. This will also serve to reduce the need for bulky storage platforms. The Public Officer Ethics Act should be amended to allow the public to access information on wealth declaration to actively provide checks to corrupt public officers. Both National and County governments should comprehensively adopt an independent lifestyle audit at the end of tenure in office as an enhanced outcome of wealth declaration. This will help trace and recover illicit wealth from corrupt officials. There is also need to build the capacity of non-state actors to promote effective monitoring and oversight of wealth declaration. Coverage of exploitative malpractices of public officers can assist in providing bases for prosecuting or taking stringent actions against them through public censorship or through other means. Building capacity on the process of wealth declaration is also necessary to ensure credible implementation.
Author: Stephen Nyamu Nduvi, Young Professional, KIPPRA
