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Recently, various stakeholders held a national conference on integrity at the Bomas of Kenya, Nairobi, where the President, the Deputy President and the former Prime Minister were key participants.
Again, during the just concluded Sixth Devolution Conference, the three leaders separately addressed the corruption question.
Usually, corruption is best fought if there is demonstrable political will by the country’s highest office.
Between 1963 and 2002, public officers in Kenya behaved as if they had a right to corruption; the right to “kitu kidogo” and impunity.
Senior public officers never believed a time would come when corruption would become “the enemy of the people”.
One of the greatest challenges in fighting corruption today is that very few past and serving public officers can legitimately claim that they never boarded the gravy train.
In the Sixth Devolution Conference I recounted the biblical story of the woman caught in adultery whom lawyers and Pharisees brought to Jesus.
They wanted to know whether Jesus would approve of the mosaic death penalty by stoning.
As Jesus bent down and started writing on the ground with his finger, he asked: “Let any one of you who is without sin be the first to throw a stone at her.” Those gathered around her slithered away, the older ones first.
I used the story to suggest a high percentage of public servants at both national and sub-national levels have historically partaken of corruption.
What concrete steps can we then employ to fight corruption?
Section 62 of the Anti-Corruption and Economic Crimes Act provides that “a public officer or State officer charged with corruption or economic crime shall be suspended, at half pay, from the date of the charge until the conclusion of the case …”
Politicians serving as State officers as defined in Article 260 of the Constitution have so far been exempted from the above Section 62.
Those charged continue to stay in office. Currently the Director of Public Prosecution (DPP) is seeking the judicial correction of this discriminatory anomaly.
If senior people accused of corruption continue to remain in office, they can potentially intimidate or otherwise compromise officers serving under them who are witnesses.
According to the proposed Article 99 of the Bomas Draft constitution of 2004, the ethics and integrity commission was mandated “to establish and maintain a register in which assets and liabilities of State officers are recorded”.
It was mandatory for the commission to make available for the public inspection such register of assets and liabilities.
In my view, according to Chapter Six of the 2010 Constitution, the wealth declarations made by public officers and State officers can be opened for public scrutiny.
Currently, those who apply for State jobs have to declare their assets and liabilities. In the ensuing interviews, the candidates have to defend the disclosed information.
So there is precedent for publicising wealth declarations. Even Chapter Six can be used to authorise periodic lifestyle audits of all public officials.
In the Sixth Devolution Conference, a representative of the DPP stated that plea bargaining should be allowed to settle some corruption cases.
This is a normal procedure if an accused willingly enters a guilty plea to avoid a long drawn trial. Such an accused can become a State witness in exchange of a lenient sentence.
Either at the point of plea bargaining or at the end of a trial, the entirety or a portion of public assets that an accused person stole must be recovered. This is to avoid unjust enrichment. Corruption shouldn’t be a lucrative business.
Currently, those vocal on the war on corruption favour custodial sentences for those found guilty. Obviously when senior people, including politicians are jailed for corruption, their crime partners are petrified.
Many influential writers have also suggested that in order to vanquish corruption, a negotiated and time bound amnesty can be offered to the corrupt subject to their returning to the public proceeds from past corruption. Kenya should debate this option too.
In a new important book by Clayton Christensen and others titled The Prosperity Paradox, the authors argue: “In most of today’s prosperous countries, proper enforcement of laws against corruption followed investments in innovations that either created new markets or grew and connected to existing ones.”
Hence, the majority of the people and even companies doing business under corrupt regimes find that they have to “hire” corruption in the short or medium term to paradoxically guarantee their own progress or profits.
The authors continue to argue that when prosperity increases, then the justification for corruption decreases. Legal sanctions in this new environment are more effective.
Drawing on the above insight, to fight corruption effectively in Kenya would, initially, involve our having to “produce” real middle economy prosperity so as to reduce the appetite for corruption by both taker and giver.
Although I agree with the above, I still believe we should establish a constitutional anti-graft commission whenever we review our 2010 Constitution but with the power to both investigate and prosecute offenders.
Recently, I chanced upon a book on Managing Yourself where one author powerfully demonstrates money is not the source of happiness in life.
Those who find purpose in their lives and in whatever they do have an “opportunity to learn, grow in responsibilities, contribute, and be recognised” are the most fulfilled.
Therefore, a public servant can accumulate millions or even billions and be a miserable person.
President Uhuru Kenyatta has decided to ride a tiger to slay the graft dragon. He cannot dismount before he draws dragon blood. Each Kenyan has a duty to help the President to vanquish corruption.
Some years to come, let us reflect on the John 8 biblical story so that when, in our mind, Jesus says: “Woman, where are they? (her accusers). Has no one condemned you?”
As a country we can answer. “No one, Sir.” Then we can rejoice when we hear the Son of Man proclaiming: “Then neither do I condemn you … Go now and leave the life of sin.”
Prof Kibwana is the Governor of Makueni County
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