By Guest Contributor Winfred Wanjiku Gitonga – International Human Rights Commission Ambassador-at-Large (Kenya)
“Because what we are doing today, we are doing for Generations” Sir Rafal Marcin IHRC
In the wake of President Uhuru Kenyatta’s administration working to lay the ground for the Big Four Agendas development projects of affordable housing, manufacturing, universal healthcare and food security that the President hopes will shape his legacy, reports of multi-billion-shilling corruption scandals that could undermine his Jubilee administration’s four pillars of growth have turned the spotlight on his administration as it’s bombarded by unresolved complex scandals.
According to Auditor General Edward Oukorevelation on performance audit, the following unresolved scandals involving billions of shillings in public coffers money are standing out;-
- The Irregular Lamu Coal project award where a company that did not submit a proposal was awarded a tender (Ksh.475billion);
- The State Pension Fund losing (Ksh6.8billion) through inflated costs for the construction of Hazina Towers,
- The (Ksh55.6billion) irregular tendering for Jomo Kenyatta International Airport’s new terminal through the Kenya Airports Authority,
- The single-sourced (Ksh15billion) police CCTV system;
- The National Youth Service (Khs.8.8billion) scandal;
- The National Cereals And Produce Board Maize Scandal (Ksh1.9billion);
- The Lang’ata Road Primary School land grabbing attempt;
- The NSSF Tassia project (Sh5billion);
- The Afya House scandal procurement malpractices that exploded at Afya House of some 100 mobile container clinics worth (Sh800 million);
- The ‘Chickengate’, IEBC Scandal in which (Ksh50million) was paid to election officials as kickbacks;
- The Youth Enterprise Fund had a (Ksh80 million) scam in 2015 while this year, seven officials were suspended after they were implicated in the second scandal involving the fund (Ksh10million);
- The Standard Gauge Railway (Ksh.314.2billion);
- The National Lands Commission Scandal where in conjunction with others attempted to grab of Karen (Ksh.8billion) 134.4 Acres that involved 40 members of Parliament and another (Ksh.1.5billion) Ruaraka Land Scandal;
- The Kenya Ports Authority (KPA) ongoing probe (Ksh40billion) Kipevu oil terminal tender given to a Chinese firm blacklisted by the World Bank;
- The Directorate of Criminal Investigations (DCI) is investigating allegations of fraud involving about (Ksh150billion) in the Kenya Power in regard to the billing system (Postpaid) where the funds were lost as a result of conspiracy between some Kenya Power staff, brokers and customers linked to cybercrime;
- The National Treasury Scandal on Arrow and Kimwarer Dam Project Scandal many among others.
- In what could turn out to be another mega-scandal in the Jubilee government, the State paid out (Ksh67.9billion) as pension to people who were not entitled to receive the cash, and others whose identities could not be verified.
The Treasury, without explanation paid Sh1.6billion to 962 people before their exit dates from public service even as thousands of workers who retired years earlier languished at home waiting for the processing of their retirement benefits.
Other workers, whose terms of employment were not permanent and pensionable, pocketed (Ksh492million) without any valid reasons being offered.In another case, 349 people were irregularly enrolled in the pension system and paid (Ksh556 million).
The largest chunk of the money (Sh44billion) was paid to claimants with irregular identities or who lacked personal identification numbers. Another Sh21 billion was bizarrely paid out to claimants with shared bank accounts while Sh152 million was wired to people with shared identity card numbers.
Auditor General Edward Ouko says these irregularities are to blame for many beneficiaries waiting for long to get paid and genuine claimants languishing in poverty after missing out on the payments. The audit conducted covered the period between the 2012/2013 and 2016/2017 financial years. “The Sh67.9 billion was paid to 114,215 claimants, which is an average of Sh594,267 per claimant,” reads the performance audit on the administration of public service pension scheme.
In many jurisdictions, the cabinet minister responsible for finance is so revered that a mere statement from him, leave alone an arrest, can change the fortunes of an economy. In Kenya, this is the person who negotiates and signs international financing contracts for the government. He is the face of the country to many of international friends and development partners.
