Protecting Kenya's Civic Space

This wasn’t how things were meant to turn out. It was so very different 16 years ago, when we sang of how Unbwogable we were and dreamt that Yote Yawezekana Bila Moi. Across the entire governance space, the state was in retreat. By 2002, a true civic space had been created which was evidenced by the flowering of music and arts. Organized civil society could indeed claim a lot of the credit for it through their efforts to advance political rights and freedoms as well to broaden the democratic process.

Fast forward 16 years and the situation is reversed. To understand what went wrong, we have to look back at our history.

According to Wikipedia, “civic space is created by a set of universally accepted rules which allow people to organize, participate and communicate with each other freely and without hindrance and in doing so, influence the political and social structures around them.” From colonial times to the present, organized civil society has played a prominent role in the struggle to create and protect this space from the predations of the state.

In fact, civil society groups were the forerunners of political parties. It was folks like Harry Thuku and organisations like the Young Kikuyu Association and later the East African Association who early on articulated the political visions and programmes, and defined the goals, values and principles that would drive political action for a generation and beyond. Their significance for the civic space lay in the fact that their struggles often went beyond the acquisition of power to encompass respect for fundamental rights, social and economic justice as well as the freedom and dignity of Kenyans as human beings.

After WWII, with a broke Britain beginning to retreat under pressure of such organizations, many in civil society -from journalists to trade unionists to activists- transformed into politicians. By the time independence arrived, civil society organisations had taken back seat. Politicians and political parties were doing the driving. And very quickly, they constricted the space for citizens to communicate freely and influence politics. It would be a pattern with which Kenyans would become familiar.

In the first decade-and-a-half of independence, politics and governance were for the most part left to the politicians. However, the 1980s and 1990s, as donors increasingly conditioned their support on governance reform and democratization, civil society became more vocal. Outfits like the National Convention Executive Council and religious organisations under the Ufungamano Initiative refused to leave constitutional reform to the state. Others, like the local chapter of Transparency International, were determined to hold their own against the government in the anti-corruption space. By the 2002 elections, Kenyans had clawed back many of the freedoms and reclaimed many of the spaces that the colonial state had denied them.

Sadly, though, we made the same mistake we had made 60 years before. Many of civil society’s leading lights switched sides and became politicians, ran for office and actually won. Others were raptured into government via appointment. Organized civil society was effectively decapitated and went quiet. Once again, the civic space was slowly constricted. Soon the Mwai Kibaki regime was sending GSU into the Bomas of Kenya to stop debate on a new constitution, sending masked police into The Standard, teargassing demonstrators and stealing elections.

The same happened in 2013 and 2017. And every time civil society has retreated, the state has expanded with the consequent loss of civic space and the threat to civic freedoms.

Our history has shown that the state will not be reformed from within. Rather it will only be kept accountable by citizens interacting with each other freely within a civic space. The guardians of that space are organized civil society – churches, NGOs, media, trade unions, academia and other institutions citizens establish outside the state. We should thus be worried when civil society stalwarts troop to the state. Journalist-turned-politician, Mohamed “Jicho Pevu” Ali, and his Parliamentary colleagues, Charles “Jaguar” Kanyi from the musical world and trade unionist Wilson Sossion are walking a path many have trod before them. And we now know what comes after.

Holding the state requires powerful actors outside the government and able to challenge it. We should therefore urgently find ways to incentivize the habitation of non-governmental spaces. We must also work to protect the existing spaces where citizens today can congregate and freely interact - especially on the internet and on social media – from a state that is keen on policing them. The fox must not be left to watch over the hen house.

Why Prosecutions Won't End Graft

Anti-corruption crusader and Publisher of The Elephant, John Githongo, writes in the E-review, “Corruption in Kenya isn’t about greedy procurement officers, fiddling civil servants, crooked businessmen, shady bankers, thieving politicians … these players are born of a system of politics and governance that is itself inherently corrupt; one in which the thieves and those who facilitate them thrive.” Understanding this is the key to solving the corruption riddle.

Many times, it has been suggested that graft is a cultural problem that grew out of a supposed “African” tradition of gift giving. Now, it is a good practice to be skeptical every time someone uses the word “African” to imply a uniformity on the continent – and here a healthy dose of skepticism would be justified.

As Joe Khamisi’s history of corruption - Looters and Grabbers – demonstrates, corruption was the gift of colonialism. It was, and still is embedded into the very fabric of the state the British created. The logic of that state was to legitimize the stealing by the few from the many and that is evinced throughout its design.

In fact, Kenya was corrupted even before it became Kenya. By 1907, 13 years before the territory officially became a colony, bribery was already a feature of the nascent state. Khamisi cites Hugh Cholmondeley, popularly known as Lord Delamere, a leader of the British settlers, describing the relations between the public and the new rulers: “Time and time, I have had a native say they were stopped by an Indian policeman. When I asked them how they got away, they always said, ‘Oh, I gave him something.”

Khamisi also describes how corruption seeped from the white colonial establishment down to its African enforcers, the appointed chiefs and policemen. A state built to steal was itself peopled by thieves. As David Anderson says in Histories of the Hanged, “Europeans were as guilty of corruption and malpractice in colonial Nairobi as anyone else, and Africans at the bottom of the colonial racial hierarchy were most often its victims”. The Rose Commission, which was established in 1955 to look “into alleged corruption or other malpractices in relation to the Affairs of the Nairobi City Council” found that “the practice of City Council servants demanding or accepting, and of contractors offering, bribes or, if you prefer, money presents-for services rendered or to be rendered, [was] by no means uncommon”.

Corruption was baked into the state and its templates were established from early on. At the top, the white elite ripped off the state through public projects such as the railway and the construction of public housing, while at the bottom, poorly paid chiefs, members of African courts and police supplemented their incomes by extorting from the people.  As Khamisi puts it, citing David Leonard’s African Successes: Four Public Managers of Kenyan Rural Development, “Through corruption and bribery, chiefs were transformed into willing agents of colonialism and were “implicitly encouraged to use their positions to amass wealth and demonstrate to all and sundry that it paid to cooperate with Europeans.”

In this manner, corruption became institutionalized as a way of doing government business. And when those chiefs and their kids inherited the state from the British, they really did not know any other way to be. Following independence in 1963, the civil service was massively expanded. But the Jomo Kenyatta (Uhuru’s dad) administration was not keen on paying for it. Following the colonial model, in 1971 the Ndegwa Commission recommended allowing them to supplement their wages with private business, which had the effect of legalizing corruption. The looting ramped up and it has been escalating ever since.

Understanding the systemic roots of corruption would allow Kenyans to see that successful prosecutions, while a necessary part of a credible anti-corruption strategy, will not fix the problem. Deterring and punishing the corrupt is no substitute for fixing a system that not only permits, but also rewards graft. Convictions, even in the unlikely event meaningful ones were secured, would be ineffective so long as a third of the government’s budget, some Sh600 billion according to the EACC, continues to be available to be stolen every year.

