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.   

Let Them Eat Maize?

Last year, Kenya experienced the worst food crisis in her history, more than 10 million facing the prospect of starvation. In a letter to the IMF in May 2009, Finance Minister Uhuru Kenyatta and central bank Governor Njuguna Ndungu blamed it all on three “shocks” namely the post-election violence in early 2008 which impacted negatively on key sectors of our economy such as tourism, manufacturing, transport and agriculture, resulting in a year-on-year decline in real GDP of 1 percent in the first quarter of 2008; record high fuel and fertilizer prices; and the failure of the short rains in October-November 2008, resulting in a sharp decline in domestic food supplies, particularly, maize. They of course left out the one factor which is perhaps the most significant of all.

For while it is true that Kenya is prone to drought, it is equally true that famines are rarely caused by a deficit of rain. In his book Beyond the Miracle of the Market: The Political Economy of Agrarian Development in Kenya, Robert Bates shows that Kenya suffered 16 major droughts between 1889 and 1984 which averages out at one every 6 years. He also notes that relatively few of these resulted in famine. According to Mr. Bates, of all the factors that turn a drought into a famine, only one is under human control: public policy and political institutions. Nobel-prize winning economist Amartya Sen put it more bluntly in his book Development as Freedom: “…no famine has taken place in the history of the world in a functioning democracy – be it economically rich (as in Western Europe or North America) or relatively poor (as in post independence India, or Botswana or Zimbabwe.” And, after the events of 2008, Kenya was hardly a paragon of democracy.

The writing was on the wall as early as 2007 when the short rains failed. By February 2008, the country only had a stock of about 20 million bags of maize, enough to last till September. It was clear to government technocrats that maize needed to be imported by August to bridge the shortfall till the critical North Rift crop was harvested in late 2008. So they recommended to the political leadership the same solution that had been successfully implemented in 2004 when the country faced a similar crisis: a duty waiver to allow the private sector to import the needed grain.

However, for reasons that would perhaps become clear in the light of ensuing events, the politicians, at the very first meeting of the Grand Coalition Cabinet, opted for a novel and utterly untested approach. Under the Subsidized Maize Scheme, they would have the National Cereals and Produce Board, a parastatal company, import the maize and sell it, at subsidized cost, to millers who would then pass the savings on to the consuming public. This despite the fact that no national registry of millers existed, the NCPB having been stripped of this function in 2006, and that there was no way of ensuring that millers didn’t pocket the subsidy themselves. Carried out in two phases, it would involve the sale of grain from the country’s Strategic Grain Reserve as well as importation to top up stocks.

What followed was a 6 month free for all as everyone from elected officials to professionals within the civil service scrambled for a piece of the action. Former Permanent Secretary for Governance and Ethics, John Githongo describes it as “cannibalistic corruption,” as the very people entrusted with safeguarding the lives of 10 million starving Kenyans literally snatched the food from their mouths. And by the time they were done, not only was there no subsidized maize, but the price of the commodity had doubled pushing it even further out of reach.
The consequences were devastating. By January 2009, fully a quarter of the population was starving and, according to the International Rescue Committee (IRC), over a fifth of children under age five were malnourished. That month, the government declared a National Disaster, reversed course and waived duty on imported maize, the course originally recommended by its technocrats.

As food prices rose, so did public pressure for an accounting. A forensic audit of the scheme by PriceWaterhouse Coopers revealed the extent of the rot and more importantly, linked it back to the original decision. Companies in which government officials, including Cabinet Ministers, had interests were either allocated maize despite not being millers, or received lucrative contracts related to the industry. MPs admitted to buying maize from the NCPB as well as writing letters requesting for allocations to individuals known to them, according to Githongo a clear violation of the Public Officer Ethics Act. An insurance company in which the Minister for Agriculture held shares was awarded a tender to supply gunny bags. In fact, almost a third of the subsidized maize allocated from the country’s strategic grain reserve was sold to “traders” posing as millers, who then passed it on to the real millers, in return for “facilitation payments.”

