THE NATIONAL COUNCIL OF CHURCHES OF KENYA

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GENERAL SECRETARIAT

THE SOURCES AND CAUSES OF CORRUPTION SPEECH GIVEN BY REV CANON PETER KARANJA GENERAL SECRETARY DURING THE CHURCH FORUM ON CORRUPTION IN KENYA ORGANISED BY THE CENTRE FOR RESEARCH IN MISSION AND SOCIAL TRANSFORMATION, CARLILE COLLEGE AT ALL SAINTS CATHEDRAL HALL, NAIROBI ON 23rd OCTOBER 2009

1 Introduction Corruption is defined as Lack of integrity or honesty (especially susceptibility to bribery); use of a position of trust for dishonest gain by the Princeton University in their Wordweb dictionary. In this definition, the key word is integrity, the faithfulness to principles, procedures and ethics. Corruption makes the behavior of the person deviate from what is accepted as good for all and makes them focus on good for me, even if it is bad for all. This in essence is what makes corruption to be extremely destructive. Talking about the impact of corruption, S. C. Bansal in his book Invisible Wound says: Corruption threatens people and their governments. It makes societies unfair. It is argued that bribery is a negotiated rent, as the beginning of all illegalities and tyranny. There is no more powerful engine of injustice and cruelty, for bribery destroys both faith and state. The serious consequence of corruption thus is not only State Capture but also Mind Capture. Rent seeking behavior occupies the human mind and removes it from useful task. The Bible, which is the authority in the life of a Christian, is very harsh when it comes to corruption. I can here mention several verses: Exodus 23: 8: Job 36: 18 Proverbs 17: 23 Ecclesiastes 7: 7 Psalms 14: 1 Deuteronomy 27: 25 Proverbs 29: 4 Do not accept a bribe, for a bribe blinds those who see and twists the words of the righteous Be careful that no one entices you by riches; do not let a large bribe turn you aside A wicked man accepts a bribe in secret to pervert the course of justice Extortion turns a wise man into a fool, and a bribe corrupts the heart The fool says in his heart, There is no God. They are corrupt, their deeds are vile; there is no one who does good Cursed is the man who accepts a bribe to kill an innocent person By justice a king gives a country stability, but one who is greedy for bribes tears it down

God, in His divine wisdom, knew the devastating results of corruption, and carefully warns His people against it. 2 Source of Corruption Corruption is a sin. And like all sin, it originates from a rebellion against God and His laws. In 2 Peter 1: 4, the Bible reminds us that corruption, as manifested through sin, is caused by evil desires. 3 The Axis of Evil Corruption, impunity and tribalism are the greatest threats to the stability, peace and prosperity in Kenya. One would call these three vices the axis of evil. These vices have permeated and penetrated the national life like gangrene; imprisoning both the leaders and the led in a vicious circle and entangling every sphere of life like an octopus does its prey. They have led to the desperation and frustration, burdens and baggage that Kenyans carry on their shoulders every day as they eke out a living in the villages, towns and cities. Every minute they pray and toil in the hope that one day, God will deliver them from the yoke of poverty, ignorance and disease, and, most importantly from a leadership that worships unjust riches, oppresses the poor and sheds innocent blood.

Indeed a recent publication titled Its Our Turn To Eat by Ms Michella Wrong painted a grisly picture of the status of corruption in the country. In it, she notes that the post election violence in Kenya had a direct link to corruption and tribal hatred and bigotry that has been sown and nurtured by the people since independence. In his speech when he visited Kenya in September 2006, President Barack Obama stated that while corruption is a problem we all share, here in Kenya it is a crisis a crisis thats robbing an honest people of the opportunities they have fought for the opportunities they deserve corruption can also provide opportunities for those who would harness the fear and hatred of others to their agenda and ambitions. Unless we deal with tribalism, corruption and impunity, this country will become a totally failed state like Somalia. 4 Factors that Facilitate Corruption In his dissertation titled Will Corruption Ever Stop Developing in Kenya?, Aitan Szlapak puts the causes of corruption into two classes, State Capture and Administrative Capture. 4.1 State Capture He defines State Capture as the abuse of power by the elite. In this, government discretionary powers are used to influence the formation and implementation of laws in such a way as to allow the capture of public resources and / or private enterprises for individual benefit. Over time, there are laws in Kenya that were formulated with the intention of enabling selected persons to have undue advantage over others. State capture is manifested by: 4.1.1 Unjust Laws that Hinder Public Participation in and Monitoring of Government Activities Through a plethora of rules and conditions, the government has consistently locked the general public in almost all of its implementations. A recent analysis by the NCCK of the ten decentralized funds indicates that even where the law requires the public to participate their management, the representatives are more often than not picked by government or political actors. This has over time ensured that the actions of public servants remain a mystery, with a promise that only the very well behaved would be involved in the same. 4.1.2 Laws that Hinder Access to Information Through the Official Secrets Act and other pieces of legislation, the government has effectively ensured that the general public as well as civil society does not gain access to necessary information. Government expenditure, by and large, remains clouded in officialdom that seems deliberately designed to ensure people do not know how much is spent on what. It was for this reason that the Global Integrity Report of 2008, generated after a peer review process, scored Kenya at a mere 37% - very weak in the area of Public Access to Information. Their report says in part: However, various other legislation hampers such access, notably the Official Secrets Act, which binds civil servants not to divulge certain categories of information without authorization from their respective accounting officers, the permanent secretary. Other legislation that hampers access includes the Public 2