The fact is, the rewards of corruption far outstrip Kenya’s capacity to punish it. The country’s energies would be better spent in holding political leaders accountable, not just for delivering convictions and harsher sentences, but for shutting down the gravy train. And that will require reforming how the Kenyan state works.

What We Must Make Uhuru Kenyatta Do

“What do you want me to do?”

With that statement, two weeks ago President Uhuru Kenyatta seemed to throw his hands up in resignation. The most powerful man in the land claiming to be powerless in the face of the rampant stealing of public resources that has now become the hallmark of his administration.

It surely does seem that everything the Jubilee administration touches turns to loot. Few of the projects it has initiated over the last 43 months -from laptops for schoolkids to the Standard Gauge Railway to the free maternity programme- have escaped the reek of corruption. Anti-corruption crusader, John Githongo, says it is “by far the most corrupt government in our history”.

And he should know. As head of the Office of Governance and Ethics. he famously blew the lid off the Angloleasing scandal, which annihilated the Mwai Kibaki regime’s anti-graft credentials and earned him death threats and exile. Few will have forgotten how in 2004 the then British High Commissioner, Edward Clay, described the gluttonous Kibaki acolytes as “vomit[ing] all over our shoes”.

It is all so very different from the euphoria that accompanied Kibaki’s electoral triumph and assumption of office a year earlier. Then, it seemed, Kenya was well on the way to slaying the proverbial corruption dragon. Kibaki and his National Rainbow Coalition allies, including Raila Odinga, had built their campaign on an unabashedly anti-corruption platform, promising to end the plunder the country had experienced under his predecessors, Jomo Kenyatta and Daniel Arap Moi.

Their campaign against Moi’s “project” to install Uhuru Kenyatta as his successor, brought together many of the leading lights of the decades-long agitation against the KANU dictatorship (and not a few opportunistic politicians). Their sweeping victory raised expectations for change to stratospheric levels. Imbued with the belief that all was possible, that they were “unbwogable”, Kenyans were arresting corrupt policemen on the street and expecting their new government to start doing the same to corrupt politicians.

However, the revelations of continuing theft in high place coupled with the de facto immunity afforded to Nyayo era thieves, would bring such hope crashing down to earth. And there seems no end to the hangover from those euphoric days, each election has bought a government more corrupt than the last.

How did we come to this?

In their insightful book Why Nations Fail: The Origins of Power, Prosperity and Poverty, Daron Acemoglu and James Robinson identify the nature of a country’s institutions, whether extractive or inclusive, as the primary determinant of its success. But unlike Kenya, where we equate institutions to an alphabet soup of organisations, Acemoglu and Robinson describe institutions as simply the rules, written and unwritten, that influence how systems work. Countries where such rules encourage participation by the masses, distribute political power broadly and subject it to constraint will tend to be successful whereas, as Kenyans can attest to from experience, those where the distribution of power is narrow and unconstrained will end up with systems geared to enrich a powerful few at the expense of the rest.

The primary reason why Kenya’s war against corruption remains little more than words on paper is because we are focused on changing personalities and organisations rather than the rules, or institutions, that underpin the system we inherited from the British colonials. In 1963 it was all about getting rid of the “colonial masters”. Half a century later, it was all about “Moi must go”. As the report of the Truth, Justice and Reconciliation Commission demonstrated, the rules of the game remained mostly unchanged. The government still functioned as a vehicle of plunder, with the only difference being that in place of white oppressors, we had black ones.

The inauguration of a new constitution in 2010 was the first real effort to address this system but here again, form is triumphing over substance. The fact of its passage continues to be hailed as a success (and it is) even as its spirit is crushed. Nominally independent institutions, such as the police and the Director of Public Prosecutions, remain, for all intents and purposes, subservient to the Presidential whim. Parliament, too, is little more than a lackey for the executive. The political sphere still largely excludes participation by most citizens in everyday governance while continuing to be the dominant influence over their lives. Impunity for wielders of political power is still the norm.

Passing the new constitution was just a necessary first step. As at independence, the real work lies in its implementation and in overthrowing the authoritarian substructure of the state to fit the aspirations the document espouses. This is where we are failing. The exclusive focus on prosecutions and convictions (which are necessary) sadly elides this.

It is true that the constitution limits the role of the President in punishing offenders. But this is not the problem. Where the President has been largely absent is in articulating and leading the necessary reform to ensure that the state delivers the system that the constitution he swore to uphold envisages. 

That, Mr President, is what we want you to do.

In the end, however, it is up to the people to insist that their politicians respect the rules and values espoused by the constitution. It is up to us to insist that accountability and transparency rather than secrecy and impunity become the hallmarks of how the public business is conducted. It is up to us to change the political calculus that the Uhuru administration makes.

John Githongo is wrong when he says “the era of fighting graft using public policy reform and technical fixes has ended.” We still need to think through how we make the system work for the masses of the people, and not just for a small elite. But he is right when he says it requires political will. Only what matters is not political will on the part of Uhuru Kenyatta but rather the political will of the Kenyan citizenry to hold him to account.

Sitting Down With The Devil

Kigali is impressive. From its clean streets and new buildings to the ubiquitous sense of safety and order, it is today hailed as a model for capital cities across the continent. Similarly hailed is the Rwandan government, which has transformed the country, phoenix-like, from the ashes of the 1994 genocide into the rising star of Africa.

Last week, a network of bloggers on the continent, of which I am a part, was invited to a brainstorming session in Kigali over how to engage in policy discourses with governments on the subject of supporting digitally-driven innovation across the continent. The Rwandan state has set itself up as a driving force in the field, with its President, Paul Kagame, chairing the board of Smart Africa, which seeks to “accelerate socio-economic development through information and communications technologies”.

Many of the young, globe-trotting, idealistic individuals I met in these sessions were passionate about the possibilities offered by ICT and the need to engage governments in the effort. However, while I did not doubt their sincerity, what I found disturbing was the seeming blindness to the dangers such engagement may pose.

At about the same time, 750km to the east, yet another State House Summit was getting underway in Nairobi. According to press reports, President Uhuru Kenyatta had invited his administration’s “harshest critics” to a televised pow-wow over corruption. Two specified critics -John Githongo and David Ndii- did not honor the summons earning themselves a Presidential rebuke and much ridicule from ruling party supporters. But I think the two experienced hands had seen something that my friends in Kigali seemed unwilling to acknowledge: that “engagement” is a two-way street. 

In Kenya, as Ndii noted in an article explaining his absence, the problem is neither that government is unaware of corruption nor that it is ignorant of the questions raised about its custody of public finances. Its own agencies have documented much of this. The real problem is the lack of will within the governing elite which perpetrates the looting to do something about it. There is no appetite not just to prosecute friends and political allies, but more fundamentally, to restructure the state to eliminate the opportunities and impunity that incentivize graft.

