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Preliminary

There are variations when it comes to the definition of Corruption as there’s no universally accepted definition. Some Scholars such as Karen Katz In her 2011 article on corruption published in the Canadian law journal, The Advocate, defines Corruption as the exploitation of a position of trust, typically in the public sector, in order to receive a private gain, which may or may not be financial.

She goes ahead to state that Corruption is not a simple issue of right and wrong, and conditions that encourage public officials to seek out or accept corruption include the expected gains from undertaking a corrupt act which exceed the expected costs and little weight is placed on the costs that corruption imposes on others and the most common form is bribery.

In their 2000 article, Huther and Shahl suggest that there are three broad varieties of corruption;
i) Bureaucratic – big percentage of public officials abuse public office often extracting small bribes or favors.
ii) Grand corruption – is when theft or misuse of huge amount of public funds by a relatively small number of officials
iii) State capture or Regulatory capture – collusion among public and private agents for private benefit

Despite the type of corruption one engages in it holds back Kenya’s competitiveness as one of the growing economy in Africa. Frequent demands for bribes by public officials lead to increased business costs for both local and foreign investors. Fraud in public procurement is rampant and this has led to misappropriation and embezzlement of huge sum of public funds.
On the other hand, the government has stepped up the fight against corruption by enforcing the Anti-Corruption laws and Economic Crimes Act 2003, in addition to the Bribery Act of 2016 which strengthens the fight against the supply-side of corruption. Adequate enforcement of Kenya’s Anti-Corruption framework has become an issue because of the weak and corrupt public institutions.

The Current Nature of Graft in Kenya
Corruption in Kenya only seems to be getting worse with more and more corruption scandals coming to light every day. Kenya has been riddled with a myriad of scandals which after all never get to be resolved citing lack of or insufficient evidence when the suspects are arraigned in court. This is even though there is a clear evidence against them. After the famous hand shake between President Uhuru Kenyatta and Rt. Honorable Raila Odinga, political environment has become conducive for the President who has been vocal in his appeal to Kenyans to join efforts in the fight against corruption and has also recently taken decisive steps to combat corruption.

He has essentially changed leadership at all the key law enforcement agencies that are responsible for fighting corruption. This year he called for a lifestyle audit of all public servants including himself and the Deputy President, William Ruto. He also directed all procurement officers in public entities to step aside and undergo fresh vetting. The President also directed the relevant institutions mandated with investigating and prosecuting economic crimes to do a thorough job and ensure those found culpable are held accountable. This shows that the President is focused on the fight against corruption.

Most recent scandals the country include the NYS second scandal, Kenya power corruption scandal, Kenya Pipeline Corruption scandal among others.
Despite the many promises by the government to deal with corruption, evidence shows that corruption has not declined over the last decade, nor has the peoples’ perception of corruption positively changed.
According to a report by Bertelsmann Stiftung’s Transformation Index (BIT), Kenyans report a high probability of bribery demands in meetings with land service officials, and corrupt practices reportedly occur in almost 20% of all interactions (TI Kenya, 2014). This is evident in Republic V National Land Commission ; 3 Others Ex-Parte Vivo Energy Kenya Limited (Formerly B.P Kenya Limited) 2015 eKLR the Plaintiff, Vivo Energy Kenya Ltd sought an order from the court to restrain National Land Commission and the Registrar from revoking its leasehold interest on land property in Riruta without the case being heard in Court.
It was held that the decision of the National Land Commission was clearly tainted with illegality and procedural impropriety. This led to restrain being upheld by the court.
The Environment and Land Case 441 of 2017, Lenkishon Kimirei Maika ; 2 Others V A.M. Kalio 2018 eKLR shows the level of impunity in National Construction Authority. The Plaintiff raised objection with the Defendant, Physical Planning Department and the NCA. Work on the project was stopped by NCA but later on continued though contrary to building rules, laws and regulations.
The court dismissed the application on the basis of no prima facie
Business owners and companies also should be aware that possession of a land title or leasehold does not guarantee property ownership as one parcel of land can be leased or sold to more than one party at the same period of time without the knowledge of the purchasing/ leasing persons. The civil application case no 327 of 2009 Safaricom Limited V Ocean Beach Hotel ; 2 others 2010 eKLR proves this point as the Applicant sought injunction to restrain the Respondents from evicting and demolishing of its equipment on the premises. The court however granted a limited injunction for the parties to arbitrate their issues.
In the case Kenya Anti-Corruption Commission v L. Z. Engineering Construction Limited ; 5 Others 2004 eKLR Ethics and Anti-Corruption Commission filed a suit against the Applicants claiming to have been injured by the unlawful ownership and possession of YAYA CENTRE or land situated in Nairobi. The case was dismissed by the court on the grounds failure of the Commission to following its investigative powers to the later and in accordance to the law. The Applicant herein was a powerful figure in the society and might have been the reason for the case dismissal. From the aforementioned case, land-grabbing and seizures by powerful elite is common as a result of pervasive corruption and impunity (BTI 2016).
Disappearances of title deeds from the Registrar’s office are common houses built on illegally acquired property are often demolished without prior notice. In the case of Kental Enterprise Limited V City Council of Nairobi 2012 eKLR the Nairobi City council had issued an order to demolish part of the Applicant development on the suit properties that encroached the road reserve. This was however illegal as the Defendant is the one that had approved the construction of the said UKAY CENTRE and the Applicant had been paying for the land rates of the said suit. The court was satisfied that the Applicant had not encroached the said Road reserve and ruled in favor of the Applicant.
Relief to the fight against graft by the EACC came when the case of Okerosi Misera & another V Republic 2018 eKLR was successfully filed and the conviction of the corrupt government officials was upheld by the court. The two, Mr. Boniface Okerosi Misera and Mr. Cephas Kamande Mwaura, were found guilty of fraudulent acquisition of public property and fined Ksh. 40 million and 37.2 million each respectively over irregular purchase of 120-acre parcel of land meant for use as a cemetery by the Nairobi City Council.
According to International Continence Society (ICS2016), Allegations stated that high-level corruption takes place in Construction and Infrastructure procurement processes ranging from energy to airport construction where a number of contracts were awarded to local and foreign firms that allegedly did not comply with public procurement laws in Kenya. In Republic V Kenya Airports Authority Ex-Parte Seo & Sons Limited 2018 eKLR the Applicant had bid for and qualified for provision for the construction of the Mandera Wargadud Airport Phase 1. However, the tender was given to a different company.
The judge issued an order to terminate the tender award given to the Applicant for the Construction of Mandera-Wargadud Airport (Phase 1) and a stoppage of all site activities for the tender bid as the award was marred with fraud.
Major infrastructure development that should be a blessing to the local communities end up negatively affecting them as projects come with corrupt motives from few individuals who have personal leading to none/ delayed compensation of the affected locals. See the case of Patrick Musimba V National Land Commissions & 4 Others 2016 eKLR where the Petitioner seeking to highlight the alleged systematic failures by the respondents in implementing and undertaking the SGR project. The Petition was essentially about the protection and enforcement of the basic, fundamental and human right to property. It focused on the right to just compensation when the State has to deprive a person of his property. The bench held that Petitioner failed to discharge the burden to the required standard by the constitution to warrant prima facie and therefore the Petition was dismissed.

