WHERE DID WE GO WRONG?

Introduction

Corruption in Kenya has been a major issue since the early 70’s and has
permeated the entire body of institutional life. It has led to increase in
poverty, stagnated growth and compromised service delivery such that it’s
only affordable to those who can pay rent. When the NARC government
come into power anti-corruption initiatives such as legislations, anti-
corruption bodies and commission of inquiries were put in place to curb
corruption and look into past corrupt practices. Nonetheless, corruption
continued to thrive and measures put in place were contemned with no
regards to the plight of the common man. Thus this paper looks at how
corruption has mutated since we got our independence, the weaknesses of
the legislation introduced to curb corruption and the necessary steps that we
need to take to win the fight

Historical and Cultural background

The escalation of corruption in Kenya can be attributed to decades of weak

leadership and politics of appeasement which has led to the retrogression of
this country. Corruption was legitimized by allowing civil servant to do
business and awarding of the political elites with public land. The current
happenings with Mau forest is a case in point of the consequences of this
action. The sub-divided parts of the forest have been legitimised by the
settlers who are now accusing the government of taking their ‘legal’
property. Ahmednasir Abdulahi observers that, ‘Corruption through the
political history of Kenya was provided through the politics of appeasement.
Every time the political elites were faced with dicey political situation they
tested and tried formula was to open the coffers state to the trouble maker’.1

The fight against corruption in Kenya is not only politicized but it also
ethnicised and its proponents the subject of suspicion from the moment they
declare their supposedly selfless intentions. Once politicians are accused of
being corrupt they run back to their constituency to be defended. Karuti
Kanyinga states that “Inequalities in the composition and staffing of key
governance positions are the result of ethnicity and attempts by the
governing elite to consolidate political power by locking out members from
other ethnic groups … ethnicity provides the means of inequality in the
composition of governance institutions”2

Grand corruption started taking root after the Ndegwa’s commission

recommendations which allowed civil servant to engage in business with the
government. This led to personal aggrandisement of civil servant since they
had insider information on procurement activities taking place. Dr Lumumba

1
Abdullahi, Ahmednasir. “Coalition is a collection of graft veterans” In corruption Special Report: Have
we Lost the War? , Sunday Standard (Nairobi), February 1, 2009, p.5
2
Kanyinga Karuti. “Governance Institutions and Inequality in Kenya”. In the Society for International
Development, Readings of Inequality in Kenya: Sectoral Dynamics and Perspectives. Nairobi : Society for
International Development

Corruption in Kenya 1
in his article ‘where the rain started beating us’ states that ‘the abject
abandon with which corruption was embraced in Kenya became blatant in the
1977 and 1978 when senior Government officials openly participated in
smuggling Ugandan coffee through lakes Victoria’s SIo Port Usenge and
overland at Chepkube in western’.3 For all this atrocities committed no one
was punished leading to a culture of impunity which was inherited by the
former president and now the current government. Corruption scandals have
snowballed to greater heights due to the recycling of the same players (both
in the Moi and Kibaki regime) who have no regards whatsoever to the
common man.

In the face of a crumbling economy, deepened poverty levels and poor

service delivery, explosive public mood was witnessed after the National
Alliance of Rainbow Coalition (NARC) government came to power. The
citizens arrested and frog – marched police officers who took bribes but this
waned due to lack of political will by the government to fight the vice. There
is rising public cynicism with the coalition and dwindling confidence in
politicians. According to Kimberly ‘…political and economic liberalization has
simply exposed corruption that was once hidden …. from the most advanced
democracies to the most repressive states, the balances of power between
leaders and publics has been shifting and continues to shift in favour of open,
democratic governance’.4

Nevertheless the media, donors and non-governmental organizations have

continued highlighting and condemning various corrupt practices by the
government and in so doing building Wanjiku’s capacity to demand for a
transparent and accountable government. The Executive has further taken
the initiative to encourage citizen participation in the monitoring of public
administration and it seems geared to accomplishing the aborted governance
policies of the NARC administration like the realization of a new constitution.
TI-Kenya on the other hand seeks to continue to provide a medium for
educating the public on the legal and procedural loopholes that have
challenged the zero tolerance policy in Kenya today.

