Tuesday, October 18, 2016

Just enforce the law

Three years ago, I advised you that to win the war on graft was simple in theory but hairy in practice. I advised you to simply enforce the laws we have on the books. I warned you that if you made Uhuru Kenyatta, President and Commander-in-Chief of the Defence Forces of Kenya, the anti-corruption warrior-in-chief, then the war against graft would be lost before the first shot was fired. I almost thought that I was wrong in the wake of the President's anti-corruption list of shame which he presented at the 2015 State of the Nation Address to a Joint Sitting of Parliament. As the State House Summit on Governance winds to a close, I offer my advice afresh: simply enforce the law that you have on the books.

Anti-corruption, in theory, can be tackled through the Anti-corruption and Economic Crimes Act, the Public Audit Act, the Public Procurement and Asset Disposal Act, the Leadership and Integrity Act, the Ethics and Anti-corruption Act, the Public Service Commission Act, the Commission on Administrative Justice Act and the Penal Code, the National Police Service Act and the Independent Policing Oversight Authority Act as well as the Banking Act, the Capital Markets Authority Act, the Income Tax Act and the Tax Procedures Act. The anti-corruption challenges we face have little to do with the legislative or institutional framework and everything to do with the enforcement or administration of the laws we have on our books and the men and women we have entrusted with the authority to administer or enforce the law.

Corruption remains one of the principal reasons why the legitimacy of the government is in doubt. Whenever agents of the Executive are caught up in corrupt acts, grand and small, the exhortations of the Head of Government are taken as the "wink, wink" of an insider covering his butt by saying what the people want to hear. When judicial officers preside over the "disappearance" of files, which reappear at the production of a facilitation fee, the Chief Justice's declaration that Kenya is a bandit economy ring just a little bit hollow. When parliamentarians establish private companies in order to "win tenders" overseen by members of the Executive whom the parliamentarians are supposed to hold to account, the enquiries televised from parliamentary committees' chambers expose the lie that the people's representatives have the people's fiscal interests at heart.

A State House summit on governance will not address the legitimacy deficit. It has been three-and-a-half years since we elected the President and he formed his government. In three years one of the most profound revelations, for which little comment has been made, is that of multi-millionaire policemen for whom even the rudiments of legitimate paper trails escape them. We have witnessed the conflicts of interest among members of the Cabinet caught up in billion-shillings tenders-gone-awry. Judges have been accused of shamelessly soliciting bribes for favourable decisions. No arm of government has been spared and the higher the ranks one goes, the more putrid the stench from all the "eating" going on.

State House can address the deficit in its legitimacy by protecting those entrusted to administer or enforce the law from political interference which has proven to be quite resilient. If a person wins their public office partly because the appointment is a calculated political or ethnic reward, the merits of the appointee's qualifications will not matter and their acts of omission and commission will almost always betray motivations other than the law. The law enforcement apparatus of this nation is riddled with cases of high appointments whose main justifications were political and ethnic balancing. These are not appointees who have the will to do their duty without fear or favour. These are appointees who are politically protected not because of their good work but because of the political fallout if they are not. Unless that calculus changes, summits and parliamentary addresses are all that the President will have to show for his fight against corruption. No more.

No comments: