Many Kenyans have expressed dissatisfaction and outright castigation of government and some of its officials because of corruption. Others have verbally, or through written word, condemned the way in which the government is tackling graft in public service. Some have gone to the streets to pressurize the government about the Anglo Leasing and Goldenberg Scandals after feeling betrayed by the government’s pledge of ‘zero-tolerance’ towards corruption.
The perceptions among Kenyans about corruption in public service have gone a notch higher than they were in 2003. Generally, in 2003, 85 percent of Kenyans opined that the government’s war against graft was done fairly well. In 2005, only 40 percent of those polled held the same view, while 51 percent felt that the government was doing very badly.
Specifically, people perceive that there is more corruption nowadays than was two years ago, especially in the Office of the President (an increase of 18 percent); parliament (an increase of 25 percent), and local government (an increase of 23 percent). While these are just “perceptions”, it would be naïve to ignore the results, which indicate that Kenyans are really disenchanted with the leaders they elected in 2002, as the three indicators are pointed towards those that were elected in the Presidential, National Assembly and Civic Elections.
Journey from History
Noah Webster (1748-1843), a scholar and author of the Webster Dictionary, once argued: “if citizens neglect their duty and place unprincipled men in office, the government will soon be corrupted. Laws will be made, not for the public good so much for the selfish or local purposes; corrupt or incompetent men will be appointed to execute the laws. Public revenues will be squandered on unworthy men; and the rights of the citizen will be violated or disregarded.”
While Kenyans have shouted from rooftops about corrupt public servants, especially the Members of Parliament, it is clear from the perspective held by Webster that the blame should first squarely fall on the Kenyan electorate. To reiterate this, it would suffice to borrow from Frantz Fannon – Black Skins, White Masks – where he argued that the citizenry is responsible for what happens in governance. To paraphrase him, day after day, the government pursues, in the name of the nation, policies that are sometimes very alien to the people. Day after day, the system starts projects, which seldom help the poor. However, it is the citizens who are responsible through their “blind indifference.”
Secondly, back to Noah Webster, the blame falls on the laws that were formulated to deal with the vice of corruption – laws made not for public good, but for selfish, myopic and partisan interests. First was the Public Officers’ Ethics Act (2003), which ensured that public servants declare their wealth but such declarations are kept under lock and key. Secondly is the Anti-Corruption and Economic Crimes Act (2003) that created the Kenya Anti-Corruption Commission (KACC), which has been perceived to be toothless. KACC relies on the Attorney General’s Office, and many would attest to the fact that while prosecution may commence, to sustain the prosecution is very difficult, either because of corruption within judiciary, lack of proper investigation on the part of police or KACC, or the person under prosecution!
Further, given that the scandals, especially the recent Anglo Leasing, there are loopholes in public procurement. A critical law is the Public Procurement and Disposal Act (2005), which is yet to replace the Public Procurement Regulations (2001). The latter regulations were criticized variously. For example, they allowed public officials to tender for projects and supply the government with goods or services often at inflated prices, sometimes three times that of the market price!
Equally, the Public Procurement and Disposal Act (2005), is not also without loopholes. While the objectives of the Public Procurement and Disposal Act (2005) are to: maximize economy and efficiency; promote competition and ensure that competitors are treated fairly; promote the integrity and fairness of those procedures; increase transparency and accountability in those procedures; and, increase public confidence in those procedures, there are loopholes that must be addressed.
First, it has been argued that the Act does not categorically state that all procurement records are public yet the entities are public institutions. Second, sections on disclosure criminalize whistle blowing. Third, the Act gives the minister unfettered discretion in constituting the Public Procurement Oversight Advisory Board yet this is the Body that will determine the effectiveness of the entire procurement process and actual implementation of the legislation.
Furthermore, it has been argued that there are challenges in implementation, where for instance, some public officials would claim urgency as an excuse to award a single contractor without competition; disqualify potential suppliers through improper pre-qualifications; interfere improperly in the work of evaluators; restricting information about contracting opportunities; and breach the confidentiality of suppliers’ offers among others. Generally, to date, the procurement process remains opaque, unfair, anti-competition and riddled with corruption, whether or not one new law replaces another indicating that the problem runs deeper.