In the case of Miliki Limited v County Government Lamu & 2 others 2018 eKLR
Miliki Limited sought for orders that pending the hearing and determination of the suit. The plaintiff is the owner of all the parcel of land known as Lamu/Block 11/119 measuring approximately 21.6 acres. The plaintiff’s acquired the property through a proper and lawful sale and was issued with a little deed thereto on 28th August 2007.The actions of the Defendants of constructing a road on the suit property without compensating the plaintiff, high handed and constitutes trespass to land. The 1st defendant further avers that the road being constructed is not a new road as alleged by the plaintiff but rather, the upgrading of the existing road, by the construction of a paved foot path. It is their case that the road under construction has always been open to use by members of the public since time immemorial and eve after the alleged acquisition by the plaintiff and the plaintiff is aware that it had a duty to surrender the same for road access.
The judge stated that defendants had enough evidence to proceed in constructing a road on private property without any notification, consultation or compensation to the owner.
This above case shows the magnitude corruption has taken in land and construction. An individual or business entity can purchase land in a legal way only later to be repossessed by the government agency.

Corruption also is rampant especially when it comes to big government development projects where less attention is given to the people or parties that are going to be affected by the project/s. Citing the case of Okiya Omtatah Okoiti ; 2 others v Attorney General ; 3 others 2014 eKLR Here the Petitioners filed the consolidated Petitions challenging the legality and constitutionality of the construction of the Standard Gauge Railway in Kenya intending to benefit the larger East African Community. In their respective petitions, they were seeking various reliefs for breaches of the Constitution and the law in implementing the said project. The petitioners (Okiya Omtatah Okoiti and Wyclife Nyakina Gisebe) were aggrieved that the government failed to exercise due diligence as it failed to independently carry out a feasibility study and design of the project before seeking contractors to implement it.
The judge stated that a constitutional Petition cannot be founded on document whose source and origin are not disclosed by the petitioner and whose authenticity therefore couldn’t be vouched for.

Effects of corruption in economic growth and development

Corruption generates economic distortions by diverting public investment into capital projects where bribes and kickbacks are more plentiful. Officials may increase the technical complexity of public sector projects to conceal or pave the way for such dealings, thus further distorting investment. This affects mostly the small businesses.
The allocation of public procurement contracts through a corrupt system leads to inferior public infrastructure and services. Some projects are never completed because of exorbitant upfront bribes eroding the operating capital or some are completed but never used because they are poorly built hence capital spending fails to generate economic growth.

In Social sphere, corruption discourages people to work together as a unit for the common good hence the frustration and general indifference among the public result in a weak civil society. Demanding and paying bribes becomes the tradition which results in social inequality and widens the gap between the rich and poor, increased poverty and lack of basic needs like food, water and drugs and security.