Additionally, maize was imported at more than double the price paid to local farmers, raising queries about the manner it was sourced. A parliamentary committee report recommended investigations of “the personal assistant to Prime Minister, the Prime Minister’s family, the son and associates” with regard to the importation of maize. The total cost of the scam to Kenya’s starving taxpayers is expected to exceed Kshs. 2 billion. Despite all this, an investigation by the Kenya Anti-Corruption Commission was unable to find any evidence of wrongdoing

Makes one wonder: Did the Cabinet plan it all from the very beginning? This is what PwC calls the “big picture question –whether the whole exercise was from the outset designed to fail and to provide a means for considerable financial exploitation at the expense of the state.” Though the auditors are reluctant to give a definitive answer, it is hard not to reach that conclusion given the history of corrupt deals. According to Githongo, it would hardly be the first time scoundrels have created a crisis and then sought to benefit from it. He points to the power rationing scheme of 1999 which he attributes to the emptying of hydroelectric dams supposedly to clear out siltation. The consequent loss of generating capacity (since the dams take time to refill, especially when the rains fail) led to crippling power cuts necessitating the introduction of expensive private power suppliers, many with connections to the very people who precipitated the crisis.

The fact is the maize scheme was abused from its inception. It was adopted against the grain of expert advice, and provided numerous opportunities for rewarding dishonesty and theft. Most damningly, it appears that none of its political instigators will pay a price for it. What are the odds of such a deviously fortuitous set of circumstances occurring by chance?

The Fellowship of the Wringer

After declaring he had rather die than resign, then "stepping aside" to allow for independent investigations which reportedly found him culpable for misleading parliament andselling the Grand Regency hotel with undue haste and secrecy, Amos Kimunya is back in Mwai Kibaki's promised "Clean Cabinet". 

He joins a distinguished group of presidential cronies who have been, despite all evidence to the contrary, "cleared of wrongdoing" (at least in the President's fevered imagination). The Fellowship of the Wringer. It includes persons such as George Saitoti, Fred Gumo, David Mwiraria and Kiraitu Murungi, who after being caught with their hands in the public till, are forced to resign (OK, OK Amos, step aside), subjected to Commissions of Inquiry whose reports and recommendations are neither released nor implemented and after a short stint in the backbenches to allow for public tempers to cool down, are reappointed to the Cabinet. 

The oldest members of this fellowship are Saitoti and Gumo, who even prior to Kibaki taking power had been included in a "List of Shame" in a report into the Goldenberg scandal by the Parliamentary Select Committee on Anti-Corruption and Economic Crimes (popularly known as the Kombo report).  That report recommended that they both "be investigated with a view to prosecution" and candidate Kibaki promised to implement in full the recommendations. However, one of the first acts of Kibaki's Presidency was to appoint the two to his Cabinet! A subsequent Commission of Inquiry into Goldenberg also recommended that Saitoti be prosecuted. However, he managed to convince a constitutional court that he had been "cleared" by his fellow MPs. Attorney-General Amos Wako vowed to appeal that particular constitutional court ruling though an appeal that is yet to materialise several years later. 

And when it comes to being cleared by Paliament, Mwiraria's name was expunged from the Parliamentary Accounts Committee report into the Anglo-Leasing scandal, largely at the instigation of that other anti-corruption crusader, Justice Minister Martha Karua (who in an interview with the BBC's Hardtalk two years ago said that she could offer no evidence that the war on corruption was being won and admitted that after more than 4 years in power,the Kibaki administration could not produce a single corruption conviction of note). During the vote, the August House was less than a quarter full, and the motion was passed by a majority of 3 with Mwiraria himself casting one of those votes in his own favour! A thunderous vindication indeed!

President Kibaki has shown a propensity for disregarding the recommendations of the people he appoints to investigate corruption when their reports threaten to disturb hios otherwise peaceful slumber. He was AWOL when his own anti-corruption czar, John Githongo, was asked to "ngo srowry" in his investigations into Anglo-Leasing and eventually hounded out of the country, his evidence dismissed on the spurious assertion that it did not matter because he was not an "investigator".  The Kroll report into the looting of Kenya under Moi was kept under wraps for over 3 years and has not been acted upon till today. Similarly, Kibaki has now ignored the recomendations of the Cockar Report which he himself commissioned. 

Thus we conduct the War on Corruption.