The Socio Economic Situation

Poverty, marginalization, economic exclusion and lack of political

participation on the part of the citizenry has led to escalated corruption in
Kenya. Unequal distribution of income and wealth has also been an integral
part of Kenya’s social-political life. JM Kariuki stated that Kenya has become a
country of ten millionaires and ten million beggars5. Human rights advocates
have pointed out that the failure to protect social and economic rights calls
into question the quality and viability of the Kenyan democracy which has
been attributed to past injustices producing gross inequalities.

3
Dr. Lumumba. “When the rain started beating us” In corruption Special Report: Have we Lost the War? ,
Sunday Standard (Nairobi), February 1, 2009, p.7
4
See Kimberly (1997) Corruption and the Global Economy
5
Kenyan Politician Assassinated in 1975

Corruption in Kenya 2
Those most affected by marginalization are the indigenous peoples, who are
not only impoverished and discriminated against but suffer from the
ineffectiveness and corruption of institution set up to support and assist
them. One of the most crucial issues is still access to land and land
management by the indigenous groups who are also affected by poor or
nonexistent health care.

In spite of the Million Acre settlement scheme unveiled in 1962 where land
previously owned by the settlers was purchased by the government to
resettle Africans on a variety of schemes, the majority of people who were
actually settled were not necessarily the absolutely land people who had
given the political impetus to that scheme but rather the beneficiaries were
those who had accumulated some cash through farming, small business
ventures, wage employment or sale of their existing holdings. The
programme, an attempt to establish and entrench a landed African middle-
class and counter insurgency against radical landless peasant movement, it
enabled some people from central Kenya and the post-independent political
elite to buy back land (sic).

A few people got large tracts of land, other got small parcels and still many
more who were indeed landless did not have access to this programme as
evidenced by the unending squatter problem in the forest and other area.
Therefore tension between big landowners (today mainly rich Kenyans) and
the landless has continued to mar Kenya’s picturesque landscape. The
current happenings with Mau forest is a case in point of consequences of this
action and the sub-divided parts of the forest have been legitimised by the
settlers who are now accusing the government of taking their ‘legal’
property.

A number of Sessional papers to address inequality and poverty in Kenya

were developed and of the most importance is the poverty reduction strategy
paper 2001-2004, which was also used as a basis or an input to the Economic
Recovery Strategy for Wealth and Employment creation, 2003-2007. The
paper reported that many communities identified landlessness as a major
underlying cause of poverty. The cause of poverty included high population
growth, poor land tenure systems, poor utilization of land resources,
customary laws of inheritance and land fragmentation ownership.

Observation in the successive Sessional papers and development plans

pointed out the inadequacies of land administration in Kenya, and generally
recommended the need for appraisal. A commission of inquiry (the Njonjo
commission) into existing land law and tenure was system was appointed and
the report published in November 2002. Amongst its recommendations was
the need to formulate a national land policy and establish a national land
commission for better management and administration of land. In 2003 after
the NARC government come to power the Commission of Inquiry into
Illegal/Irregular Allocation of Public Land was appointed and its report
submitted in 2004. The main issues the commissioners were looking at were
illegally allocated land and it made recommendations on how to deal with

Corruption in Kenya 3
this phenomenon. In spite of the report, no concrete action has been taken to
implement the report.
A more positive action is the initiative to formulate a National Land Policy for
Kenya which was launched in February 2004 to address the land question
holistically and the process of developing the national land policy has
progressed considerably and it is expected to translate into a more
transparent, efficient and sustainable land management and administration
for Kenya.

