Challenging Institutional Corruption in Kenya as a Christian Lawyer
From October 2016 to April 2017 , Ricky Kimachia worked as a full-time intern with CLEAR Kenya, an access-to-justice project ran by the Kenya Christian Lawyers’ Fellowship (“KCLF”), in partnership with the UK-based Lawyers’ Christian Fellowship (“LCF”).
Corruption, “the misuse of entrusted power for personal gain”[i], is said to be “so pervasive and so ingrained in Kenya’s political and social fabric that it has become part of the institutionalised national political culture”[ii].
For at one end there is ‘grand corruption’. Systematic looting of state assets by the country’s leaders[iii] and electoral deceit, be it blatant vote-buying[iv] or the suspicious torture and death of a senior official ahead of this year’s initial election contest[v].
At the other end, you have ‘petty corruption’. From random police roadblocks with requests for “ya kitu kidogo” (‘a little something’), to delays in obtaining basic ID documents from the local authorities.
Below, much will be made of the evident negligence that leaders and citizens of Kenya have demonstrated towards the country’s institutional corruption. All must see it as a far-reaching problem, its extent pointing to a solution that runs deeper than rhetoric, re-education and even law reform.
Through a Christian worldview, it is to be contended that the root cause of corruption is an innate failure to treasure God above all things; our default desire for anything else apart from God. The solution is redemption from this failure and reconciliation to God - the only way to see fundamental change in the institutional nature of corruption in Kenya.
Negligence in Tackling Institutional Corruption
(1) Culture of Impunity
Without fear of punishment, corruption in Kenya thrives. The last convincing reproach was seen in the Kenya Anti-Corruption Authority (“KACA”)[vi]. Unlike today’s Ethics and Anti-Corruption Commission (“EACC”), the KACA had the power to prosecute[vii]. Yet upon exercising the same, a successful legal challenge ruled the KACA to be unconstitutional for allegedly undermining the Attorney General and the Commissioner of Police[viii].
Replacing the KACA in 2003, the Kenya Anti-Corruption Commission (“KACC”) suffered similarly - overshadowed by corrupt political interests, no prosecution powers were to be found. Indeed, its Deputy Director, admitted there was “little we can do as long as we do not have prosecuting powers”[ix].
Next from 2010, came the EACC[x], to which Opala agreeably states that,
“…the proper functioning of the EACC was predicated on the goodwill of its officeholders and the DPP. There were no incentives created for the EACC to fight graft, since no matter how good its investigations, cases could always die a slow death in the DPP’s office, or in our corrupt courts. Having an independent commission gave us false security that we were fighting graft.”[xi]
This is not to neglect the commendable work that the EACC does - conducting investigations, providing public education, promoting preventive measures. The body particularly functions well as a filter in a country where corruption is too often spuriously pleaded[xii] - having referred 167 of the 7,929 complaints received, in the last financial year, to the DPP[xiii].
However, “…the current dichotomy between investigation and prosecution roles in graft cases has only helped to paralyse the anti-corruption war amidst tedious and self-serving excuses by those mandated with the task”[xiv]. For all their preliminary work, the EACC suffers from a fundamental lack of bite to go with its bark.
(2) Good Law is Necessary But not Sufficient
Many Kenyan citizens are willing to pay a bribe or otherwise act in corrupt manner[xv]. Of the 2397 Kenyans surveyed by Transparency International, 37% admitted paying a bribe towards public services[xvi]. 70% considered the government to be doing badly in fighting corruption[xvii] and 58% strongly agreed that ordinary people can make a difference in the fight against corruption[xviii].
Yet, only 12% of all those surveyed who admitted paying a bribe (i.e. of the report’s 43,143 participants from across Africa) actually reported it[xix]. The top reasons - fear of the consequences and doubt that reporting would make a difference[xx].
This is arguably avoidable upon greater awareness and enforcement of the laws already in place to protect Kenyans when withholding paying a bribe[xxi] - even where the reality may risk distressing short-term consequences[xxii]. Nevertheless, would this truly remedy the complacent attitude of many Kenyans towards corruption?