In such an environment, the State House “engagements” would be of limited utility for those demanding reform and accountability while gifting the government a massive propaganda opportunity to burnish its anti-corruption credentials. In the end, the absence of Githongo and Ndii forced the spotlight back on the government’s lack of action rather than on its rhetoric, which dissolved in a flurry of buck-passing led by the responsibility-ducking Commander-In-Chief, himself. #CryBabyPresident was how Kenyans on Twitter summarized it.

In Kigali, there seemed little understanding that the problems of poverty on the continent do not spring from a lack of knowledge or innovation but rather from a lack of accountability and democracy. The poor Africans my friends sought to help were largely impoverished by the very governments they sought to engage; who were stealing from them, fueling the conflicts that displaced them and denying them a say in decisions affecting their lives. Apart from Kagame, the Smart Africa Board is peopled by such luminaries as Uganda’s Yoweri Museveni, Gabon’s Ali Bongo, South Sudan’s Salva Kiir, Chad’s Idriss Deby, and, of course, Kenya’s Uhuru.

Engagement with such a gang risks affording them an opportunity to hide their sins under the carpet of innovation and broadband access. It risks moving the spotlight away from what they are actually doing to their own citizens and focusing it on their rhetoric of progress and inclusion. It is why, when addressing the meeting in Kigali, Jean Nsengimana, Rwanda’s Minister for Youth and ICT, could bemoan the fact that the continent was not creating billion-dollar “Unicorns” while ignoring that it was very proficient at creating billion-dollar politicians.

In fact, all the talk of transforming communities and making them smarter and more innovative seems to completely elide the fact that it is governments and the states they serve that require transformation. There is little talk of who actually benefits from the ICT Hubs and events established and held across the continent, most in the wealthier parts of capital cities.

And speaking of capital cities, with all its impressive progressive, it is easy to miss what Kigali hides. The unspoken conversations, the disappearances and assassinations, the rounding up of street families so visiting potentates can enjoy a view unblemished by evidence of failure. Yes, Kigali is safe, but safe for whom? Yes, it is clean, but clean for whom? Yes, it works, but works for whom?

These are questions any who purport to be interested in the welfare of the continent’s people, rather than that of “Africa” must be willing to engage with. And while the answers may not necessarily preclude engagement with governments, they will certainly allow us to choose forums that are more likely to deliver real action and change for the people rather than a megaphone for their governments.   

The Eating Season Is Here

I have a theory about why our political parties engage in obscene shows of wealth in the midst of the dire poverty that pervades Kenya. In a country where politics has been reduced to an eating competition, politicians must demonstrate to their supporters that they are capable of laying on the buffet.

From the reported 2 billion that the Jubilee Party spent on its coming out party to the fleet of swanky new buses that CORD has unveiled in Mombasa ahead of its ten-year anniversary, the political coalitions are attempting to outdo each other in parading their wealth. During the last campaign season, helicopters became an indispensable asset and as we approach the 2017 poll, it is clear that no politician worth his salt will be seen dead without one. Their importance to the political class can be seen in the oft-cited fact that they are exempted from VAT even when school books aren’t.

For the people, such displays of opulence are meant to signal that the season for feasting has begun. In return for a seat at the table of state where the country is gobbled up, the politicians will dispense their largesse. The choppers and Prados, the buildings and buses, are the promise of that.

The limits on campaign finance spending recently announced by the Independent Electoral and Boundaries Commission will do little to diminish appetites. With Presidential candidates each officially allowed to spend up to Sh5.2 billion, candidates for 337 Parliamentary seats dishing out up to Sh30 million each; potential Governors and Senators for the 47 counties each allowed to serve up Sh443 million, and folks competing to be one of the country’s 2,258 MCAs offering up to Sh10 million each, it is clear that there will be plenty of money rolling around. And that’s only what they officially spend.

Unofficially, you can expect much more will be on offer. Given the ambiguity surrounding the IEBC regulations and lack of clarity about how they are to be enforced, it is unlikely that there’ll be much of a deterrent to exceeding the stated limits. For example, the period covered by the new regulations is the six months prior to August 8, 2017, the date of the next General Election. But five months ahead of the February 8 start date for the official campaign period, the country is already firmly on an election footing and money is already being spent without IEBC oversight.

Clearly, many, many billions will be poured over the next year or so.

The question is: What will these billions be buying? And sadly, for many, it will be silence and acquiescence. For most Kenyans, whose lives have been blighted by governmental neglect, theft and oppression, this is their one chance to get something back from the system which only seems to take. They know, from previous experience, there is little chance that all the promises that candidates and manifestos will make will amount to anything after the polls. They know that the system which their vote will legitimize is already rigged against them; once the politicians are in office, the opportunity to hold them accountable effectively disappears.

For example, although the constitution guarantees that the electorate has the right to recall an MP before the end of his term, it also effectively defeats its purpose by saying those very MPs will “enact legislation to provide for the grounds on which a member may be recalled and the procedure to be followed.” Predictably, the MPs made sure it would take nothing short of a miracle for them to so lose their seats. The law is currently being challenged in court.

For many, the electoral period is their only chance to “eat”. And in return, they will be expected to stay silent as the politicians steal and kill in their name. “You took our money and voted for us therefore you are complicit in our robbing you”.

But it is all little more than a ruse; a false bargain since the people are essentially forced to negotiate with a gun held to their heads. The displays of opulence that inaugurate the start of the eating season serve to hide the violence of the dispossession under a veneer of civility and mutual consent. “Willing buyer, willing seller” as Uhuru Kenyatta famously described it in 2013.

Remember that as you take your place at the national buffet. Bon Appétit.

Whom Should Kenyans Blame For The Faltering War On Corruption?

The resignation of Philip Kinisu as head of the Ethics and Anti-Corruption Commission caps off yet another week during which corruption and the faltering war waged against it have dominated newspaper headlines. In the aftermath of the Olympic games, ironically Kenya’s most successful ever judging by the number of medals our athletes gathered, revelations of theft and joyriding have demonstrated that Kenyan accomplishment comes in spite, rather than because, of their government.

Yet listening to Kinisu’s predecessor, the former head of the Kenya Anti-Corruption Commission, Dr PLO Lumumba, it is these very Kenyans who are to blame for the mess we are in. “Kenyans as a society have not demonstrated that they want corruption to be fought,” he claimed on Wednesday evening on the Jeff Koinange show. 

This was perhaps not a surprising sentiment, given how Dr Lumumba was himself hounded out of office for trying to do his job. But as understandable as it may be, it is nonetheless profoundly misguided. He confuses Kenyan society for the state and Kenyans for those who claim to represent them but actually are little more than parasites sucking the lifeblood out of them. It is the equivalent of claiming that the fiasco in Rio was evidence that Kenyan athletes are corrupt.

Sadly, there is a failure within official discussions of corruption to distinguish between perpetrators and victims of corruption; a tendency to fault the latter for their victimisation. In 2005, then Justice Minister, and now Senator, Kiraitu Murungi, outraged many when he compared criticism of the government's fight against corruption to "raping a woman who is already willing", a remark he was to apologize for a few days later. It is unclear why Dr Lumumba, and his fellow guest on the show, publisher and columnist Barrack Muluka, appear to think that it is less outrageous to suggest that Kenyans are willing participants in the plunder of their resources.