The NARC government also introduced free primary education (FPE) which
led to an upsurge enrolment at primary school level putting pressure on text
books and other instructional material as well as the infrastructure. Whilst
introducing the FPE, the government did not factor in children living in the
Arid and Semi Arid Land and the urban slum who may opt not to enrol in
formal primary school for various reasons.

A number of challenges face the free primary education the major one being
poor management and internal inefficiency that negatively impacts on
access, equity and quality. Thus there is need to enhance special capitation
grants in schools where parents have neglected their responsibility to
contribute to school building and maintenance. It is also imperative to
provide more alternative learning opportunities for the out of school children
as well as create strong linkage with formal education system.

Political economy of corruption

“Corruption raises important political issues about the relationship between

state and society and between wealth and power. It affects political
processes and outcomes, but its meaning, and the significance of particular
cases, is also influenced by the clash of political interest” Johnston 1997 6

Corruption has over the years become a reality of monumental proportions in

Kenya. In recent past it has grown bigger in terms of the participating
personalities and the amount of money involved. Kenya dailies are flooded
with corruption scandals heavily indicting government agencies, public
servants, officials of private and semi-private organization and private
individuals.

The first president of Kenya perpetuated corruption by rewarding his loyalist

and ruthlessly punishing the disgruntled and those who spoke out against his
leadership style. Appointments of senior officers to civil service, particularly
the provincial administration, parastatals, banks and other corporations
became his domain and they were strongly tribalistic. “The powers of the
legislature become increasingly diminished as most of the institutions of
check and balances including the judiciary were dismantled. A culture of
6
Johnston Michael. “Public Officials, Private Interest, and Sustainable Democracy: When Politics and
Corruption Meet”. In the Elliot’s Kimberly Ann (ed), Corruption and the Global Economy

Corruption in Kenya 4
intolerance to criticism, brutal repression, and political assassination began
to emerge in Kenya as an officially accepted pattern of political management.
The assassination of Pio Gama Pinto, T.J. Mboya, and J.M Kariuki provide the
best examples” 7 Anatomy of corruption.

This was the state of affairs when Moi took over power in 1978. Kenya was
essentially a corrupt society in which most of the institutions of democratic
governance, parliament and the judiciary, as well as the separation of powers
and check and balances, popular participation, transparency and
accountability had all been subverted by Kenyatta personal rule. Although
the Moi government acknowledged the existence of corruption in public
service, little was done to enforce the anti-corruption legislation or introduce
new, meaningful anti-corruption measures - in essence Moi perfected what
Kenyatta had started. Corruption became part of the survival strategy for the
Government – a means for the distribution of political patronage by
distracting attempts to formulate and implement anti-corruption
interventions in the public service. The failure of the Kenya Africa National
Union (KANU) Government to implement anti-corruption policies and
legislation suggested that the government had vested interests in the
malpractice.

External and internal pressure between the 1990 and 2000 witnessed
formation of anti-corruption measures but the same were not effectively
implemented. This period also saw the thwarting of the introduced anti-
corruption reformed initiatives whenever possible. Some of the initiatives
introduced were the amendment of the Prevention of Corruption Act (Cap 65)
to provide for the establishment of the Kenya Anti-Corruption Authority (KACA
- 1998) whose Executive Director was Harun Mwai. This was later disbanded
in 2000 and only two prosecutions took place. The period also saw the
establishment of the Parliamentary Anti-Corruption Select Committee chaired
by Musikari Kombo whose mandate was a) to study and investigate the
causes, extent and impact of corruption in Kenya b) identity the key
perpetrators and beneficiaries of corruption and to recommend the
immediate effective measures to be taken against them and c) prepare a bill
to provide for stiff penalties on corruption related offences – the report on the
causes, extent and impact of corruption in Kenya was adopted with drastic
amendment to expunge the list of shame and the Anti-Corruption act
defeated on the floor of the house.

