The Ethics and Anti-Corruption Bill – A Review

The CIC has put out a draft Ethics and Anti-Corruption Bill for public comment (see www.cickenya.org/bill_tracker). This is a review of the bill based on a more comprehensive analysis that I produced, titled Kenya’s Implementation of the United Nations Convention Against Corruption (UNCAC), for the MPs in 2009.

The Ethics and Anti-Corruption (EAC) bill is best reviewed against the key reasons corruption continues to be so endemic in Kenya. The first reason is political. Political causes for corruption cannot be resolved by legislation. President Kibaki government’s anti-corruption credentials have never been restored since the re-emerging of Anglo Leasing scams in 2005. Managing political interests of key politicians from both parties to the Grand Coalition, to sustain the Coalition, has resulted in turning a blind eye to high level corruption. Wider reforms, from implementing the new Constitution, fortunately provide significant promise in limiting the reach of the political class to public resources. For example, Cabinet Secretaries will be technocrats and not politicians and can be easily replaced, if corrupt, with limited political ramifications.

Public sector reforms including improved staff performance systems and effective public procurement are critical in reducing corruption. Transparency International (TI, Kenya) has demonstrated that public institutions that improve their internal systems have reduced graft significantly and sustainably. For example, TI’s work with the Teachers Service Commission produced good results. The EAC bill is weak on the ethics elements and makes no links to performance systems. It largely repeats what is in Chapter 6 of the Constitution. The EAC bill could explore the national values and principles of governance (Chapter 2 of the Constitution), that the President will report on annually, and the Bill of Rights to expand understanding on ethics.

Legal shortfalls have also been a handicap in the corruption fight. The EAC bill’s key strength is the expansion of offences. New offences include possession of unexplained wealth, impeding public investments, plundering of public office, ill gotten wealth and failure to report corruption, conspiring or attempting to commit an offence (there would no argument, for example, that Anglo Leasing funds were returned and so there is no case). Spouses, close relations and other associates of public officials are also included in describing offences factoring in the use of proxies to commit economic crimes. Crimes committed before the EAC legislation are also considered offences. The Communications Commission of Kenya (CCK) should be consulted for appropriate language on electronic/computer related crimes. The final EAC legislation should maintain this wide scope of offences. Additionally, the Freedom for Information bill should accompany the EAC bill to ensure all legislation gaps are filled.

The EAC bill provides for prosecutorial powers to the proposed Ethics and Anti-Corruption Commission (EACC). These powers have been a subject of debate since the Kenya Anti-Corruption Commission (KACC) was created. With an independent Public Prosecutor, the argument for EACC prosecutorial powers is weak. The country has an independent Prosecutor although his legitimacy is in question. Due court process should resolve questions on his legitimacy and make duplication of prosecution unnecessary. The EACC should also not assume international co-operation responsibilities of the Attorney General’s office. A government has to operate as a single cohesive unit especially in its external relations. Broadly it should be noted that the KACC or EACC is a duplication of investigation and prosecution services that can be conducted by the police and public prosecuter. If the police and prosecuter are effective, an EACC (as in developed countries) is not necessary.

The EAC bill has overreached in defining the mandate for the EACC. It proposes to set ethics and integrity guidelines for public organisations. It further seeks to criminalise the failure to follow these guidelines or other recommendations from the EACC. The fight against corruption is a national effort and relevant knowledge needs to be generated in all public organisations and among the citizenry. That knowledge is not rocket science and need not be the forte of the EACC.

The EACC is not a government and should not seek to lead a Kenya Integrity Forum of all government bodies including Parliament, County Governers and civil society. Indeed, as demonstrated by efforts of the Anti Corruption Multi Stakeholder Committee, this kind of forum is a farce. Corruption is a manifestation of the political economy of a country. Wider issues like the nature of the political settlement (e.g. the corrupt coalition born of civil conflict), political party financing, an effective Judiciary, Parliament and Police determine the scope of corruption in a country. Education for the public, on anti-corruption, is only relevant when strong governance institutions support the political economy.

The final, one million dollar question, is how a rogue assembly like Kenya’s 10^th parliament will be persuaded to pass strong EAC legislation. Significant political work will be necessary to see this bill through – and in Kenya, its always possible.