By Ben Christopher Nyabira
That Kenya is among the most corrupt countries in the world is a fact. According to the 2019 Transparency International’s global corruption perception index, Kenya scored 28 percent, ranking it 137 out of the 180 countries and territories assessed. This is below the global and sub Saharan averages of 43 and 32, respectively.
Since 2012, Kenya has scored between 25 and 28 percent, which indicates slow progress in the fight against corruption despite the concerted efforts and institutional structures.
To provide for prevention, investigation, and punishment of corruption, economic crimes and related offences, Kenya, in the year 2003, enacted the Anti-Corruption and Economic Crimes Act (ACECA). In 2010, it promulgated a new constitution, which sought to address past governance ills, including corruption.
One of the Constitution’s key features to address these is the inclusion and emphasis on public participation as part of the principles and values of governance.
The Constitution states: “the people may exercise their sovereign power either directly or through their democratically elected representatives.“
It further emphasizes participation of the people in the exercise of the powers of the State and in making decisions that affect them, as among the objectives of devolution. However, the question is: can public participation play a role in fighting corruption?
Nature of corruption in Kenya
Corruption is commonly defined as the misuse of public power for private benefit. ACECA defines corruption as an offence relating to bid-rigging, improper benefits to trustees for appointments, conflict of interest, deceiving principal, secret advice for inducement, abuse of office, and dealing with suspect property. Also included are bribery, fraud, embezzlement, and misappropriation of public funds, breach of trust, and an offence involving dishonesty.
A 2015 survey by the Ethics and Anti- Corruption Commission (EACC) found bribery as the most prevalent form of corruption in Kenya (64.7%), followed by favouritism at 8.8%, and embezzlement of public funds at 5.8%. Others were abuse of office, fraud, delayed service provision, misappropriation of public funds, bid-rigging, extortion, misuse of property, shoddy implementation of projects, tax evasion and procurement irregularities.
Majority of respondents (62.6%) also felt that greed was the main driver of corruption in the public service. Other reasons included poor remuneration, bad governance, and unprofessionalism. Ignorance on consequences of corruption, inadequate resources, ethnicity and partial enforcement of the law were also factors contributing to corruption in public service.
On the effectiveness of various strategies in the fight against corruption, most respondents apportioned the greatest responsibility to political leaders who side with one of their own when implicated in corruption and the ethnicization of corruption in Kenya.
Further, the respondents identified the leading causes of corruption as political patronage (23.6%), fear of victimization of witnesses and whistle-blowers (18.3%), and culture of corruption among Kenyans (17.3%). Others were entrenched negative tribalism (15.1%), corrupt anti-corruption agencies and officers (11.7%), and ignorance of the law among citizens due to illiteracy at 10.4%.
Recommending ways to reduce corruption, 40.6% suggested prosecution of all corrupt individuals, while 22.3% highlighted raising public awareness through education, and 19.1% suggested adherence to the law by citizens. 16.4% proposed regular vetting of all public officers.
Understanding the how of corruption
The survey showed that corruption in Kenya is mostly individual to individual through bribe or extortion, misuse or stealing of public funds, favouritism including in the procurement process, and poor service delivery. People engage in corruption because of greed, ethnicity, inadequate knowledge of the consequences of corruption, and poor remuneration.
The challenges in the fight against corruption are public related and include fear of victimization by whistle-blowers, the culture of corruption, and ignorance of the law. Public officers related challenges include corrupt officers, negative tribalism, and political patronage. Further, political leaders who side with one of their own when implicated in corruption and the ethnicization of corruption were the most likely hindrances in the fight against corruption.
Lastly, recommendations on reducing corruption include prosecution of all corrupt individuals, raising public awareness through education, and regular vetting of all public officers.
On the other hand, according to the specific incidents of corruption prosecuted in court, public officers threatened to withhold services or cancel a procurement decision unless bribed. In other incidents, senior public officers either conspired to privately benefit based on their positions in public service by forging invoices and failing to protect public resources by paying for services not rendered, fraudulently acquiring public property, and implementing projects without prior planning.
Specific cases of corruption prosecuted in Kenyan courts
An understanding of nature or circumstances under which specific incidents of corruption occur can inform appropriate measures to help prevent or respond to future similar incidents of corruption.
Several corruption cases are prosecuted in the Kenyan courts every day. However, since most corruption cases start at the Magistrate courts whose judgments are not readily available at Kenya Law (http://kenyalaw.org/caselaw/), such information can be extracted from appeals at the High Court, that gives where some background information about the cases. A quick Internet search of judgments of corruption cases in Kenya results in many such judgments.