In 1992, the constitution was amended through parliament to make Kenya a

one party state to destroy all possible centres of power this led to tribal
clashes meant to create a political environment that would render elections
impossible. Due to external pressure and possibility of withdrawal of donor
funding the biggest scandal whose effects are felt to date was orchestrated
(Goldenberg). The proceeds are believed to have been used to ensure that
KANU won the 1992 elections and subsequently maintain political leadership
in the country. The failure to prosecute culprits behind the Goldenberg

7
Kibwana Kivutha et al…, (Eds.) The Anatomy of Corruption in Kenya: Legal and Political Social
Economic Perspective

Corruption in Kenya 5
scandal, shows lack o f political commitment by the KANU government to
fight corruption.

The cumulative effects of corruption on the economic, political, social and

justice spheres significantly contributed to the demise of the KANU regime in
the 2002 election. The NARC victory in the general elections raised popular
expectation of an end to corruption. During his inauguration Kibaki stated
that, “Corruption will now cease to be a way of life in Kenya, and I call upon
all those members of my government and public officers accustomed to
corrupt practices to know and clearly understand that there will be no sacred
cows under my government”.

The President launched a National Anti-Corruption Campaign in which a

strong anti corruption agenda was born. In 2003 John Githongo was
appointed the Permanent Secretary in the Office of the President in charge of
Governance and ethics. Further, the Government, through the newly created
Ministry of Justice and Constitutional Affairs, took measures to enact the anti-
corruption legislation that had failed to become a reality during the KANU era.
A commission of inquiry into the Goldenberg scandal was appointed; and
purged the judiciary of corruption suspects identified in the Ringera report.
Expectations of the new government were high, and the public demanded for
accountability from public officers.

However, promises made regarding zero tolerance to corruption, good

governance and new constitutional dispensation became elusive over the
years. The deprivation of prosecuting powers to the Kenya Anti Corruption
Commission (KACC) which was left as prerogative of the attorney has led to
counter accusation between the Attorney General and KACC, where KACC
accuses the AG of frustrating their efforts in the fight against corruption.
While the separation of power is ideally an appropriate check against
concentration and abuse of power by KACC, the importance of creation of
KACC, is undermined where the AG is not obliged to charge identified
corruption cases.

The AG’s office is an unreliable institution in the struggle against corruption.

Specifically the incumbent is the chief prosecutor for the state, the chief legal
advisor to the government and a member of the cabinet minister. The AG is
therefore unlikely to prosecute a suspected ‘prominent’ personality without
the authority of the president or the cabinet as a whole; 8 The public officer
ethics act compel public servant to declare personal income, asset and
liabilities, but stipulate strict confidentiality of the information thus
undermining the significance of the exercise. Moreover some of the public
officers involved in the Goldenberg scandal were part of the NARC and now
Grand Coalition Government regime with senior position in the public service.
The Emergence of new corruption scandals such Anglo Leasing, the Maize
Scandal, the Triton Saga and in the Kenya Tourism Board shows the
continued challenges facing the fight against corruption, which is
8
Chweya Ludeki. “The Government Anti-Corruption Programmes 2001-2004”. In the Control of
Corruption in Kenya: Legal and Political Dimensions 2001 - 2004

Corruption in Kenya 6
compounded by weak legislation and strategies employed by the
government. This is attributed to the lacklustre of the operations of the AG’s
office and the failure to address the actual cause of corruption – political
patronage and the deficiencies of the enacted laws.

The operations and existence of KACC are vulnerable to constitutional

changes thus the envisaged constitutional amendment should ensure that
the commission acquires its due responsibility to prosecute corruption
suspects. The struggle against corruption is a difficult task precisely because
key public servants, especially political leaders in the cabinet are the leading
culprits in corruption. The ability of senior government officials and politicians
to defraud public through the issuance of irregular instructions to civil
servants suggests that the civil service lack an adequate degree of
professional autonomy from the political institutions of the state – that is ,
senior civil servant, notably permanent secretaries and the director or
commissioners of specialized units, lack the leverage to reject irregular and
unlawful orders and instructions from seniors politicians and to stand by the
formal rules, procedures and requirement of their profession and office.

