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.