Corruption minimizes tax revenue collected by the government as it fosters tax evasions. This leads to deficit financing since the government’s ability to collect revenue is hindered hence crippling its ability to finance crucial budget expenses.
Graft also leads to provision of Inferior public infrastructure which hinders the good flow of business as systems are broken down with substandard materials being used for public amenities. The uncertainty of economic transactions. People fear to commit to future investment as they are not sure how things will turn out to be.

Legal measures that Kenya has put in place to fight corruption

Kenyan government has made good steps in fighting graft through the Judicial System and the associated institution through enactment and interpretation of the laws that concerns corruption. Some of the

Leadership and Integrity Act, 2012

Gives effect to and establish procedures and mechanisms for the effective administration of chapter six of the Constitution, Guiding values and procedures, Leadership Education and training generally for all public officers. The purpose of the Act is to ensure that State
Officers respect the values, principles and requirements of the Constitution.

The ethics and anti-corruption commission Act, 2011
The Act establishes the Ethics and Anti-Corruption Commission pursuant to Article 79 of the Constitution of Kenya 2010. The main functions of the Act include developing a code of ethics for state officers, receiving complaints on breach of code of ethics, investigating and recommending to Office of Director of Public Prosecutions on acts of corruption or violation of code of ethics, instituting court proceedings for recovery and protection of public property or freeze or confiscate proceeds of corruption.

The Proceeds of Crime and Anti-Money Laundering Act, 2009 (Revised 2016)

This Act deals with any property that forms part of proceeds of crime and whose effect will be to conceal or disguise the nature, source, location or movement of the said property,
It also provides that any person who acquires property and knows or ought to have known that it forms part of the proceeds of a crime committed by another person, commits an offence. It adopts a broad definition of the proceeds of crime by including any economic advantage derived in connection with an offence. It also introduces measures for combating the transmission and use of proceeds of crime and provides for the identification, tracing, freezing, seizure and confiscation of the proceeds of crime and for connected purposes.

The ethics and anti-corruption commission Act, 2011
The Act establishes the Ethics and Anti-Corruption Commission pursuant to Article 79 of the Constitution of Kenya 2010. The main functions of the Act include developing a code of ethics for state officers, receiving complaints on breach of code of ethics, investigating and recommending to Office of Director of Public Prosecutions on acts of corruption or violation of code of ethics, instituting court proceedings for recovery and protection of public property or freeze or confiscate proceeds of corruption.

The constitution of Kenya, 2010
The New constitution of Kenya is the supreme law of the land and binds all persons and all state organs at both levels of government. It outlines the national values and principles of governance which include Good governance, integrity, transparency and accountability.
It represents a key milestone in the fight against corruption by strengthening the protection of civil and political rights, limiting executive powers, strengthening legislative oversight, increasing the judiciary’s independence and devolving central administration. It also grants the right to access information, but no legal framework to govern the exercise of this right has yet been enacted.
Chapter six of the constitution is about leadership and integrity. It sets high standards of integrity for office holders. It expressly requires state officers to conduct themselves with integrity and to ensure that decisions are not influenced by improper motives or corrupt practices. It also limits the involvement of public servants in commercial activities and provides that state officers must behave in a matter that avoids conflict between personal interests and official duties.
Moreover, the constitution provides that parliament shall enact legislation to provide for the keeping of financial records and auditing of accounts of all governments and other public entities and prescribe measures for securing efficient and transparent fiscal management.

The United Nations convention against corruption

The supreme law of the Republic of Kenya provides that the general rules of international law shall form part of the law of Kenya and any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution. Therefore the United Nations Convention Against Corruption forms part of the Kenyan law.

The bribery Act, 2016
The purpose of the Act is to criminalize the act of giving or receiving a bribe in the private sector. It provides for specific requirements that private entities must have in place in the prevention of bribery. The act also has a provision that directs on how matters investigated and/or prosecuted and court proceedings commenced prior to this Act would be conducted under section 27(2).
Also it provides for an effective co-ordination and accountability framework in the prevention, investigation and prosecution of acts of bribery. The Act creates a legal obligation on a person holding authority in a private entity who becomes aware of an act of bribery to report the matter to the Ethics and Anti-Corruption Commission within 24 hours of the occurrence of the incident.

Challenges Faced in combating corruption

No institution can realize mandate independently as there is dependent on other institutions where corruption may have already infiltrated and hence, slowing down of the graft cases.
Standard of proof for criminal cases is high this is evident from the number of petition and appeals that have been dismissed on the grounds of lack of sufficient evidence.
Corruption and Economic Crimes and the Witness Protection Act lack a complaint mechanism through which the public can report corruption owing to the absence of operational or effective witness protection laws. There is no official means of protecting the whistle blowers; this then hinders civil servants from reporting cases of fraud as they are not well protected from potential repercussions of their whistle blowing. This challenge needs to be highly addressed for individuals to report any form of corruption they may encounter.

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