Rather, “…corruption [in Kenya] has compromised social morality, retarded the economy and undermined democracy but that does not seem to cause sufficient outrage at [an] individual level”[xxiii]. A complacent attitude towards corruption tacitly approves it. Yes, public services blatantly and heinously request, demand or physically force a bribe. However the giving of bribes is also a key issue in tackling corruption at an everyday level.
Both a passive indifference or active desire to avoid inconvenience supports and sustains the wider system of corruption. The need then is to “strengthen Kenya’s moral fibre so that corruption is fought, not because it is illegal, but because Kenyans will not stand for it”[xxiv].
How Does a Christian Worldview Resolve Institutional Corruption?
Behind corruption lies greed. For, behind the pursuit of personal gain through misusing entrusted power lies an immoral or even amoral desire for more; one that does not see such misuse as wrong but actually reasonable.
Biblically, greed is not declared to be wrong in a vacuum but rather because it is an affront to God himself[xxv]. As the uncreated Creator, God has inherent authority over his creation to define ‘good’ and ‘evil’. This he does in relation to His own character, not in an arbitrary manner. As theologian John Piper states, “God doesn’t take neutral things and make them bad by forbidding them. Treasuring, desiring, preferring anything or anyone above God is not evil because it’s forbidden. It’s forbidden because it’s the essence of evil.”[xxvi]
So beneath the stem of greed from which corruption branches off, lurks the rotten root - the essence of evil (or sin) itself. Money, status or influence are not the root as these are, in and of themselves, good gifts distributed to all by a gracious God[xxvii]. Nor is the essence of sin simply in the breaking of God’s commands, for “through the law comes knowledge of sin”[xxviii]. It is what the misuse of these gifts and law-breaking points to or rather reveals of all of us that is the root - our innate failure to treasure God as supremely authoritative, valuable and all-satisfying; our inherent valuing or desiring of anyone or anything else other than God.
Given the innate problem, it takes an external solution. A complete uprooting is required. That our very nature and status before God be changed - from being sinners by nature and so condemned, to being those freed from sin and declared righteous before God.
This change is undeservedly blood-bought through the life, death, resurrection and ascension of Jesus Christ, as historically recorded. Being both man and God, Jesus was able and willing to both fulfil the righteous requirements of His Father’s law and take on death, the just penalty for sin, on behalf of many, without himself unjustly remaining dead. All for what? “For Christ, also suffered, once for sins, the righteous for the unrighteous, that he might bring us to God…”[xxix]
Such change is effective in all whom God pleases, to all who respond to this good news in repentance and faith - that is, turning from sin and to God, living out an ongoing trust in the person and work of Jesus to save sinners by taking on their sin and gifting them with his righteousness.
So how is this good news being practically worked out?
To challenge the culture of impunity, CLEAR Kenya is part of the ‘Complaints Referral Partners Network’. Together with the EACC, the network of public and private bodies, amplifies the cry of ‘corruption’ and constructs means to handling public complaints efficiently and effectively.
To remedy the insufficiency of even good legislation, CLEAR Kenya: runs daily legal aid centres in four offices across Kenya, trains advocates and police officers on ethical and equitable practice and petitions Parliament, for example, to decriminalise the Traffic Act’s petty offences which leave individuals and small businesses facing hefty unnecessary fines.
Yet, ultimately all these activities count for little unless motivated by, and with a readiness to proclaim the good news of Jesus. Why? Christian lawyers in Kenya, and indeed all Christians, hold on and hold out hope beyond hope[xxx] - a hope outside ourselves, that is secured in the person and work of Jesus Christ.
Behind corruption lies greed, behind which lies the essence of sin - an innate failure to treasure God above all things; our default desire for anything else apart from God. This desire runs through Kenya’s corruption problem within its self-perpetuating culture of impunity and complacency to see the problem as running much deeper than legislation can reach.