The cabinet is not able therefore to lead the anti-corruption crusade as part
of the government programmes. The struggle against corruption has to be
seen in conjunction with rather than in isolation from the struggle for
democracy. The struggle for democracy in turn has to involve the
establishment of institutions and processes to anchor a popularly elected
government that can rely on popular support for legitimacy, and eschew
patronage and corruption 9

On the other hand, legislative gaps such as the absence of access to

information laws, breeds a culture of secrecy and impunity in the
management of public affairs denying the public the right to monitor the level
of transparency and accountability in government planning and expenditure.
Further, the administrative red tape of institutions such as the budget office,
the Auditor General’s Office, and the Parliamentary Accounts Committee
(PAC) remain shrouded in secrecy. As a result, we have had budgetary
process that has been susceptible to corruption and embezzlement due, in
part, to a lack of citizen participation.

The International Aspect

Given the extreme dependence of the country to external funding,

multilateral institutions like the World Bank and the International Monetary
Fund as well as bilateral ones, especially Denmark embargoed foreign
economic assistance to Kenya until the Government implemented meaningful
and effective measures to fight and end corruption. This condition was
intended to give government an incentive to eliminate corruption from public
office and demanded for accountability and transparency in the style of
governance and management of public affairs.

9
Ibid

Corruption in Kenya 7
Between 1991 and 2001, the KANU government yielded to pressure for
democratization and accountability and began to implement a range of
measures against corruption. These were:-

a) In 1991, the government established the Efficiency Monitoring Unit;

amended the prevention of corruption act to enhance punishment for
offenders; formed the KANU review committee whose report
established that “wananchi” found it impossible to obtain services from
public servant without having to pay bribes. This was an aid embargo
from the Paris Club. The Kenya Bribery index since its inception has
attested to the difficulties encountered by “wananchi” in accessing
services
b) In 1997 the Paris club re-imposed the aid embargo previously lifted
due to the Government failure to punish Goldenberg suspects. The
Corruption Prevention Act was also amended to provide for the
establishment of the Kenya Anti-Corruption Authority - this was an IMF
Aid embargo. Further in 2000 the government published the Anti-
Corruption and Economic Crimes Bill (2000) which the Government had
promised the IMF to take further measures in the fight against
corruption.10

The dissolution of KACA in 2000 infuriated donors, especially the IMF and
the World Bank. The IMF offered to assist the Attorney general re-draft two
bills- the constitutional of Kenya amendment bill, 2001 that was meant to
grant KACA constitutional legitimacy and a broader Anti-Corruption and
economic Crime bill, 2001 to replace the supposedly obsolete Prevention of
Corruption Act. The bills were defeated in parliament upon introduction to
have them debated. The IMF and the World Bank further insisted on
Structural Adjustment Programmes which were meant to drastically reduce
the role of government in the management of the economy.

In 1997 the GOK, in collaboration with IMF, World Bank and DFId conducted
from 1997 a series of study that confirmed that the system of financial
accounting in the public service was weak and contributed to the high
incidence of corruption and loss of public resources. The studies
demonstrated rampant disregard for accounting procedures and regulations;
inadequate and unreliable financial information system, including data input
and out put; mismatch between project identification, expenditure
requirements, resource availability, and expected benefits; deficient
budgeting system for both expenditure and revenue; and inadequate
monitoring of expenditure and revenue collection especially between the
district level departments and the headquarters of ministries in Nairobi. The
reforms were intended to enable the department (Internal Audit) to become
more vigilant in safe guarding public resources. 11

10
Chweya Ludeki. “The Government Anti-Corruption Programmes 2001-2004”. In the Control of
Corruption in Kenya: Legal and Political Dimensions 2001 - 2004
11
Republic of Kenya, Report on Strengthening Government Finance and Accounting Functions prepared by
Accountant General’s Department and KPMG, volume 2 – main report, June 1997.