As I have previously discussed on this column, studies on the nature of corruption have established that the vast majority of bribes paid by Kenyans are extorted by government officials for access or expedition of services that citizens are already entitled to. Reversing this violation of public trust will not be accomplished by appealing to the victims to change, just as rape culture will not be vanquished by asking women to behave differently. Rather it is the perpetrators and their enablers and protectors within government that must bear the burden of punishment and change. In fact, later in the show, Dr Lumumba attributed the relative success of anti-corruption efforts in Nigeria, Botswana, Mauritius and Rwanda not to changes in societal attitudes towards graft, but to the willingness of their respective heads of government to “lead from the front”.

In Kenya, there is little sign that President Uhuru Kenyatta and his Deputy, William Ruto, are doing likewise. On the contrary, a survey of public perceptions of corruption recently released by the Africa Centre for Open Governance indicates a majority believe their offices to be the most corrupt. The fact is it is not the ordinary mwananchi who lacks the will to fight corruption but rather, the very people within government tasked with carrying out that fight. 

The reasons for this are not hard to fathom. The political class, which benefits greatly from the vice, has the most to lose from any serious attempt to stamp it out. It is they, not ordinary Kenyans, who would be the primary targets of any such enterprise and can thus be relied upon to pull out all the stops to ensure that the EACC remains little more than a paper tiger. Whoever elects to take on the job of fighting graft must expect that he or she will be an enemy of the governing elite and, unlike Kinisu, must not present them with easy avenues of attack. 

However, and more importantly, we must all realize that the war on corruption will not be won by scapegoating its victims but rather by harnessing their collective anger and outrage and directing it against the perpetrators. This means that the onus and pressure must be focused squarely on the person best placed to do this, the instrument of our collective force and he whom the constitution describes as the symbol of our national unity: President Uhuru Kenyatta.

The Price Of A Good Kenyan Name

Kenyan media is going through a torrid time. Once described as one of the most vibrant and critical on the continent, it is today looking like little more than a shadow of its former self. From the firing, reportedly at the behest of the state, of editors and journalists at the country’s two leading newspapers, The Daily Nation and The Standard, to the anodyne and superficial coverage of governmental malfeasance, media in Kenya appears to have raised the white flag of surrender.

It must be particularly humiliating for our veteran journalists, many of whom cut their teeth standing up to and exposing the ills of the dictatorship of Daniel Arap Moi only to see their publications succumb to the supposedly more democratic regimes that succeeded it. It is a sign that despite all the reforms that have been enacted, including the adoption of a new progressive constitution, little has changed in the fundamental dynamic between the rulers and the ruled. Kenya still very much remains a country of wenyenchi and wananchi.

And every so often, when one peers behind the timid headlines, one is reminded of this.

This week, the newspapers reported on the now “retired” Mr Moi apparently “breaking his long silence” to warn that corruption under the Uhuru Kenyatta administration was “getting out of hand” and to “urge Kenyans to help the government to wage the war on graft.” Now, the irony will not be lost on many Kenyans: the man who presided over a 24-year kleptocracy, and who is still allowed to enjoy the illicit fruit undisturbed, today calls corruption “this bad thing”. Talk about glass houses and throwing stones!

However underneath the comical rubbish that is Mr Moi’s condemnation of graft, lies a gem. For the aging kleptocrat unwittingly offers valuable insight into how Kenya’s ruling and still thieving elite sees its own corruption. And why so little has changed since he left power.

“You know corruption is bad . . . I am appealing to all Christians to help the government eliminate this bad thing… If you are [a] senior government [official] anywhere, please help in stopping this bad thing that is giving the government a bad image,” he is reported as saying.

Notice that Mr Moi is not particularly distressed by the misery graft has visited on Kenyans. The fact that corruption has destroyed lives and livelihoods, robbed kids of their future and impoverished millions pales into significance compared with the fact that it has given "the government a bad image". Further, the talk of it "getting out of hand" appears to imply that some level of abuse of public office for private gain is fine. Graft, it seems, is only bad when many officials do it, causing government to get blamed. Mr Moi appears to pine for the good old days when the eating was "in control".

In his eyes, corruption is not a vice to be eliminated. It is a resource to be managed lest over-exploitation causes disaffection, either among the people or, more likely given his history, among the donors. Thus the problem is not that corruption kills or impoverishes. The real crime is in exposing it and giving government "a bad image".

One only has to compare this to the prevailing rhetoric from the Kenyatta administration and its communications minions, to appreciate that it is the prevalent view among our ruling elite. Late last year, Kenyans loudly demanding a proper accounting of the Kshs 200b the government had borrowed via a Eurobond were warned that their questions, not the government’s inability to provide convincing answers, were sabotaging the economy. On social media sites, criticism of government is being equated with a destructive negativity, and the media is constantly being urged to opt for “positive” news.

Thus coverage of the plunder of Kenya’s wildlife is more likely to steer clear of the government’s role in protecting poachers and to focus attention on the fact that President Kenyatta has invited A-list Hollywood celebrities such as Leonardo DiCaprio to witness the burning of Kenya’s ivory stockpile.

Similarly, GoK has tended to deal with insecurity and terrorism primarily as threats to its image, not as threats to the lives of Kenyans. The failure to institute a promised public inquiry into security lapses and response failures linked to the September 2013 Westgate attack can be attributed squarely to the imperative to protect government’s “good name” and avoid accountability. A similar dynamic is at work in the two-month silence over the casualties of the Al Shabaab attack on a Kenyan-manned AMISOM base in El Adde, Somalia.

The effective binning in Parliament of the report of the Truth, Justice and Reconciliation Commission also illustrates the elite belief that historical injustices can be solved via transient political arrangements and empty rhetoric about "restorative justice".  

It all boils down to the conflation of Kenyans’ troubles with those of its politicians. In this formulation, citizens don't have bread-and-butter issues. They have "political problems" requiring "political solutions". An ethnic community’s welfare is improved, and its poverty vicariously eradicated, by granting its political sons opportunities to “eat” public resources. And conversely, it is impoverished by their exclusion from the feast.

Thus the response of the Jubilee government to allegations of corruption, which has essentially been to point out that the leaders of the opposition CORD coalition are similarly implicated, is entirely understandable. Because, as Mr Moi has revealed, the problem is not that public money has been stolen, but that the government is getting blamed for it. And the reason why so little has changed since he left power is that this continues to be the problem Kenyan politicians are grappling with. 

They don't want to change the system. They want their turn to eat.

Is the problem with Kenya really that it is full of Kenyans?

Lately, many of the diagnoses that have been offered on the causes of Kenya’s problems, from corruption to terrorism, have sought to lay the blame collectively on its citizens. “It begins with you” is a common refrain heard whenever blocked drains and poor city planning cause flooded roads or whenever governmental malfeasance or incompetence permits terrorists to wreak havoc. Last year, a headline to Michela Wrong’s article in Foreign Policy declared, “Everyone Is Corrupt in Kenya, Even Grandmothers”.