Not further rhetoric, re-education or rules but rather the redemption from sin and reconciliation to God offered in Jesus will, inter alia, reform the institutional nature of corruption in Kenya. Instead of being a moral primer or boost in the fight against corruption, it has been contended that only by faith in the grace of God in Jesus, will Kenya or any nation be truly free from corruption.
[i] Transparency International - FAQs on Corruption, How do you define corruption? - https://www.transparency.org/whoweare/organisation/faqs_on_corruption#defineCorruption [Date: unknown, Accessed: 5 August 2017]
[ii] Akivaga, Mwalkimu Kichamu. Quoted in Control of corruption in Kenya: Legal-Political Dimensions 2001-2004 - Ludeki Chweya et al (ed) (Claripress Ltd 2005, Nairobi) p.24
[iii] Steve Bloomfield. ‘Report reveals scale of corruption in Kenya’, http://www.independent.co.uk/news/world/africa/report-reveals-scale-of-corruption-in-kenya-401113.html [Dated: 1 September 2007, Accessed: 12 August 2017] - cf. Today’s scandals namely: (a) Eurobond, (b) National Youth Service, (c) Ministry of Health, where in total at least Kshs 220bn (£1.6bn) of taxpayers’ money has still not been accounted for
see. (a) Wafula, Paul.’Audit: Sh215b Eurobond cash unaccounted for’. https://www.standardmedia.co.ke/article/2000215138/audit-sh215b-eurobond-cash-unaccounted-for [Dated: 7 September 2016, Accessed: 2 September 2017];
(b) Otieno, Dorothy. Before you vote: The truth about money lost in the NYS scandal. http://www.nation.co.ke/newsplex/NYS-loss-Raila-Odinga/2718262-3986036-tpbb6uz/index.html [Dated: 24.06.17, Accessed 2 September 2017];
(c) [iii] Kamau, John. ‘Inside Story of Sh5 Billion Scandal at Ministry of Health’, http://nairobinews.nation.co.ke/news/inside-story-of-sh5-billion-scandal-at-ministry-of-health/ [Dated: 27 October 2016, Accessed 12 August 2017]
[iv] Gutiérrez-Romero, Roxana. ‘An Inquiry into the Use of Illegal Electoral Practices and Effects of Political Violence* (date?) - Centre for the Study of African Economies, Department of Economics, University of Oxford
Wanjala, Emmanuel. ‘Voter bribery 'has a big influence' on Kenyan voting patterns – survey’ - https://www.the-star.co.ke/news/2017/02/24/voter-bribery-has-a-big-influence-on-kenyan-voting-patterns-survey_c1513486 [Dated: 24 February 2017, Accessed: 2 September 2017]
[v] de Freytas-Tamura, Kimiko. ‘Kenyan Election Official Is Killed on Eve of Vote’ - New York Times - https://www.nytimes.com/2017/07/31/world/africa/chris-musando-kenya-election-official-dead.html?rref=collection%2Fbyline%2Fkimiko-de-freytas-tamura&action=click&contentCollection=undefined®ion=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=collection [Date: 31 July 2017, Accessed: 2 September 2017]
[vi] KACA was established by a 1997 amendment to the previously dormant, limited Prevention of Corruption Act 1956 (“POCA 1956”) - the Act created only two categories of offences - (1) bribery of public officers and agents and (2) obtaining advantage by public officers without consideration per section 3-6
[vii] POCA 1956, Section 11B(3)(b), (4)
[viii] Gachiengo V Republic (2000) 1 EA 52 (CAK)
[ix] Kenya Times, 7 July 2006
[x] Enshrined via Article 79 of the Constitution of Kenya, 2010; s.3, Ethics and Anti-Corruption Commission Act
[xi] Opalo, Ken. ‘Is the Ethics and Anti-Corruption Commission suited to fight corruption’ - The Standard - https://www.standardmedia.co.ke/article/2000163997/is-the-ethics-and-anti-corruption-commission-suited-to-fight-corruption [Date: 30 May 2015, Accessed: 14 September 2017]
