Thomas Sankara, the Burkinabe revolutionary cut down in his prime, renamed Upper Volta Burkina Faso, the Land of Upright Men. Methinks it was the land of Upright Women too. But you get the point – under Sankara’s rule, Burkina Faso would cease to be the land of a thieving, conniving and corrupt elite.
In Kenya, the administration of Jubilee’s Uhuru Kenyatta has not renamed the country yet. But Mr Kenyatta has made it clear – at least rhetorically – that corruption is Kenya’s most malignant vice. I agree. But talk is cheap. Mr Kenyatta must put his money where his mouth is. He can’t blink, or retreat. The International Criminal Court will be his legacy if he can’t politically guillotine the corrupt.
Corruption in Kenya is not a legal problem. Not by a long shot. It is fundamentally a political problem. One cannot gainsay the utility of the law in fighting corruption. But only a fool would conflate law and politics. The law is a servant of politics, and does only that which politics permits. However, that does not mean that the rule of law, or fidelity to social justice and fairness, must be vitiated by politics. Nyet – the law is inherently political and that is the only reason it is not blind, or impervious, to injustice. So, let us get this straight – the law cannot be apolitical. That is why Mr Kenyatta must wage a legal-political war against the corrupt.
The arrest this week of Treasury Cabinet Secretary Henry Rotich and Principal Secretary Kamau Thugge along with the mandarins implicated in the colossal Arror and Kimwarer dams scandal could be a turning point in Mr Kenyatta’s putsch against the corrupt. How his government executes the legal fight to prove Mr Rotich’s culpability will speak volumes about his political gumption. Kenyans want to see the corrupt prosecuted, convicted, and frog-marched to jail. As a law professor – one who is faithful to the rule of law – I believe criminal guilt must be proven beyond reasonable doubt. But the presumption of innocence cannot be the reason to rig the legal system in favour of the corrupt. Legal paganism is the refuge of corrupt scoundrels.
All those charged, or indicted for corruption, must leave public office at once. They cannot hold public office while under indictment. Mr Kenyatta has taken the right step in replacing CS Rotich and PS Thugge. Alleged co-conspirators must be sent packing in shame. Mr Kenyatta must sever their bureaucratic heads without pity. They should not merely “step down”. No – they must vacate the public offices they hold without any possibility of return. The correct nomenclature is separation from service – a total guillotine. Public shaming as a prelude to criminal sanction is a powerful signal to the corrupt that the vice has no place in Kenya. The power of demonstration will put oomph in Mr Kenyatta’s futile protests against the corrupt.
It is nary a secret that the dams scandal that has felled Mr Rotich has already been politicised. Senator Kipchumba Murkomen, the political greenhorn, has already tribalised the criminal investigations into it. His political godfather, the irascible William Ruto – who also serves as the constitutionally independent deputy to Mr Kenyatta – reads a sinister purpose in the fight against corruption. To him, the fight against corruption is only intended to stop him from ascending to State House. As if to emphasise the point, Mr Ruto has insisted on continuing to pour millions of shillings into church coffers every Sunday. He does not care when citizens ask where he gets the money for such massive giveaways, which he euphemistically calls “tithes”.
In Kenya, every senior figure accused of corruption runs to hide under the skirt of the tribe. It is nothing but political blackmail. The sad thing is that it works every time. It is a war chant by those who are guilty. They dare the state to hold their corrupt sons and daughters accountable and bear the consequences. Typically, Mr Kenyatta retreats when confronted with such tribal blather. This is the question – will he blink again? My crystal ball tells me that this time round he will stand his ground and call the bluff of his erstwhile political allies. He has nothing to lose and everything to gain. The time has come for Mr Kenyatta to say enough is enough, and mean it.
Finally, let me end where I started. I invoked Sankara’s name, the martyr betrayed by his political comrades for raw power.
Politicians often make unpalatable bargains to capture office. Call them Faustian bargains. Mr Kenyatta and Mr Ruto entered into Faustian bargains in 2013 and 2017. That pact has now been put asunder because its raison d’etre has reached obsolescence. Will Mr Kenyatta rise from the ashes of that ignominious pact to leave a legacy that “Upright People” can be proud of? Or will he retreat – again? Will he blink and hand the baton to Mr Ruto?
Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. Twitter: @makaumutua.