Now, of course, we must be wary of national stereotypes which, more often than not, offer few insights and are reflections of the prejudice of those spouting them. After all, the Japanese and German societies were once thought to be lazy, dishonest and poor time-keepers, with cultures singularly unsuited to the requirements of development.

Still, the idea persists that the Kenyan government is reflective of the will, inclinations and culture of the population, and that the reasons for its failures are really to be found, not in the persons occupying high office, but in the society they spring from. So there is talk of corruption being a cultural problem and a bewailing of Kenyans’ laziness, their supposed propensity to litter and their inability to make intelligent choices at the ballot box as the primary causes of their misery.

This idea has several problems. The most obvious is what we mean by Kenyan culture. The country is itself a relatively recent colonial construct with at least 42 communities living within and several dissected by its artificial borders. Clearly, these communities which had varying cultures and traditions, did not voluntarily unite to give birth to the state. Rather it was imposed upon them.

The truth is, Kenyans did not create the state. The state created them. Kenyan culture is similarly a creature of the state, despite the aspiration to ground it in the ancient roots of the communities that reside in Kenya. If, for example, Kenyans are corrupt, it is because their government is corrupt, not the other way round.

But is it true that Kenyans are generally corrupt? In a sense, we are, in the words of Eric Wainaina, “nchi ya kitu kidogo". A 2001 survey by the Kenyan chapter of the global anti-corruption watchdog Transparency International, estimated that the average urban Kenyan paid 16 bribes every month to both public and private sector institutions. However, a closer look at these findings reveals that the vast majority of bribes are paid to state functionaries, with the private sector, at least at that time, recording low levels of sleaze. Two-thirds of interactions with public institutions “involved bribes or costly negative consequences if one declines to bribe.”

According to the more recent 2014 East African Bribery Index, most Kenyans pay bribes to government officials either to access or expedite a service they are entitled to. Only about a quarter are paid to avoid problems with the authorities, access a service to which one was not entitled to or to avoid paying the full cost of the service.

Far from being a cultural problem, so-called “petty" corruption, and its bigger and much more destructive brother, "grand" corruption, are actually a form of extortion by public officials from the populations they are supposed to serve. It is telling that those least able to afford it, the poor, the unemployed, those with low income and low levels education, are the ones significantly more vulnerable to such extortion.

This is hardly surprising when one looks at the origins of the state itself. It was established by the colonial authorities to facilitate and support the extraction of wealth by a few from the many. As the report of the Truth, Justice and Reconciliation Commission showed, it was not fundamentally reformed following independence from Britain in 1963. Instead, one bunch of thieves was replaced by another which retained and even entrenched the system of illegitimate acquisition. Government has thus served as the quickest and most sure route to wealth accumulation, a means of benefitting from, not solving, problems afflicting ordinary Kenyans.

The idea of Kenyans as generally corrupt or of Kenyan society as rotten does not gel with the facts and simply serves to obscure the real nature and source of corruption. As Ms Wrong put it, “although the problem is in fact one of elites writ large, Kenyan corruption is traditionally viewed in terms of economic rivalry among the country’s main ethnic groups.” Blaming Kenyans, or Kenyan culture is in reality blaming the victims for their own immiseration, and must be seen for what it truly is: a cover for impunity.

Similarly, blaming Kenyans for the spike in terror acts or for the flooding in our cities, is meant to shift culpability for failures to act on the intelligence, to enforce the rule of law, to protect the public and prevent the plunder of public resources, from the government to the people who suffer the consequences.

The small and exclusive club of elites who control the state is primarily responsible for the many ills afflicting the nation, not the people they prey on. Corruption is woven into the very fabric of the state they inherited and refuse to reform. It is not just its raison d’etre but also the primary means for rewarding loyalty. In return for their support, politicians, bureaucrats and even police officers get opportunities to line their pockets at the public’s expense.

The most important attempt to reform the relationship between the people and the state was the adoption of a new constitution in 2010. But even that has borne mixed results. While devolution of services has undoubtedly resulted in more services delivered to previously under-served populations, the logic of public office as a means of accumulating wealth and dispensing patronage remains.

Our elites have proven particularly resistant to  constitutional restraint and, in the end, it will be up to Kenyans in general to force them submit to it. It is we who must uphold the constitution's primacy. But we do not achieve this by accepting common responsibility for individual crimes. Instead, we should hold public officials to account, and resist the effort to socialize blame for their sins.

The Leadership Is The Problem. Not Kenyans.

The death of Lee Kuan Yew, architect of Singapore’s rise from a corrupt economic backwater to one of the globe’s most prosperous and clean societies will undoubtedly spark debate across the world on the lessons that can be drawn from his successful efforts to eliminate corruption. Across Africa, he has been lionised and some, particularly Rwandan strongman Paul Kagame, have sought to replicate his autocratic methods with varying degrees of success.

In Kenya, which is consistently ranked as one of the most corrupt nations on earth, many have pined for a benevolent dictator in the mould of Lee Kuan Yew. The argument has been advanced that the country’s myriad security and economic problems cannot be addressed in the context of a free-wheeling liberal democracy. President Uhuru Kenyatta regularly proclaims his administration’s need to be freed from the constraints of constant political competition in order to focus on the imperatives of development and economic growth.

However, this misses the crucial lesson from Singapore. It is true that Lee Kuan Yew brooked little dissent and that his rule was characterised by a clampdown on political freedoms as well as harsh social controls. It is equally true that he ruled for an inordinately long time, turned Singapore into a de facto one party state and that his family, especially his children, have done pretty well for themselves: one son is the current prime minister, another heads the Civil Aviation Authority and his a daughter is the director of the National Neuroscience Institute.

But in this, Singapore is not very different from, Kenya and much of Africa, which have similarly experienced the diminution of civil and political freedoms though these have tended to entrench, not alleviate poverty and the looting of state resources. The crucial difference is not that Singapore was a dictatorship and Kenya wasn’t. It was in the quality of the leadership. Simply put, Lee Kuan Yew walked the talk on corruption. Where he eschewed graft and actively worked to prevent the capture of the state for the benefit of a corrupt elite, successive Kenyan presidents have used the state as a means to enriching themselves, their families and rewarding their cronies.

Compare the records of the two countries’ anti-corruption agencies. Lee Kuan Yew inherited the Corrupt Practices Investigation Bureau from the British and transformed it into a formidable graft-fighting watchdog which has taken scalps among high ranking government officials including cabinet ministers. According to a 2013 study commissioned by the Prime Minister’s office, in the previous five years, the CPIB had on average opened 39 cases involving public officers each year with two-thirds resulting in prosecution or disciplinary proceedings.

By contrast, Kenya’s Ethics and Anti-Corruption Commission has only prosecuted 22 cases in the last three years, a negligible fraction of the nearly 10,000 complaints it received. And it lost most of these, securing only 3 convictions. Further, in the last half century, despite the fact that dozens of investigative commissions have thrown light on hundreds of cases of corruption, not a single cabinet minister has ever been convicted.