Locally, he is the person who regularly makes decisions on when and who will be funded and for how much, which ministry, department or even a specific contractor is to be supported financially and otherwise. With no sacred cows in the war against corruption and graft, it’s no wonder; all international news broadcasts including CNN and BBC carried the story as breaking news when Treasury Cabinet Secretary Henry Rotich was arrested and charged over Arrow and Kimwarer Dams Project Scandal. Rotich is facing corruption charges along with his permanent secretary Kamau Thugge and 26 officials of the project host Kerio Vally Development Authority (KVDA).
The arraignment of the Governor Ferdinand Waititu of Kiambu, President Uhuru’s home County, with a retinue of contractors the County awarded tenders for road construction that gave him kickbacks, confirmed the President’s resolve to fight corruption. Waititu was arraigned along with his wife Susan Ndungu. The two were charged with corruption over an irregular tender worth Sh588 million, in which they are accused of having received kickbacks through their company Saika Two Estate Developers Limited. They were charged alongside directors of Testimony Enterprises Limited—Charles Chege and Beth Wangeci—which was contracted by the country to upgrade roads.
For decades government critics argued that there was no political will to fight corruption but President Kenyatta has shown great courage in his bid to wipe out corruption from the face of Kenya but corruption is busy fighting back as even as the President sets out to slay the corruption dragon. The President may be aware that when fighting corruption the perpetrators do not take it lying down.
The graft suspects and their accomplices are busy muddying the waters in an effort to force off-track the national enthusiasm on ending the scourge.The numbers of persons under investigation for various unearthed scandals comprise powerful figures in the government public service. Corrupt public officials therefore not only raise integrity questions but also hinder the public from benefiting from public service entitled to them.
The suspect officials are working overtimeto derail the investigations with the intention of defeating justice and secure their victory.Corruption at all levels of all societies is a behavioral consequence of power, greed and demonstration of moral decay. With no rulebook, corruption is covert, opportunistic, repetitive and powerful, reliant upon dominance, fear and unspoken codes. It’s a significant component of the ‘quiet violence’. Corruption diverts resources from the poor to the rich, leads to a culture of bribes and distorts public expenditures deterring foreign investors and hampering economic growth.
The Public Procurement and Disposal Act prohibit corruption in public procurement. The Public Service Commission Act has a Code of Regulations for civil servants that require meritocratic recruitment and promotion of public officials; it also enshrines their political independence.However, all that is overlooked and violated by many.
In Kenya, The Public Officer Ethics Act of 2003 defines a public officer to mean; Any officer, employee or member, including an unpaid, part-time or temporary officer, employee or member, of any of the following—(a) the Government or any department, service or undertaking of the Government; (b) the National Assembly or the Parliamentary Service; (c) a local authority; (d) any corporation, council, board, committee or other body which has power to act under and for the purposes of any written law relating to local government, public health or undertakings of public utility or otherwise to administer funds belonging to or granted by the Government or money raised by rates, taxes or charges in pursuance of any such law;(e) a co-operative society established under the Cooperative Societies Act; (f) a public university; (g) any other body prescribed by regulation for the purposes of this paragraph.
The UN General Assembly’s Agenda 2030 for sustainable development of 2015 asked all states to ‘substantially reduce corruption and bribery in all their forms’ and to return all stolen assets by 2030. In their official contributions to this Agenda, the Human Rights Treaty Bodies have ‘identified mismanagement of resources and corruption as obstacles to the allocation of resources to promote equal rights’.
The relationship between corruption, poverty and human rights has for long been neglected and only started generating interest by developing states recently. To best understand this, one has to assess the impact of corruption on human rights in the context of human rights instruments in the economic, political and social spheres.
- Corruption is a key obstacle to inclusive economic growth as it is inverselytied to economic performance. The higher the rates of corruption in a country, the lower its economic performance will be and vice versa.
- Corruption has for long posed a very serious threat to a country’s self-determination and it now a fact that corruption is a key enabler to poverty and threat realization of human rights.
- Every democratic state has three mandatory obligations that they need to perform to combat corruption in their bid to protect human rights namely the obligation to ‘respect’, ‘protect’ and to ‘fulfill’ human rights.
- The only way that the full realization and enjoyment of human rights would occur is through combating corruption – among other enabling threats.
