A visitor to Kenya, a forthright ago, would have wondered what would come out of the national conference on corruption.
Based on the coordinated blame of the Judiciary by the Director of Public Prosecution (DPP) and the Directorate of Criminal Investigations (DCIO), the Chief Justice has unwittingly accepted the subtle nudge by redeploying staff.
This change in the Judiciary concerns me because it proves that the DCIO and the DDP will take a lap of honour merely for forcing changes in the Judiciary without really gathering evidence and prosecuting any cases.
While the conference was sold as an attempt to reset the ''fight against corruption'', the highlights revealed that the primary aim of the executive was to apply pressure on the Judiciary to lower thresholds for evidence, get scrupulous judges out of the way and perhaps allow prosecution an elevated probability to record a victory from that walkover.
Again, the conference generated some buzz and forced a shuffling of the chairs on the deck but lacked big ideas that will raise risk for the corrupt professionals in the public sector and their counterpart outside. This proves that Kenya’s anti-corruption policy cannot succeed with proclamations of blame and promises to fight harder. Instead, the fight against corruption is good illustration of effort and money behind bad ideas.
The first change required is for the republic to update the view that corruption is foremost a moral crime. That is true but it underpins the uninformed approaches such as encouraging children to learn ethics in school, religious admonition in churches and temples and trying to shame people into being less corrupt. No meaningful change will occur by viewing it thus.
By acknowledging that the most harmful forms of corruption in Kenya’s public sector are through procurement fraud and diversion of public property for private purposes, we accept that this is a crime of asset-building. Unlike the more common bribery and extortion witnessed when some policemen harass motorists, the former are more harmful and cause dysfunction in public institutions.
There are numerous offences in the penal code and other statutes that are intended to reduce the level and effects of corruption. The incentives to steal from government bears risks but at present these are so low that even if only a few would take those odds, the public sector as a whole would still be losing vast amounts of public funds.
The deterrence value of a conference for the criminal in the procurement office or the forger of land records remains unchanged after that conference. This is because the conspiracy with the outside provider of services gives both of them an incentive to protect each other whenever investigations start.
Kaushik Basu suggests in his most recent book that making bribes paid for some crimes recoverable and not subject to prosecution would break the common interest for an outside party to defend a public sector officer with whom he cooperated to commit fraud against government. Even though this would offend the sensibilities of the people incurred to the moral approach by seeming to give some respite to people who participated in crime, it would yield the evidence that the DPP so desperately needs but is none the wiser. In this way, even the rare corrupt judicial officer has an interest in avoiding interaction with the person being prosecuted once prosecution commences.
The same view of corruption as principally a moral crime leads to inefficient outcomes because it does not provide motivation for the executive to prioritise resource use in prevention and reduction of procurement fraud. To provide this motivation, parliament ought to consider another legal change that allows any state officer to purchase and pay for private intelligence that supports their case in prosecution of corruption. This would be a very pragmatic approach allowing the DCI and DPP to gather evidence that they cannot find and pay private firms or individuals that are neither connected to nor implicated in those crimes.
This policy would be most helpful as it would allow private persons with forensic skills or who are fortunate to find information to trade that information, provided it leads to successful prosecution. Knowing that these two rules could also generate new incentives to resell that information, they provide a significant wedge between direct perpetrators of crimes and those who may be their counterparts or those who can actively find evidence.
Those who steal millions of shillings from public coffers pay bribes and use threats to guard that evidence. Thus, the DCIO and DPP must break those incentives through a simple game theoretic model. Heaping blame on the Judiciary is easier but shows that they are unaware of why their well-meaning efforts remain ineffective.
Kwame Owino is the chief executive officer of the Institute of Economic Affairs (IEA-Kenya), a public policy think tank based in Nairobi.