Currently, Kenya is prosecuting 13 suspects, including two former Finance Ministers over the Anglo Leasing scam which cost the taxpayers nearly $1 billion in fictitious supply of security related equipment. However, given the government’s past record, few expect that this will result in convictions. A “list of shame” released in 2006 by then Justice and Constitutional Affairs Minister, Martha Karua, had implicated at least 28 senior officials in the Mwai Kibaki and Daniel Arap Moi administrations including then Vice President, Moody Awori and current Deputy President, William Ruto. Further muddying the waters, the EACC and watchdog committees in Parliament today find themselves embroiled in allegations of taking bribes to cover up the involvement of senior administration officials and businessmen in the theft of public resources, including in the Anglo Leasing investigation.

The fact is while the Kenyan elite talks a good game, it has not demonstrated any interest in battling graft. They do not see the raison d’etre of the state as uplifting the lives of ordinary Kenyans but rather as a means of preying on them. Instead of fundamentally reforming the parasitic colonial system, the elite have instead sought to blame the victims, to convince Kenyans that they are the problem, their culture, their stupid and tribal politics, their willingness to pay bribes. In effect, the elite has argued that Kenyans are in fact stealing from themselves, impoverishing themselves and, in turn, scapegoating those in power.

 Lee Kuan Yew’s record against corruption is not a lesson in what authoritarianism can achieve and democracy can’t. If it were, African countries would head the corruption indices. It rather teaches that what matters is a genuine commitment within the leadership to eradicating the vice and to building systems that, to paraphrase the former Singaporean Minister for Home Affairs, Ong Pang Boon, "reduce opportunities for corruption, make its detection easier, deter those susceptible to it and severely punish those who engage in it".

In truth, Kenyans and Africans in general, are no more prone to corruption than are Singaporeans. Their leadership, however, is. And that is the problem.

The House of Graft

“The oppressed are allowed once every few years to decide which particular representatives of the oppressing class are to represent and repress them,” said Karl Marx. The idea that members of parliament are part of the “oppressing class” and represent themselves not their constituents appears to find much support in the conduct of Kenya’s legislators at all levels. Their greed and prioritization of self-enrichment above all else and to the detriment of those they are meant to serve is legendary. Yet Parliament has also served as a forum for exposing and, if not exactly combating corruption, at least curtailing some of its more egregious manifestations.

A 2006 Case Study on the Role of Parliament in the Fight against Corruption: The Case of the Kenyan Parliament by Dr Fred Matiangi, the current Cabinet Secretary for Information, Communication and Technology, traces the roots of corruption in Kenya to the colonial era. “The colonial government rarely understood the traditional African cultural practice of leaders’ entitlement to gifts and favors from their subjects, the measures it took in Kenya … smacked of abuse of power,” he writes. Yet it wasn’t until the sunset of British rule that the Legislative Council, the fore-runner to today’s Parliament, addressed corruption as an issue. In 1956, the Prevention of Corruption Act, was, according Dr Matiangi, “corruption became an issue in legislative affairs (albeit, in a superficial way).”

One would probably be excused for asking why it took half a century for the Council to discover corruption. A possible explanation could be found in the fact that for most of its history, the Council simply served as a rubber stamp for the colonial government. In this, it presaged the subservience of Parliament to the Executive that was to characterize much of independent Kenya’s history and to create room for the theft of national resources.

The period following independence saw two trends that were to exacerbate and entrench corruption in government and in the National Assembly. The recommendations of the 1971 Commission of Inquiry into the Public Service Structure and Remuneration (also referred to as the “Ndegwa Commission” after its chairman, former Head of the Civil Service and later Governor of the Central Bank of Kenya, Duncan Ndegwa) allowed public officials, including MPs, to participate in private business which created a host of conflicts of interest by blurring of the lines between private and public spheres. Secondly, Parliament was progressively stripped of its powers of oversight over government and effectively cowed into silence.

As Dr Matiangi notes: “An incestuous relationship would thus emerge between public service and private interests that would undermine any interest in integrity issues. Studies have shown, for instance, that there is a correlation between wealth and politics in Kenya. Those who play active and influential roles in politics are the well-to-do, or they become well-to-do by virtue of office.”

With their watchdog role compromised, the Parliamentary committee system ground to a halt and public service was transformed primarily into an avenue for personal enrichment and for the looting of public resources. Politics paid lip service to the poor but in reality excluded them and privileged the interests of the wealthy while increasing polarisation and conflict, and driving the honest and meritorious out of public life. MPs who dared to question this corruption of our politics, like George Anyona, Bildad Kaggia and JM Kariuki, were ostracised, detained and even murdered.

Following the return of multi-party politics in 1992, Parliament begun to reassert itself but in a Jekyll and Hide fashion. On the one hand, the National Assembly became an important forum for the exposure of mega-corruption scandals. The two largest scams, Goldenberg and Anglo Leasing, were both brought to public attention by the tabling of documents in the House. In 1993, Paul Muite and Anyang Nyongo blew the lid off the former after they received documents from Central Bank whistleblower, David Munyakei. Anglo Leasing was exposed when opposition MP, Maoka Maore, tabled documents showing that the Offices of the President, the Vice President, the Ministry of Home Affairs, and the Treasury were in the process of illegally procuring passport-issuing equipment, in which the country stood to lose about KSh 70 billion.

Further, in the wake of the Goldenberg revelations, Parliament established an Anti-Corruption Select Committee (or the “Kombo Committee,” as it is commonly referred to, after its Chairman, Musikari Kombo) which was charged with identifying the causes, extent, and impact of corruption in Kenya as well as the key perpetrators and beneficiaries thereof. It was also to recommend sanctions against such individuals and recover the lost public property.

The Kombo Committee represented the first attempt to unearth and document the scale of corruption in the country. Its report showed that more than half of all tax revenue was misappropriated and its now-forgotten List of Shame not only implicated many in the governing elite, but set the trend for corruption-related Parliamentary “naming and shaming.” The current list of the corrupt compiled by the Ethics and Anti-Corruption Commission, whose existence was revealed during President Uhuru Kenyatta’s State of the Nation address to Parliament, follows in the tradition set by the Kombo Committee as did the Anglo Leasing List of Shame unveiled a decade ago by then Justice Minister, Martha Karua.

However, another thing these lists have in common is that they rarely lead to serious prosecutions, let alone convictions. So even as Parliament continued to assert itself, its investigations of corruption generate sensational headlines and embarrassment for government officials, they do not, as a rule, result in punishment. In fact, sometimes Parliament has itself purported to clear suspects such as former Finance Ministers, George Saitoti in Goldenberg and David Mwiraria in Anglo Leasing.

Though much of the initial focus was on corruption in the executive branch which at the time admittedly included many MPs, the conduct of the entire legislature has also been firmly in the spotlight. One of the ways legislature was kept under control was via a deliberate policy of keeping MPs’ pay and benefits low. The President could offer opportunities to supplement this income via ministerial appointments and, by 1989, half the members elected to Parliament occupied ministerial positions, eroding the distinction between the holders of elective office and the administration.

As the Nyayo dictatorship begun to be rolled back, one of the first objectives of the MPs was to take control of their calendar as well as their remuneration. Changes which gave Parliament control of its calendar and budget were pioneered by Peter Oloo Aringo, a former government minister, at the end of the 90s. Ever since, raising salaries has been a great strategy to unite MPs and trump executive opposition. It is also a deeply unpopular strategy with the public who are wont to see MPs as greedy and unprincipled, insensitive to the plight of those whose taxes pay for their extravagance –a situation that is not helped by MPs’ reluctance to themselves pay tax.

Repeated salary hikes have multiplied MPs’ minimum pay by a factor of 10 to just over US$ 10,000. This in a country with a poverty rate of up to 42 percent outraged many in the Kenyan public who saw it as a form of corruption – the abuse of public office for personal gain. By 2013, Kenyan legislators were considered to be by far the best paid in the world relative to per capita GDP.

One reason for MPs constant obsession with their pay is that despite the introduction of devolved funds and county governments, MPs are still expected to contribute to their constituents’ expenses such as school fees and burial expenses. Thus their pay serves also as a resource for bribing voters.

In addition, as Parliament became more assertive, there was greater interest from businesses looking to influence policy or legislation. “No one lobbies a weak legislature, but as legislators’ authority over policies increases, so will attempts to influence them,” wrote Dr Matiangi. This led to the much-publicized “cash for questions” allegations, where MPs were alleged to be induced by cash rewards to ask particular questions in Parliament.

For all the money that Kenya has thrown at the problem of legislative independence, that freedom has not necessarily translated into a more responsible and effective Parliament. If anything, it has proven that one cannot buy integrity.

Perceptions of the MPs personal integrity have worsened. A September 2005 nationwide survey revealed that more than 8 in 10 believed some, most or all MPs were corrupt. Legislators were second only to the police in perceptions about public corruption. A 2008 survey showed that less than half of the population had any meaningful trust in Parliament.

In terms of legislative output, both quantitatively and qualitatively, it is questionable whether higher pay has improved MPs’ work ethic. In 2013, Alphonce Shiundu, outgoing chairman of the Kenya Parliamentary Journalists Association said that the trials of President Uhuru Kenyatta and Deputy President William Ruto at the International Criminal Court, as well as a push to further enhance their pay –in the process ignoring public outrage and swatting aside attempts by the Salaries and Remunerations Commission to revise their terms- dominated the agenda of Parliament. “Their goal was to protect the interests that put them there,” he says. “If they were actually working for the people, their attention would be on different things like the Capital Markets Authority which has not had a chief executive for 18 months.”

The new constitution has gone some way to reducing the opportunities for Parliamentary graft. Dr Matiangi identified three ways in which MPs were vulnerable to corruption. First, as noted above, MPs who became ministers gain access to resources far beyond those of backbenchers, and the enticement to use them for personal and party purposes can be very great. Second, MPs’ control of their own pay as well as the Constituency Development Fund provided greater opportunities for corruption. And finally, Parliament’s core legislative and watchdog functions and its greater role in the national budget-making process, while healthy, also increase the likelihood that individuals and organizations will attempt to influence public policy by providing MPs with private benefits.

The first two have effectively been eliminated. MPs cannot join the Executive unless they first resign (as did Joseph Nkaissery), their pay is now determined by the Salaries and Remuneration Commission and a court has recently ruled CDF unconstitutional. However, as the scandals currently bedevilling several Parliamentary committees demonstrate, there are still opportunities for bent MPs to make a quick buck.

Dr Matiangi proposed “sunshine as the best antiseptic” and suggested opening up, not just plenary sessions, but committee meetings to the press and public. This would indeed be a great start. Laws on public disclosure of contributions and gifts would also help as would better resourcing of Parliamentary reporters to enable them sniff out and chase down graft. In keeping with the “sunshine as antiseptic” theme, Kenyans should also insist on amending the law to make declarations of wealth by public officials available for public inspection.

When it comes to punishing corruption, it is important that MPs are not allowed to hide behind their in-house processes. The scandal engulfing the Parliamentary Accounts Committee, for example, seems to be primarily dealt with by the Powers and Privileges Committee, a case of Parliament investigating itself. Neither the EACC nor the Office of Public Prosecutions nor the Police appear to have taken any interest. As a society, we must insist that MPs are held to the same standard as all other public officers.

More importantly though, it is important that we seek to reset the basis and objectives of our politics. It must become about finding solutions to our common problems rather than personal enrichment at the cost of everyone else. We should not only eliminate the opportunities for graft but also place integrity and the Kenyan people at the heart of public service. This will require that we reflect not just on our failure to reform the colonial history of corruption, but also on the policies and actions of the post-colonial governments that have entrenched the vice in our body politic.

It's Not Too Late For Kenya To Look Back

Grand corruption is back in the headlines. Newspapers and broadcasts today are full of unsavoury details about accusations of bribery bedevilling the committees of Parliament, questions on the Nairobi Governor’s past as CEO of the troubled Mumias Sugar Company and the infighting at the Ethics and Anti-Corruption Authority over the alleged tampering with files relating to the Anglo-Leasing scam. However, my question is: Why did the issue ever leave the front pages?

The fact is, graft, the single issue which has been the scourge of regimes since independence, never went away. We simply stopped paying attention. Sure there have been indicators of its ubiquitous presence all along but we have been encouraged to see these as isolated signs. President Uhuru Kenyatta has urged us to focus on “development” and declared the existence of the mythical “War on Corruption.” And most have seemed content to take him at his word.

No longer.  It is increasingly clear that the vice has infected almost every aspect of public life. Even the institutions meant to fight it have themselves not been immune. This is proof positive that the problem is not one of a few bad apples but is systemic. Corruption is not just deeply ingrained in our modes of governance. The misappropriation and theft of public resources for private gain is part of the entire ethos underlying the system we inherited from the British. 

That failure to fundamentally reform that system is at the heart of our current woes. However, we have steadfastly refused to consider our past as a nation, the choices that were made and the consequences they have borne. We keep demanding investigations and prosecutions but are constantly at a loss to explain why these, even in the rare occasions they actually happen, never lead to satisfactory outcomes. Or why they only seem to serve as smokescreens behind which records are sanitized. 

The Bible tells the tale of the destruction of Sodom and Gomorrah, and the salvation of the righteous. As they flee from the destruction being wreaked on the wicked, they are warned not to look back. One, however, is unable to resist one last glance at the burning hell that she once called home and is instantly turned into a pillar of salt.

Kenya, too, is in flight. We are running from our past and from the iniquity of the last half century. And just like the Lots, the tribal gods who have afforded us escape have warned us not to look back. And so, most are focused on getting as far away as possible, not wishing to disobey, to look back lest the flames consume them. Few harken to the voice described in Anna Akhmatova’s poem, Lot’s Wife, still rings in their ears: "It's not too late, you can still look back.” 