Inclusive economic growth doesn’t stop at just expanding national economies; it goes further to ensure that the most vulnerable people in society are reached and that they also enjoy the benefits of growth. Corruption prevents this from happening, as monies meant for developing these groups are siphoned by the elite in high public offices. Vulnerable citizens, including women, children and people living with disabilities (PLWDs) are affected more by corruption because they usually depend more on public goods and have less access to private alternatives than the non-vulnerable population.
Kenya’s economic competitiveness is held back by high rampant public service corruption levels that penetrate every sector of the economy.High levels of corruption are detrimental to human rights application in a country in that they hinder the state from fully discharging its duty and mandate to uphold, protect fulfill and respect the human rights of its citizens.Corruption exploits are mainly initiated, carried on and generally orchestrated by ‘the big men’ in the society.
The big men are people entrusted in high positions of power and trust, which mostly include those in the public institutions and the private sector to a certain extent. A good example of these people, in Kenya, include the politicians who are currently in court to answer corruption charges including civil servants, tenderpreneurs, tycoons, members of the judiciary, non-governmental organizations and other organizations comprising of members of the developed countries.
By enacting the Whistleblower Protection Bill Kenya was key in assuring the public that their safety is guaranteed if they report corruption.However, the Witness Protection Agency is underfunded and doubts about its independence exist (HRR 2016). Kenya has ratified the African Union Convention on Preventing and Combating Corruption and the United Nations Convention against Corruption (UNCAC). The Anti-Corruption and Economic Crimes Act and the Witness Protection Act provides for protection of whistleblowers and forbids any disciplinary action to be taken against any private or public employee who assists an investigation or discloses information for such an investigation.
States should ensure that every member of the public institutions be subjected to a vetting process with an aim of looking into the any kind of allegations of misconduct in his past. Kenya, for instance, has come up with an array of provisions in a bid to impede corrupt officials from assuming public office positions such as Chapter 6 of the Constitution on Leadership and Integrity that stipulates that any public official should act in a way that avoids personal conflict and their official duties.
On the contrary, in many developing nations, Kenya being a good example, leaders are rarely elected based on their performance credentials in public service, but rather on the depth of their pockets. From the buying of votes to the hiring of goons to intimidate political opponents while the law enforcement officials look the other way or are challenged in their efforts while trying to mitigate harm and injury.
An audit by citizens is the only way they can make their country corruption free and the only way they can vote for candidates on account of their accountability and not the tribe of their candidates. The time has come when citizens must all awake and realise that performance audits should be the basis upon which they vote other than the beauty of the grease of the bribe money, song and dance that come during campaign time.
President Kenyatta’s fight against corruption will be audited as his legacy as for indeed citizens can count whether there is more accountability in government. Citizens can count how much of the “Big Four Agenda” has been achieved though reasonable citizens would understand if by 2022 the ‘big four’ of the Presidents legacy is not fully achieved.
Signs of paralysis and collapse before 2022 are showing with the current trend of massive plunder, raw theft and corruption running into billions as the saboteurs of the big four answer to a system of impunity from the county governments to the national treasury. They have the opportunity, motive and means to undermine the ambitious big four development agenda but there would be no excuse if the war on corruption is not won.
Corruption has been a major cause of the poor leadership standards that bedevil most developing nations. Recently in Kenya, the last parliament took upon itself to water down the provisions of the law that were deemed as being too stringent, since the standards of integrity set therein locked out most if not all of the members of the political class from running for office. Politicians use their political clout to corrupt their way into lucrative deals, which in turn makes it very easy for them to apply corrupt means to stay on in power. In this way, corruption hinders the realization of human rights in the political sphere, since it creates a class of people who operate above the law thus nurturing a culture of impunity.
The Kenyan constitution in its preamble as well as Chapter one provides that sovereign power belongs to the people of Kenya and should be exercised according to the constitution. Transparency and accountability in the political system suggests that states should enact laws that mainly protect peoples’ right of choice, right of expression, ensure that the public is afforded the right to participate and have a say in all the decisions made by the government.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) imposes obligations on State parties to promote various human rights. In a country where corruption is rampant, the discharge of this mandate is hindered in various ways. Articles 11, 12 and 13 of the ICESCR and Article 43 of the Constitution of Kenya provide for a number of rights that can be termed as economic rights.