Deeply Entrenched Problem
To address the corruption in public sector, one must trace the genesis of the problem. Dr. Crispin Odhiambo-Mbai, in Democratic Transition in Kenya, traces the problem of corruption within the public service. The rain started beating Kenya when the Ndegwa Commission, appointed in 1970, investigated the appropriate structure and remuneration of the public service. While it recommended that public servants be allowed to own private enterprises and hence run business, it also recommended that the office of ombudsman be established. The latter was not done, while the former was permitted, which resulting in widespread corruption and abuse of public office that have continued to plague Kenya since then hitherto.
Various people and reports criticized the above even before five years of implementation were over, but the government was slow to react, if at all. For instance, in 1975, the Habel Nyamu stated: “up to 1970, it was a necessary requirement that civil servants did not engage in trade or any other business… since the Ndegwa report broke this requirement and allowed civil servants to own any kind or property, … no one can stand up and argue that the efficiency of the individual civil servants who took uncontrolled advantage of this relaxation of this tradition was not affected somewhat adversely”. In this regard, professionalism was thrown out of the window while integrity was shown the backdoor.
Similarly, the Waruhiu Report of 1979 further indicated: “we have received overwhelming evidence to the effect that some public servants utilize government facilities in order to benefit themselves. Some are said to tender for government facilities…others are said to be in the habit of accepting rewards for work they are paid to do by the government…it has also been suggested that in the filed of purchasing, commissions are paid into bank accounts maintained by public servants abroad.” This is really tragic, but given that nothing has changed to date, makes it more tragic!
As recent as last year, when the department of public procurement and the European Union conducted a study, the Report indicated that checks and balances lacked in the entire procurement process. The Report also noted that there was inappropriate application of procurement method and authorization in the procurement process. Further, that some goods paid for were never delivered and that there was massive embezzlement of public funds under the pretext that the procuring agents were buying from the lowest bidder / supplier!
Where do we go from here?
From the foregoing then, how would Kenya get out of the cul-de-sac, the dead end so to speak? While it is appreciated that there are watchdog institutions; however lame, and that there are codes of regulations; however unknown or applied; not to mention the legal provisions, however wanting; there still lacks incentives for good performance and political will. Generally, there is a selective application of sanctions where the “big fish” seldom get imprisoned. Admittedly, the current Executive Director of KACC once stated that “big fish, have big money, have big friends, and have big lawyers” indicating that KACC is riding against a wave of “sacred cows”.
The flip side of this talk about corruption is that donor talks focus on corruption. Sunny Bindra, writing in Sunday Nation, 10th April 2005, stated: “ Is no one tired of this charade? Year after year, the donors tick us off and point out our various shortcomings. Year and after year, we squander what we are given…How much longer do we intend to carry on with this failed model of master and supplicant? When an act of futility is repeated incessantly it must be because it is in the interest of both parties. So why do the donors duck away from this opportunity to tackle graft? The truth is, they do not have the stomach for a fight. They do not believe it is ultimately in their interests to have a showdown with the barons of corruption”.
More often than not, Kenyans blame the ‘thieving elite’, but do not comprehend that the tentacles are longer than perceived. That is, it should be emphasized that though using the law to counteract corruption in public procurement is important, various actors should adopt other preventive ways. This is because corruption in public procurement goes beyond national borders and the actors are often powerful multinational companies.
Locally, the current constitutional dispensation and its attendant laws cannot give Kenyans the dose with which to stem corruption unless changed for the better. The unfettered powers in the Presidency, its inner circles and those close to the power would want to maintain status quo. That is, the ruling and political elite prefer to maintain the status quo than to have a procurement system that could put them on a level playing field with other competitors – whether in opposition or in government.
Thus, as Prof Abdalla Bujra, in Democratic Transition in Kenya, states: “since our vocal elite and politicians (especially those out of power and waiting in the wings – for the next election) also shout as loudly [as donors], we become even more suspicious that there is a common interest in using the issue of corruption as a ‘whipping-boy’ in order to divert people’s attention from other serious problems facing Kenyans”. This is, as Michael Holman argued, a “dance-of-make-believe”. The real agenda of the donors and their local “dancing partners” is to hold on to the economic, political and socio-cultural status quo in Kenya. In this regard, wait for no ‘saviour’ from the political elite or donor community; it is citizens themselves who can change.
Conclusively, the famous Greek philosopher Aristotle (384-322 BC) once noted: “people do not take great offence at being kept out of government…what irritates them is to think that their rulers are stealing public money”. Translate that “irritation” to power of the ballot and elect wisely in 2007.
By Tom Kagwe