To break cycle of graft, costs must outweigh gains

I am a partner in the Washington DC office of a US law firm. I serve as head of the Anti-Corruption Practice Group.

While it may appear strange to have lawyers specialising in anti-corruption, the US Foreign Corrupt Practices Act, which criminalises the bribery of foreign government officials or employees, is extensively enforced by the government.

I have conducted numerous internal investigations of overseas corruption. There are not many types of corrupt conduct that I have not seen.

The corruption problem in Kenya is, unfortunately, much deeper and much more difficult to correct than the lack of political leadership. The multilateral institutions, donor nations, development experts, and NGOs that fight corruption push developing countries to adopt a strong legal framework, an independent anti-corruption agency, effective law enforcement, government oversight, an accountable and transparent public finance process, Judiciary reform, and a strong civil society and media.

Kenya has adopted many of these reforms to improve and strengthen the rule of law and provide greater transparency. Global Integrity, an NGO that measures these issues, rates Kenya’s anti-corruption legal framework at 100.

SYSTEMIC CORRUPTION

The new Constitution expresses strong principles of honesty and integrity. These principles are further elaborated by the Anti-Corruption and Economic Crimes Act, the Leadership and Integrity Act, the Public Officer Ethics Act, the Public Procurement and Disposal Act and the Public Private Partnership Act and independent constitutional offices and commissions.

In the Judiciary, corruption is rumoured to continue unabated. The record of independence of the Director of Public Prosecution is not yet clear. Overall, Kenya has in place a strong legal and institutional framework for fighting corruption. Yet, it is failing. Why?

Corruption in Kenya is systemic. It permeates the entire society. It operates in a culture of impunity and a lack of accountability. Enforcement authorities fail to convict senior officials. Public office and political power is associated with access to self-enrichment Many youth strive to become politicians, not as a way to improve the country, but as a way to amass wealth quickly.

In Kenya, political leaders and citizens passively support and maintain corruption. Everyone morally condemns corruption. Everyone recognises its adverse impact. But, from the perspective of each individual citizen, the short-term costs of honesty are very high and the benefits low, and the short-term benefits of corrupt conduct are far greater than the consequences of corrupt conduct. It is a vicious circle — where no person believes he or she can change it.

The general consensus is that it is wrong to pay bribes, but it is the system. No one reports the bribe request, as there is the sense that it will not change anything. 

The considerations are similar for public officials and elites. The attitude appears to be that an official is expected to help himself, his family, his tribe. If he doesn’t “eat,” some may consider him stupid.

Corruption also serves as an important tool to fund political campaigns; political survival may depend on it. Since ethnic loyalty takes precedence over the public interest, and voting is generally based on ethnic loyalty.

RISKY

Now, with devolution, corruption is expanding dramatically at the local level.

I have watched with great interest the flurry of enforcement-related activity following the issuance of President Uhuru Kenyatta’s List of Shame. But the cost/benefit consideration of officials will not change without a significant number of criminal convictions and the imposition of serious penalties. This is highly unlikely.    

There is also evidence that reporting, fighting, and enforcing corruption is risky. Even the Ethics and Anti-Corruption Commission is steadily being undermined.

Given the costs versus benefits of corruption, the personal costs to oppose corruption appear too high, the benefits too great. I am not optimistic that corruption in Kenya can be corrected with further legal reforms or even a political push. The costs must outweigh the gains.

Also, Kenyans will need to think outside the box, beyond the usual reforms, to mobilise its citizens to work together to change the norms that reinforce corruption. Change can perhaps best be made from the bottom-up, through a critical mass of committed citizens. The public does not appear to be at that tipping point, yet. This may be a generational battle.

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Phillip Ochieng’s column resumes next week