Corruption in Kenya 8
In July 2003, IMF officials praised the Government reforms. However they
observed that “While the Government has begun to crack down aggressively
on corruption, the administration challenge is to run sound and sustained
economic programme. 12The donor community has continued imposing
conditions to the GOK for it to qualify for aid. An example is the passing of
the Public Procurement and Disposal Act and also during the post-election
crisis they ensured that the two principles reached an agreement in order to
get further assistance from them. The fiscal dependence upon external
financing and sacrifices that citizen are asked to make to comply with
international adjustment mandates are perceived by ordinary citizen and the
parliamentarians as mechanism of foreign domination and exploitation.

Conclusion and Outlook

Kenya currently finds itself in a prolonged structural crisis, which

simultaneously affects the political system, the economic structure and all
social sectors. The events of the past years have shown lack of political will in
the fight against corruption and the country’s social, ethnic and cultural
fragmentation has never been overcome. The political elite has never willed
or able to integrate Kenya’s multiple elements leading to the profound sense
among large section of the population who do not see themselves
represented in parliament. The writing and enactment of a new constitution
may be a way to start closing the breach between population and the
decision makers, but this does not solve the problem that the will of the
people will always be subject to interpretation.
The legal frame work in place is laudable. However its effectiveness and
efficacy in combating corruption in Kenya’s public life is undermined by poor
political leadership offered by disunited ruling political party. The analysis
further notes that, in official rhetoric there is political will to combat
corruption but the practical will is missing. Despite of the intensive
anticorruption rhetoric, corruption in Kenya continues unabated leading to
overall disenchantment with the Government’s anti-corruption initiatives. The
GOK credibility, seriousness and sense of focus are in doubt.

A number of factors contribute to public doubt; the continued wrangles in the

Grand Coalition Government; fuelled by regional, ethnic and personal
interests have replaced the original lofty ideals and vision for the party.
Politics and politicking have diverted focus from anti-corruption war and
critical issues at the economic level and in particular the need for an effective
campaign against corruption. Good legislation has been put in place but
legislation alone will not end corruption – even as laws are being enacted
corruption in some ministries remain rampant.

The government has made several initiatives aimed at eradicating corruption

in Kenya. However, the fight against corruption faces acid tests due to the
weaknesses in legal and policy frame work. To mitigate this there is need to
ensure that the political will to fight corruption is sustained; coordination of

12
Saturday Nation January 3, 2004

Corruption in Kenya 9
anti-corruption strategies, plans and policies to avoid unnecessary costs over
attempts to re-invent the wheel.

Overall, it can be concluded that despite the anti-corruption legislation and

the apparent political will to fight against corruption, the war against
corruption remain fragile and poorly coordinated. Corruption in Kenya has
become a culture and attempts to eradicate it need mechanism and
strategies that go beyond the legal frame work.

Reference:
1. Chweya, L., Kithome, J.T., and Akivaga, S.K. (2005) Control of
Corruption in Kenya: Legal –Political Dimension 2001 – 2004. Nairobi:
Claripress
2. Elliot, Kimberly Ann. (Ed.). (1997) Corruption and the Global Economy.
Washington: Institute for International Economics
3. Kibwana Kivutha et al.., (Eds.). (1996) The anatomy of Corruption in
Kenya: Legal, Political and Social economic Perspectives. Nairobi:
Claripress
4. Kibwana, K., Akivaga, S.K., Mute, L.M and Odhiambo, M. (Eds). (2001)
Initiatives against Corruption in Kenya: Legal and Policy Interventions
1995-2001. Nairobi: Claripress
5. Maina, Wachira. (2004) Overview of Corruption in Kenya: Counting the
Costs, Combating the Consequences and Charting the future
(unpublished)
6. Society for International Development (2006) Reading of Inequalities in
Kenya. Nairobi: Society for International Development

Wanjiku Kiiru

Corruption in Kenya 10
Corruption in Kenya 11