The fate of the unnamed spouse has come down in history as a cautionary tale. She has been dismissed as a vain and materialistic woman who, because of her character, deserved her punishment. Similarly today, those insisting on an examination of the past are branded as self-indulgent narcissists who insist on dragging us back into the mire. 

Despite all the justifications offered for the righteousness of her demise, it is not inconceivable that Lot’s wife was punished for expressing her outrage at the injustice occurring behind her, for daring to question the judgment of Heaven. “And Lot's wife, of course, was told not to look back where all those people and their homes had been. But she did look back, and I love her for that, because it was so human,” said the late American novelist, satirist and graphic artist, Kurt Vonnegut.

Many of those looking back in modern day Kenya are also doing so out of outrage. For me, it is inconceivable the system we so like to defend is anything but flawed, that our terror of the past is anything other than indicator of the superficiality of our nationhood, of the hollowness of our democracy. I am outraged that despite the talk of reconciliation, we were still frightened of truth and that the systems we today employ to ensure the transparency and accountability in our governance arrangements do little to enhance either. I am outraged when the report of the Truth, Justice and Reconciliation Commission, which represents country’s best hope for beginning to confront the reasons for that fear, is systematically perverted to protect the interests of a powerful elite and to cover up their crimes. But most of all, I am outraged at the lack of outrage, that we can so easily give up, that we are so quick to forget, to “accept and move on,” so afraid to demand an accounting.

For those who do turn back, there is a swift rooting to the ground, an inability, even unwillingness, to look away, to ignore what has been seen, to keep silent. Yet most of Kenya ignores their voices and keeps running. But what we are running from –and where we are running to- we cannot say. We can only mouth some vague ideas about “development”. Is it a better place? How can we know? Are we “moving on” to a place of incestuous tribal worship, where we bear new generations only for them to be again attacked further displaced by the very monsters we refused to confront? 

There is a need for us to discard the narratives that keep us from recognizing and dealing with the truth. Our inability and refusal to deal with roots of the economic and human rights violations of the past half century and beyond is the context within which the current orgy of looting and corruption must be seen and addressed.

Saving Kenya From Its Elites Will Take More Than A New Constitution

In an article last month, economist Dr David Ndii expounded on the changes that the country’s 2010 constitution has rung in as well as the reduced opportunities for extraction of rents. He opined that the imperial presidency, traditionally the bane of Kenya’s democracy, had been effectively dismantled and that devolution had dramatically reduced the payoffs for corruption if not exactly ensured accountability. “There just aren’t that many large carcasses for all the big ravenous hyenas in Nairobi. The cheese has moved. The rats have not. They slept through the revolution,” he wrote.

However, recent actions by the government of President Uhuru Kenyatta demonstrate that not only have the rats refused to acknowledge the revolution, they are actively undermining it and re-instituting the networks and power relationships that have sustained them for over half a century.

It is not the first time this has happened.

Just before independence in 1963, the country adopted a new constitution that similarly sought to constrain the power of the governing elites. A 1992 paper by Prof Githu Muigai, now the country’s Attorney General, explained what followed. "The colonial order had been one monolithic edifice of power that did not rely on any set of rules for legitimization. When the Independence constitution was put into place it was completely at variance with the authoritarian administrative structures that were still kept in place by the entire corpus of public law. Part of the initial amendments therefore involved an attempt - albeit misguided - to harmonise the operations of a democratic constitution with an undemocratic and authoritarian administrative structure. Unhappily instead of the latter being amended to fit the former, the former was altered to fit the latter with the result that the constitution was effectively downgraded."

Similarly, over the past few weeks, the country has seen legislation introduced which reverses many of the democratic gains enshrined in the constitution. Growing intolerance has seen laws enacted by the colonial regime to stop the independence movement employed to prosecute two bloggers for insulting President Kenyatta, with one sentenced to a two-year jail term.

Just as his father, founding President, Jomo Kenyatta, progressively downgraded the independence constitution and to recreate the colonial edifice, so today Uhuru Kenyatta is engaged in the process of undermining the 2010 constitution and once again concentrating power within the walls of one office and in the hands of one man.

However, the first President Kenyatta would not have accomplished his fete without the acquiescence and support of the rest of the power elite who were rewarded with opportunities to corruptly enrich themselves. Similarly today, his son needs the help of his fellow elites to reconstitute the system of autocratic kleptocracy and patronage that was perfected by jomo Kenyatta’s successor, President Daniel arap Moi. And that help has not been short in coming.

Dr Ndii reckons the constitution has stripped the Presidency of 80-90 percent of its power and that today the President has to exercise what’s left through influence and not authority. However, that does not appear to be the way things are actually working out. With his coalition controlling both houses, the President faces little opposition from a Parliament that appears more concerned about taking full advantage of opportunities to fleece the public. The hurried and chaotic passage of the security law, along with the Senate’s acquiescence in its own marginalisation, demonstrated just how much it has been transformed into a paper tiger. The judiciary has fared little better. From the craven Supreme Court judgement over the 2013 presidential election to the inaction over regular infringements of its orders, the judiciary has proven itself to be unwilling to court Executive displeasure.

Ditto the National Police Service. After decades of doing the executive’s dirty political work instead of actually protecting the public, one might have expected that they might revel in some independence. One would be wrong. And even before the passage of the security law, there was already a concerted effort to bring the service back under the ambit of the Executive.

The fact is, the constitution may have prescribed a weaker presidency, but when the institutions that are meant to check its power instead opt to collude with it, it can be pretty powerful. Especially as a conduit for and dispenser of patronage, the traditional role the imperial presidency has played for the political elite. And true to form, President Kenyatta has kept the gravy train rolling.

On his watch, government mega-projects, whether it is the dubious $13 billion standard gauge railway or the stalled $200 million project to provide laptops to primary school students, or the nearly $400 million single-sourced national surveillance system, have all been tinged with scandal and controversy. Just a year after his inauguration, the President authorised the payment of nearly $17 million to two shell companies, part of the Anglo Leasing scam which cost the country over $600 million. And just recently came revelations that the government had silently prepared legislation prohibiting public scrutiny of its spending on the military, intelligence and police, after the Auditor General raised queries on $100 million in expenditure and cash transfers from the Ministry of Defence. And as poachers decimate the country’s elephants and rhinos, at least one investigative report showed that the government not only knew who they were but actually provided protection to the kingpins.

Following independence, it took Jomo Kenyatta a few years to dismantle the constitutional restraints on the Presidency. His son seems to have taken up the task with gusto. Like his father, he argues that the authoritarian powers are necessary. On the other hand, Dr Ndii believes that the orgy of looting that is underway is actually “an unintended and transient consequence of [the constitution’s] effectiveness.” However what remains abundantly clear that, it will take more than a new constitution to save Kenya from its rapacious elites.