Bribery related cases
In 2014, for example, two EACC procurement officers were accused of soliciting and receiving a benefit. The EACC had issued three local purchase orders (LPOs) to one of its prequalified firms to supply cameras. The two officers, however, solicited a benefit of Kshs. 50,000 as an inducement not to cancel the LPO. They also received a benefit of Kshs. 28,000 as an inducement to prevent the prequalified company from disqualification on the list of pre-qualifications for the Commission.
In another corruption case, an employee of the Kenya Power and Lighting Company (KPLC) was convicted for soliciting a bribe to facilitate power re-connection to a KPLC client. His appeal was dismissed. Similarly, a clerical officer in the Ministry of Interior and National Government Coordination requested and received a benefit of Kshs. 2,500 as an inducement to facilitate the processing of a birth certificate. The accused was found guilty.
Conflict of interest and other related cases
On 22nd June 2020, John Koyi Waluke, Sarapay Wakhungu and Erad General Supplies and Contracts Ltd, were convicted of various corruption offences, including conspiring to steal public property. They were accused of presenting forged invoices to demand payment for loss of profits and interest incurred after a tender to supply maize to the State was cancelled. Both are listed as directors of Erad General Suppliers, the firm that received the payment. They were found guilty and convicted of offences including, uttering false documents, fraudulent acquisition of public property, and giving false evidence. They appealed the decision and were released on bail after three months in prison.
In another case, the former Kiambu county Governor, Ferdinand Waititu was charged with various corruption offences, which included conflict of interest – indirect private interest- for receiving approximately Kshs. 25 million for contracts awarded to a company associated with him, by the Kiambu county government. Other charges included dealing with suspect property and his family members, and property suspected to have been acquired from Kiambu county government through corrupt conduct. The case is still on going.
Similarly, Busia county Governor Sospeter Odeke Ojaamong and eight others were charged with conspiracy to commit an offence of economic crime, engaging in a project without prior planning, fraudulent payments from public revenue for services not rendered, and fraudulent acquisition of public property. The case was temporarily suspended in October 2020.
These are few examples of high profile graft cases, but how can the public be engaged in fighting corruption?
Engaging public participation
Public participation as used in the Constitution of Kenya 2010 includes, mainly, direct public involvement instead of just participation through elected representatives. The constitution review process that culminated in the promulgation of the Constitution of Kenya 2010 started with enacting the Constitution of Kenya Review Commission Act of 1997.
The Act states one of the objectives and purpose of constitutional review as: “promoting the people’s participation in the governance of the country through democratic, free and fair elections and the devolution and exercise of power and ensuring the full participation of people in the management of public affairs”.
Therefore, the transformative nature of the Constitution of Kenya 2010 involves not just choosing representatives and greater power through devolution but also direct participation of the people in public affairs.
Literature has defined public participation to include several elements. In A ladder of citizen participation AIP Journal July 1969 p 216, SR Arnstein describes public participation as the situation where citizens have a genuine opportunity to affect outcomes.
On her part, Waterhouse, in her unpublished Master’s dissertation, People’s Parliament? An assessment of public participation in South Africa’s legislatures argues that public participation should include the transformation of power relations and empowerment of people who participate.
She further argues that leaders in a representative democracy have failed to be responsive enough, thus the need for deliberative democracy to help empower the citizenry to participate. Additionally, participatory or deliberative democracy ‘can only be fostered if the cultural bedrock already favours consultation, debate and participation in collective decision making’, which points at the need for cultural change to achieve effective public participation.
Judicial interpretation of public participation
The Kenyan courts have, in several instances, interpreted public participation as provided for in the Kenyan law, included the need to focus on the extent of involvement of the people in the whole process of an activity: coverage of the participation in reaching relevant stakeholders, and whether people’s views are considered.
In the case of Moses Munyendo & 908 Others v Attorney General and Another (2013) eKLR para 18, the court relied on the Law Society of Kenya v Attorney General Nairobi petition No. 318 of 2012  eKLR para 51, in which it was held that,
“In order to determine whether there has been public participation, the court is required to interrogate the entire process leading to the enactment of the legislation; from the formulation of the legislation to the process of enactment of the statute.”
Similarly, the court relied on South Africa’s minister of health case in which the court said that, “What matters is that at the end of the day a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say”.
The court also relied on another South African case, Doctors for Life International vs. Speaker of the National Assembly and Others, where the court said,
“…because of its (public participation) open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.”
