Tough Measures to Stem out Corruption in Kenya

International Center for Policy and Conflict (ICPC) notes that corruption is holding Kenya back and undermining the country’s future. ICPC is deeply appalled by incompetence, unwillingness and compromised nature of Kenya Parliament in decisively tackling theft of Kenya tax payers’ money. It has miserably failed in its core mandate of oversight. It is thoroughly enmeshed in conflict of interest. Parliament should set an example of integrity.

It must hold the government accountable for all its actions, including the use of public money and the work of officials

We observe that former Governance and Ethics Permanent Secretary John Githongo investigated and found Anglo Leasing theft and cover up was done at the highest level of government with key people at top echelons of power were making the decisions. He further revealed that government was getting into contract with firms that had dubious provenance. This was injurious to the country and the public. Mr. Githongo who fled to United Kingdom fearing for his life in 2005 after blowing the whistle on Anglo Leasing, said “It [Anglo Leasing] has been difficult to crack because it involves the ruling elite, pure and simple. Successful comprehensive prosecution is suicidal politically.” Mr Githongo further said that he met repeated resistance from certain government ministers when he attempted to investigate suspect contracts.

In order to win war on graft and fraud in government, Kenyans must fight for new rules to make politicians more ethical, transparent and accountable, especially illegal campaign contributions, and to reduce the incentives for corrupt payoffs. Deterring politicians from receiving kickbacks is critical step in stemming out corruption. Further, they (Kenyans) need push back against interests of the influence of powerful economic actors and their political benefactors in order to safeguard the public interest. There is to be painful political decisions to be made in order to stem corruption conclusively.

Kenya needs tough political resolve, and robust institutionalised and consolidated comprehensive regime of laws, enforcement, and strict integrity of the Government, the system and the men and women in charge to succeed in theft and graft in public service. Apart from lifestyle audit of all state/public officials ( elected and appointed), they must be fully barred from doing business with government whether direct or indirect. This must be legislated immediately.

The country must adopt tough measures that should improve deterring theft of tax payers’ money, abuse of office and corrupt practices in public service. The measures must eliminate some of the practices such as illegal campaign contributions to politicians who, if elected, are expected to reciprocate by awarding government contracts. The measures must speed up criminal proceedings, ensure the confidentiality of whistleblowers, extend the statute of limitations and enhance asset confiscation capabilities.

The country must enforce criminalization of illicit enrichment of public officials. The measure but not only criminalizes but ensure harsh incarceration and confiscation of assets, situations in which the public employee has funds or assets that are not compatible with his or her income as public employee or other licit sources. This measure seeks to ensure that the public official does not escape liability when it is not possible to prove that specific acts of corruption were committed by the official. The idea is that, in situations where it is not possible to prove the crime of corruption, the fact that the public official acquired considerable wealth, absolutely incompatible with his or her income and not supported by reasonable licit sources, can lead to accountability.

Also there is need for increased sanctions for corruption cases. The crime of corruption in Kenya is currently very lenient. It must be enhanced depending on the amount of bribes paid or losses suffered by Kenyans and sanctions would be increased substantially

There has to be increased efficiency and justice of appeals in the criminal cases. Judiciary need to institute in criminal proceedings. It is common for cases involving white-collar crimes to take longer in the appellate courts” and in some cases “defense attorneys used delaying strategies – successive motions for stays and other objections”. The proposed measures seek to change criminal proceedings to speed up the process. Among other things, there should be possibility of immediate execution of the sentence when the Court recognizes the abusive exercise of the right to appeal or when a verdict has been upheld on merit at the Court of Appeals, even if appeals are pending before the Supreme Court.

Finally there is need for celerity in improbity cases. There must be established sanctions to public agents for acts of administrative improbity e.g., fraud or improper waiver of public tender and other similar situations. Although primarily directed to public agents, private companies and individuals might also be subjected to such law. Main sanctions include fines, debarment, and prohibition from receiving tax benefits. There need to set new procedural rules to speed up such proceedings and also requires the creation of specialized courts for this kind of proceeding.

Summary of needed changes to tackle theft of Kenya tax payers money include:
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1. CORRUPTION PREVENTION, TRANSPARENCY, AND INFORMATION SOURCE PROTECTION
– Create accountability rules for Juridical Branch and Public Prosecutors related to improbity (dishonesty) and criminal acts.
– Implement integrity tests.
– Apply publicity percentages for actions and programs aimed to corruption combat.
– Provide bigger protection to the source who gave cause to the investigation related to the corruption acts.

– All public officials whether elected and or appointed must be barred from doing business directly or indirectly, including their spouses, with government with heavy penalties on default.

– There has to be full disclosures of all government transactions. They must be published and publicized before their agreements and commencements

– All companies doing business with government must be fully vetted, their directorship made public and heavy penalties imposed on failure

2. CRIMINALIZATION OF UNLAWFUL ENRICHMENT OF PUBLIC AGENTS
– Add an article to the Criminal Code, making it a crime the unlawful enrichment of public agents, punishable with minimum sentence of 8 years.

3. INCREASE ON PENALTIES AND TURN HIGHER VALUES CORRUPTION INTO HEINOUS CRIME
– Increase penalties for corruption cases
– Turn higher values corruption into heinous crime.

4. EFFICIENCY ON LAW PROSECUTION APPEALS
– Bargain for the final judgment when the appeal aims only to protract the process or the appealing right have been misused.
– Change the rules for presenting counterarguments in second instance, revocation of infringing embargoes, extinction of reporter vote revision on appeal judgments, change rules for clarification requests, extraordinary appeals, and habeas corpus in several legal provisions.
– Make possible the provisional execution of the sentence after the superior instance judgment.

5. CELERITY ON ADMINISTRATIVE DISHONESTY ACTIONS
– Remove preliminary phase of administrative dishonesty actions, and bargain for retained grievance against the decision that receives the action.
– Create specialized Groups, Chambers, and Staff on Judicial Branch.
– Institute the leniency agreement regarding administrative dishonesty.

6. REFORM ON CRIMINAL PRESCRIPTION SYSTEM
– Adjust prescription system to avoid impunity in cases wherein there is not party inaction.

7. ADJUST IN CRIMINAL NULLITY
– Restrict prosecution nullity to cases wherein they are needed.
– Introduce costs and benefits balances in a process annulment.

8. RENDER LIABILITY TO POLITICAL PARTIES AND CRIMINALIZATION OF SLUSH FUND
– Create objective liability of political parties due to slush fund, and money laundry.
– Criminalize slush funds in political campaigns, including candidates.

9. PREVENTIVE PRISON TO ASSURE THE RETURN OF DEVIATED MONEY
– Bargain for preventive prison to avoid waste of deviated money.
– Establish a fine for the noncompliance of judicial order related to bank and fiscal secrecy breach.

10. RECOVER PROFIT ARISING FROM CRIME
– Enable extended confiscation.
– Discipline civilian action of domain extension.