Kenya’s State Capture: Is the Nation in Crisis?
State Capture is a political-economic project whereby public and private actors collude in establishing clandestine networks that cluster around state institutions in order to accumulate unchecked power, subverting the constitutional state and social contract by operating outside of the realm of public accountability(Godinho& Hermanus, 2018).
(Wachira,2019) a Nairobi based constitutional lawyer cites that the state capture in Kenya as a result of the union between politics and corruption. This has led to the elite using the presidency, the treasury and the repurposed government machinery(in this case the National Intelligence Service, National Police Service, Directorate of Criminal Prosecutions and Directorate of Criminal Investigations) turned into a “temporary zone for personal appropriation”. In a report by the Africa Centre for Open Governance(AfriCoG), the report shows shocking revelations of how state capture is the main root cause for corruption in Kenya. The report concludes that the recently touted anti-corruption war in Kenya, publicly driven prosecutions are most likely to deepen corruption instead of undermining, it as indictments and prosecutions get weaponised to partisan ends for the upcoming 2022 general elections.
Kenya’s corruption index currently lies in 137/180 countries with a score of 28/100 (Transparency Intenational, 2020). In 2016 in a report by Price house Water Coopers (PWC), Kenya ranked 3rd most corrupt country in the world, with embezzlement fraud and procurement fraud as the leading economic crimes(Omondi, 2016). To show how much of magnitude these numbers mean, audit reports from the recently departed Auditor General in Kenya, show that Kenyans lost an average of approximately USD 10 Billion per year over the past 8 years, cumulatively that is about USD 80 billion(Achuka, 2019). As of 2018, Kenya’s Gross Domestic Product was USD 87.9 billion, in a nutshell, it is accurate to say Kenyans lose over 10% yearly to corruption(Worldbank, 2020).
“Successful State capture networks in Kenya have had two elements. One on the bureaucratic side, a coterie of favoured officials allowed to accumulate and exercise power in completely unaccountable ways often behind the shield of presidential privilege, State security or defence procurement. On the business side, there is often a clique of local businessmen allied to political insiders, or alternatively, the favoured groups are shadowy, international companies whose shareholders are known’ (AfriCoG, 2019)
According to the report for state capture to succeed, four things must happen. First, the oversight institutions must be devitalized and gutted out that is, the Controller of Budget, The Auditor General, The Kenya National Human Rights Commission(KNHCR) and the parliamentary committees must either be totally compromised or ineffectual in oversight. (Wachira, 2019). Second, the law enforcement and the rule of law, this includes the following institutions, ie, the National Police Service, the Ethics and Anti-Corruption Commission (EACC) of Kenya, the judiciary an the prosecution agencies are either very weakened, captured or redirected as weapons. (AFriCog, 2019). Thirdly, the ordinary channels of politics and accountability through periodic elections are blocked, by hijacking the electoral management body or violently intimidating political opponents. Finally, the countervailing institutions that are the civil society and the media must be shrunk until they pose no threat to the capture, they could also be highly compromised and redirected to the state capture memo. (Wachira, 2019).
Capture strategy: Weakened Judiciary
Since the Golden bag scandal back in the 90s, the judiciary was perceived as the pillar for corruption. When the newly elected government got into power in 2003, they promised reforms in the judicial systems, with hopes to purge corrupt judges and magistrates. This was followed by a commission of inquiry into the judges conduct by which was known as the Aaron Ringera commission. After the commission was, done with investigations, it gave a report that questioned the conduct of over 80 magistrates and 23 judges. Nonetheless, the report ended there as irregularities were brought questioning the conduct of the investigation in the report thus nothing happened. None of them was found guilty, leaving people who were to termed “unfit” for office to continue administering justice(Africog,2008).