Public participation, which means direct participation, involves several elements that can play a role in fighting corruption. The features include an opportunity to affect outcomes, transformation of power relations (most important to the disempowered), cultural change in favour of collective decision-making, participation in the whole process of an activity, open and public process for stakeholders to know the issues and have an adequate say.
People having an opportunity to affect outcomes
One characteristic of public participation is that it should offer the public a chance to affect outcomes. Public participation, therefore, should influence the outcome of public decisions. Corruption is about how public decisions are made and their outcome. The survey and the corruption incidents discussed above shows that many corruption incidents take place in secrecy.
The bribes usually take place in secrecy. Public officers like county governors failing to protect public resources by, for example, paying for services not rendered, acquiring public property for themselves and their friends, and implementing projects without prior planning.
Ensuring that people’s participation in the decision-making process and ensuring that their involvement affects outcomes would reduce the secrecy under which bribery takes place, and ensure that people know how public resources are allocated and thus reduce corruption taking place.
Further, public participation would ensure that those in leadership implement planned projects, hence avoiding the implementation of unplanned initiatives. By allowing the people to affect the outcomes, public participation can reduce incidents of corruption.
Transformation of power relations
Another element of public participation is the ability to transform power relations. The survey and the specific incidents of corruption assessed by the author indicate that several corruption incidents occur because of power disparities involved.
For example, in one of the cases cited by the author, the public officers at the EACC threatened a prequalified company with deleting them from the list of prequalified companies because they felt that they were doing the company a favour and that the company was helpless.
This speaks into power relations involved where one party, the public officers, feel more powerful, and the company is inferior. Public participation includes ensuring that the public officers and the people they serve – including the private companies that bid to do business with the government, have a voice to demand a fair decision-making process.
Transformation of power relations would also help ensure no favouritism, which is one of the fault lines that perpetuate corruption. With favouritism at play, corrupt public officers find a loophole to convince people around them that they need to benefit and not the others.
Public participation, therefore, helps to eliminate the power differences and thus the ability of corrupt public officers to seek bribe to facilitate what the intended recipients deserve, and the ability to help create conditions for corruption through favouritism.
Cultural change in favour of collective decision making
Further, effective public participation includes a culture change in favour of collaborative decision-making. A situation where one public officer can threaten to remove a prequalified company from a list that they got placed in by going through a process shows lack of a culture of collective decision making.
Ethnicization of decision-making, fear of victimization by whistle-blowers, and political patronage indicate lack of collective decision-making culture, which creates conditions for corruption.
Public participation that includes a culture change in favour of collective decision-making, therefore, would contribute to an unconducive environment for corruption. Indeed, a collaborative decision-making culture would be infertile ground for greedy officers hence would discourage corruption.
Participation in the whole process of an activity
Further, effective public participation includes an opportunity for the public to participate in an activity’s entire process. Many people’s involvement ensures that there are no loopholes for corrupt officials to solicit for a bribe or seek to privately benefit from public resources at some stages of the process.
For example, this includes at the procurement process, which would need to be open to the public, and the public would need to be informed on the criteria for selecting successful bids and the outcome of the selection process. Further, in cases where pre-qualification of service providers are done, removing some from the list would also be part of the process that would need public participation. If similar steps are taken in all public decisions, incidents of corruption will reduce.
Open and public process for stakeholders to know the issues and have adequate say
Lastly, another important element of public participation is the requirement that processes be open and public for stakeholders to understand the issues and have a fair voice. Corruption occurs when people do not know if property pieces are public or privately owned, where people do not know procurement processes (ignorance that corrupt officials may take advantage of) or where people do not know the quality of public services they deserve.
Further, suppose the people do not know where their interests lie, they are susceptible to divisive politics and favouritism in public service delivery, which are corruption and a basis for further corruption.
The survey established that the best strategy of fighting corruption is through actions that would discourage political leaders from siding with one of their own when implicated in corruption, which discourages ethnicization of corruption.
Public participation that would ensure processes are open and public to stakeholders (the public is a stakeholder in public initiatives), and that they know the issues and have a say in, is key to fighting corruption.
Corruption thrives in secrecy, coupled with greed by officials and public members, ignorance by members of the public about their rights, exclusion tendencies by people in positions of authority, among other reasons.
Public participation can help address the above factors that encourage corruption. However, for public participation to play a role in the fight against corruption, it must be sufficient public participation.
Sufficient public participation ensures that people have an opportunity to affect outcomes, transformation of power relations to bring about equity, a cultural change in favour of collective decision-making, participation in the whole process, and openness/transparency and public for stakeholders to know the issues and have adequate say.
Mr. Nyabira is a Programmes Manager at Katiba Institute and a doctoral candidate at the University of Pretoria.