[xii] Wambugu, Ngunjiri. ‘Media must stop false corruption allegations’ - The Star - https://www.the-star.co.ke/news/2016/11/07/media-must-stop-false-corruption-allegations_c1450820 [Date: 7 November 2016, Accessed: 14 September 2017]
[xiii] EACC Annual Report (2015/2016) - p.xi, p. 19, para. 2.3; p.20, Table 2: Action Taken by the Director of Public Prosecutions - http://www.eacc.go.ke/Docs/AnnualReports/EACC_2015-2016-Annual-Report.pdf
[xiv] Commenting in relation to the KACC yet applicable today - Kibe Mungai, ‘The Obstacles in the Fight Against Corruption in Kenya’ (2006), an essay collected within ‘Anti-Corruption and Good Governance in East Africa: Laying Foundations for Reform’, edited by Tom O Ojienda, Law Africa Publishing (K) Ltd, Nairobi, 2007, p.153
[xv] Nyambura, Ruth. ‘Majority of Kenyans would readily pay a bribe - poll’ - Capital News - http://www.capitalfm.co.ke/news/2016/08/majority-kenyans-readily-pay-bribe-poll/ [Date: 23 August 2016, Accessed: 2 September 2017]
[xvi] Pring, Coralie (Research Coordinator, Global Surveys). ‘Afrobarometrer & Transparency International Global Corruption Barameter - People and Corruption: African Survey 2015’ (30 November 2015) - “TI Report (2015)”
[xvii] TI Report (2015), p.22
[xix] TI report, p.23
[xx] ibid; cf. Samuel Kimeu (Chief Executive Officer at Transparency International Kenya), ‘Levels and Trends of Corruption in Kenya’; George Ogalo (Institute for Study of African Realities, Africa International University) and Peter Marsden (Concordis International), eds. Corruption and its Consequences in Kenya (Nairobi: Concordis International: November 2013)
[xxi] Plessis, Anton du. ‘Corruption in Africa violates human rights. Why do we tolerate it’ - The Guardian - https://www.theguardian.com/global-development/2016/sep/16/corruption-africa-violates-human-rights-fuels-radicalism-why-do-we-tolerate-it [Date: 16 September 2016, Accessed: 2 September 2017]
[xxii] Fannin, Zach and Schlifrin, Nick. ‘The average city dweller in Kenya pays 16 bribes a month’ - USA Today - https://www.usatoday.com/story/news/world/2016/05/24/average-city-dweller-kenya-pays-16-bribes-month/84853256/ [Date: 1 June 2016, Accessed: 2 September 2017]
[xxiii] Mungai, Kibe. ‘The Obstacles in the Fight Against Corruption in Kenya’. An essay collected within ‘Anti-Corruption and Good Governance in East Africa: Laying Foundations for Reform’, edited by Tom O Ojienda, Law Africa Publishing (K) Ltd, Nairobi, 2007, p.175
[xxiv] George Ogalo (Institute for Study of African Realities, Africa International University) and Peter Marsden (Concordis International), eds. Corruption and its Consequences in Kenya (Nairobi: Concords International: November 2013), p.3
[xxv] cf. Exodus Chapter 20, verse 17; Psalm 10, verse 3; The Gospel According to Mark - Chapter 10, verses 34-36
[xxvi] Piper, John. ‘The Ultimate Essence of Evil: The Majesty of God, the Triumph of Christ, and the Glory of Human Life’ - Passion Conference 2017, Atlanta, Georgia. - https://www.desiringgod.org/messages/the-ultimate-essence-of-evil [Date: 3 January 2017, Accessed: 7th October 2017]
[xxvii] The Gospel According to Matthew - Chapter 5, verse 45
[xxviii] The Letter of Paul to the Romans - Chapter 3, verse 20
[xxix] The First Letter of Peter - Chapter 3, verse 18a
[xxx] The Letter of Paul to the Romans - Chapter 4, verses 18-25