The recently promulgated constitution in 2010 promised judicial reforms. A strengthened Judicial Service Commission and the formation of the supreme court. This was followed by vetting of judges and magistrates, a vetting board to check the conduct of the judges and magistrates. Article 23 on vetting judges and magistrates. The whole idea is to revamp the judiciary and have a more accountable judiciary. This process, nonetheless proved ineffectual and inadequate, in some cases, some vettings were challenged in courts and cases heard by unvetted judges thus jeopardizing the whole idea. Another challenge was the interpretation of the vetting by the Vetting Board and the courts, leading to having 45% of vetting board’s decisions reversed by the High Court and the Court of Appeal. Additionally, the process of the vetting incurred some legislative delays since the proposed vetting period was ambitious not realistic thus affecting the operations. In the end, the scope of the vetting board was reduced by the supreme court resulting in failure of the board to meet its two main goals; cleaning up the judiciary and restoring public confidence in the judicial system in Kenya(Wachira,2019).
The government blames the judiciary on corruption irrespective of their shoddy compromised investigations carried out by police, the ineffectual politically targeted prosecutions but who profits when the courts are perceived unworthy or compromised?
Anti Corruption Fight as a Public Relations stunt
In the beginning era of Kenya’s 3rd president Kibaki, after he took over from Moi’s 24-year rule in Kenya. The country was filled with hope, that corruption will be stamped out by the new government. This, however, became a pipe dream for many Kenyans, this is because during the indictment of high profile cases like Kamlesh Patni( a popular businessman in Kenya) in the infamous Goldenberg corruption Scandal that misappropriated funds worth of 10% of Kenya’s GDP at the time. There was no single conviction just indictments that led to nowhere. Just a year after president Kibaki took over, another scandal emerged, Anglo Leasing corruption scandal which was linked to the vice president’s office, at the time. The scandal resulted in Kenya losing a lot of money and to make matters worse the third party creditors sued the Kenyan government that ended up in the Kenyan government paying off the creditors.
Under the Kenyatta’s era, the anti-corruption campaign has again being revitalized with new zeal but same old gimmicks and theatrics. In his first term in office after the election, the president promised a spirited fight against corruption that resulted in half of his cabinet stepping aside with other top ministry officials for corruption charges. This hyped-up anti-corruption campaign led to the reinstatement of cabinet secretaries, a few indictments and a few convictions in court if none(usually it is the people at the bottom of the chain that get convicted). In 2018 the president during the celebration of Kenya’s independence day requested about 1000 officials in his government to step aside citing investigations and paving way for a new vetting process. This was seconded by a promise of a lie detector test that never occurred. (Wanga & Uruko, 2019)
In recent months, the office of the Directorate of Public Prosecutions(ODPP) has indicted high-level officials otherwise as “big fish” due to corruption charges and abuse office. So far no single conviction, there has only been one case where a governor facing corruption charges has been impeached by the local county assembly a decision that was upheld by the senate of Kenya. These indictments, however, are seemingly politically motivated, the deputy president accused the Directorate of Criminal Investigations of selective investigations into the corruption allegations. Many leaders that are under investigations or have ongoing court cases are allied to the deputy president, for instance, the former treasury cabinet who was indicted for dam scandal got fired, two other governors whose allied to the deputy president are also barred from office and are facing corruption charges.
(Wachira, 2019) calls these endless indictments and prosecutions, motion without movement, like the ecological method of population recording, “capture -mark -release”. There are three mega-corruption scandals, namely Goldenberg, Anglo Leasing and the Eurobond whose investigations have over the years become a routine circus because of collusion, fightbacks and endless legal manoeuvres. “The war against graft has been too activity-driven and has become a tool for resolving Jubilee’s(current ruling party) internal problems. We have adopted a capture, mark and release mentality and this war cannot be won by using the same old tired means that have been tried and defeated in the past.” (Kimathi,2019).
The public is hoodwinked to believing that there is a real fight against corruption. Every time a high profile official gets arrested, there is an excitement that ends up in huge disappointments since these people would spend a weekend in custody then get released on bail or cash bond in most cases more than ten times the amount they are accused of. These cases are accompanied by dramatic arrests and a great deal of media attention. In the end, the fight against corruption in Kenya seems almost impossible.
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