Lessons on the independence of institutions from South Africa

Saturday February 20 2016

Members of the Economic Freedom Fighters political party leave the parliament as President Jacob Zuma attempts to give his state of the nation address in Cape Town, South Africa, on February 11, 2016. PHOTO | ASHRAF HENDRICKS

Members of the Economic Freedom Fighters political party leave the parliament as President Jacob Zuma attempts to give his state of the nation address in Cape Town, South Africa, on February 11, 2016. PHOTO | ASHRAF HENDRICKS  

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South Africa provided some welcome news on the anti-impunity front last week. After years of dithering President Jacob Zuma finally admitted in court that the Public Protector’s report on the Nkandla scandal was binding and there had been abuse of office in the renovations of his country estate.

The Nkandla scandal involves the use of public funds in upgrading Zuma’s rural home for “security” purposes. More than US $20 million (about Sh2 billion) was used for the upgrade that included an Olympic size swimming pool, a cattle kraal, a helipad, chicken run, amphitheatre, private military hospital and a visitor’s centre.

Complaints were made to the Public Protector, Ms. Thuli Madonsela, (the South African equivalent of our anti-corruption commission and ombudsman rolled into one) who then investigated.

Her report entitled “Secure in Comfort” found that Zuma benefited irregularly and illegally from these upgrades, and quickly became the subject of heated political debate in South Africa.

There was pressure on Zuma to be held accountable, and—at a minimum—refund what had been spent irregularly and illegally. Zuma’s formidable political machine reacted, demonising Ms Madonsela at every turn, accusing her of all manner of motivations, but rarely ever going into the substance of her findings. They also dismissed her reports as merely advisory rather than binding.


Like almost all African presidents and senior officials who see the state as their personal ATM, Zuma rejected the findings and tried to divert attention.

He got his Minister of Police to do his own report on Nkandla that, surprise, surprise, absolved him of all and any wrongdoing. Parliament, controlled by his party the ANC, also absolved him.

Opposition parties then took the matter to South Africa’s constitutional court to determine whether the reports of the Public Protector were binding.

And just last week in a shocking about-turn President Zuma conceded that the reports were binding and offered to pay back what the Public Protector had determined were not security costs.

The fallout from this concession is still unravelling but it is a milestone. It is a huge step forward for courageous, independent and honest state institutions. Ms Madonsela spoke truth to power, did not flinch when that power tried to destroy her, and has now been vindicated.

I wonder how far Kenya could have gotten if our “independent” institutions had displayed a fraction of the integrity and courage that Ms Madonsela has shown! One of the hardest things, since 1963, has been maintaining the independence and integrity of our institutions.

At independence, the judiciary, the Attorney General, (as the Director of Public Prosecutions), the Auditor and Controller General and the Public Service Commission were meant to be the bulwarks against political interference. But as soon as Kenya became de facto a one-party state, this independence went out the window.


Some like Chief Justice Madan tried to restore the independence of the Judiciary, but he was outnumbered. And for many years the Auditor General’s reports have shown incredible corruption and waste but have rarely been implemented.

Today, our anticorruption commission has seemingly become the tool for those in power, trying to criminalize whistle blowers on the Eurobond scandal, while hastily absolving some favoured people.

Josephine Irungu’s incredibly detailed affidavit on the role of Anne Waiguru in the NYS scandal casts serious doubt on the integrity and/or competence of the anti-corruption commission — which did not interview Ms. Irungu--in clearing Ms. Waiguru. It has now announced the re-opening of investigations, but I am not holding my breath.

It is not any better with the IEBC which has unacceptable credibility and integrity issues, given the Chicken gate scandal, the public animosity against one of the candidates at the last elections, unclear register of voters and serious procurement issues around the BVR kits.

And now the Supreme Court is under a cloud of suspicion with the charges of bribery involving Justice Philip Tunoi and Governor Evans Kidero. Were there other judges who could have been influenced?

This is not the time to play politics as Raila Odinga seems to be doing with Governor Kidero, following in Uhuru Kenyatta’s footsteps with Ann Waiguru. It must be one standard for all or we will never get anywhere.