These rights include but are not limited to; the right to adequate housing, adequate food, a reasonable standard of healthcare, education, reasonable standards of sanitation and access to clean water, to name but a few. In the promotion of the right to education, corruption has been a hindrance to the effective discharge of the State’s mandate towards its citizens in Kenya.
Misuse of public funds, especially in relation to Free Primary Education by government officials has deprived countless children from achieving the full realization of the right to education. In bursary disbursements, corruption and nepotism denies the neediest of cases from benefitting from the subsidy, but instead favours the politically connected and those in a position to pay bribes. This applies in the delivery of services to realize all the other rights provided under Article 43 of the Constitution of Kenya.
The other aspect of economic rights is the right to employment, to join a trade union, reasonable remuneration and working conditions and the right to strike. The ICESCR provides for these rights under Articles 7, 8 and 9 while the Constitution of Kenya provides for the same under Article 41. Corruption has been used to subvert the law and infringe on these rights in many ways. This is done by the relevant authorities turning a blind eye to unfair labour practices and complaints from workers for a bribe to the corruption of workers union officials during remuneration negotiations, corruption has entrenched itself as an impediment to the promotion and effective application of human rights in the economic sphere.
A successful fight against corruption will only be achievable if corruption is taken as a unified national and international problem rather than an individual quest. Consequently, a comprehensive response to corruption entails competent institutions, good governance, appropriate legislations and involvement of the oversight stakeholders in the public and private sectors. The fight on corruption calls for a complete transformation of the governmental institutions as well as the society in whole. For these reasons therefore, elements such as an independent judiciary, civic rights like freedom of the press, freedom of expression, transparency in the political system and accountability must be present in any anti-corruption strategy.
With several jurisdictions across the world implementing the confiscation, seizure and freeze measures within their legislations (often under the influence of international and supranational legal instruments), the emergence of confiscation as an instrument to recover instrumentalities and proceeds of crime has grown to become a global phenomenon. Arguably, the priority given to the introduction of reforms of confiscation regimes is part of a wider policy trend inspired by a ‘follow-the-money’ approach to crime.
The benefits of deprivation, neutralization of criminal profits by confiscation of illicit money and ‘dirty money’, crime instruments and proceeds have been widely emphasized (punitive, preventive, reparative, etc.), and nowadays confiscation of proceeds is becoming one of the main objectives when dealing with economic organised crime and other serious offences, including corruption.
World Summit and the 2010 high-level plenary meeting of the General Assembly on the Millennium Development Goals urged member states to make the fight against corruption a priority at all levels and to curb the illicit transfer of funds, and urging all States to step up their efforts to trace, freeze and recover those funds
The traditional concept of confiscation demands the deprivation of property (crime instrumentalities and proceeds), follows a conviction for a specific crime, the new forms of confiscation provide for a loosened link between offences and confiscated proceeds. Assets may be confiscated even if they are not proceeds of the crime for which the offender has been convicted (extended confiscation), if they belong to persons other than the offender (third party confiscation),or if they are the proceeds of an offence which has not been proven at trial (non-conviction based confiscation);in some cases, even if criminal proceedings against the suspect have not started at all (civil asset forfeiture).
In all these cases, the fact that a previous fully-fledged assessment of the criminal conduct, and of the link with the assets, is not a decisive factor to apply a confiscation measure raises several questions as regards the general objectives of criminal justice systems and the balance between effectiveness and human rights.
Corruption in Kenya can be slain once as the Presidency has the power to rescue his motherland from the claws of state thieves. If nothing else, it will be his legacy. In Kenya now every Kenyan except beneficiaries of graft, wants the fight against corruption to succeed. Citizens are asking to be involved to participate in audits in order to be well and more informed. They have paid too heavy a price for the many years the monster of corruption was allowed to grow. There will be no sacred cows in this war.
As a clarion call, owing to the massive corruption in Kenya today, the concerted stakeholder efforts of International and National Human Right Commissions, organizations, oversight authorities and anti-corruption agencies whatever their jurisdictions must collaborate to hold the Kenyan governing apparatus accountable in promotion and protection of human fundamental human rights and freedoms for everyone in Kenya by playing both a watchdog and advisory role with a vision of a society that upholds human rights for all.
The earth produces enough to meet every man’s need but not every man’s greed.’ Mahatma Gandhi (1869-1948)