Archives and Documentation Service Act, the Preservation of Public Security Act, the Defamation Act, the National Security Intelligence Act, the National Assembly (Powers and Privileges Act), and the Public Officers Ethics Act. 4.1.3 Legal Provisions that Hinder Competition In a paper titled Enforcement of Competition Policy and Law in Kenya, the Commissioner of the Monopolies and Prices Commission, Mr. Peter Muchoki Njoroge, says: Whereas political vibrancy assures political democracy, robust competition assures economic democracy. Competition is the best general process for optimizing efficiency and equity. Efficient producers can undersell others, who must cut costs or be weeded out. The fittest survive. Competition also forces sellers to advertise their wares informatively. Competition fosters progress, by giving a free run to new blood and new ideas. It rewards the innovator and compels the others to imitate rapidly. It spreads income and wealth widely, by averting monopoly for the few, and by feeding rewards to new operators and innovators. It provides the widest opportunity for seeking success. Competition enlarges freedom of choice for most citizens. It also gives a certain cultural richness by catering to the full range of consumer wants. To assure the sustenance of these benefits demands the existence of a competition regime. With this understanding, it is not clear why the government allows legal provisions that hinder the establishment of new businesses. Persons are required to obtain quite a number of licenses from different government offices each of which places on them a load of requirements. The government on its part has resisted calls to have the licensing processes collapsed to a one-stop affair. In many instances, the various steps created before a new business is licensed are inspired by already established businesses to keep out competition. They largely serve as windows of corruption for government officials who promise the new entrants access to licenses in return for financial favours. In his paper, Mr Njoroge did note that there exists various exemptions in the law that allow specific businesses to operate as monopolies. Learning from the case of Goldenberg International Limited and their virtual monopoly of exporting gold and diamonds, it is not beyond doubt that such provisions and exemptions are acquired through corrupt means. 4.1.4 Absence of Laws to Deal with Cartels Consumers are often been fleeced by traders who come together to form cartels that then manipulate prices. Indeed it was Adam Smith who in his book The Wealth of Nations said: People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. In Kenya, the media, energy, oil marketers, and telecoms sector just to name a few continue to operate as cartels with subtle approval of the state agents. 4.1.5 Failure by the Judiciary to Deliver Justice Can Kenyans judiciously expect to receive justice from our courts? In their 2001 report on the state of human rights in Kenya, the United Nations High Commission for Refugees says in part while quoting from the US State Department: No action was taken during the year to implement the recommendations of the 1998 Kwach Commission, which the Chief Justice appointed to report on the problems of the Judiciary. The Kwach 3

Commission cited corruption, incompetence, neglect of duty, theft, drunkenness, lateness, sexual harassment, and racketeering as common problems in the judiciary. The Commission recommended amending the Constitution to allow for the removal of incompetent judges, introducing a code of ethics, improving the independence of the judiciary, overhauling the Judicial Service Commission, and shifting prosecutorial responsibilities from the police to the Judiciary. Upon receipt of the report, the Chief Justice in late 1998 appointed another commission to investigate modalities of implementing the Kwach Commissions recommendations. Following the electoral disputes relating to the 2007 elections, the Orange Democratic Movement (ODM) declined to take the matter to Kenyans courts and instead called for international mediation. To many Kenyans, court decisions in Kenya are corruptly obtained and the influence of the executive on the judiciary is phenomenal. It was that the Agenda Item Four in the Kenya National Dialogue process identified judicial reforms as necessary in stabilizing Kenya. On its part, the Government formed a Task Force on Judicial Reforms chaired by Justice William Ouko to. Its recommendations are similar to those of the Kwach Report and there is doubt whether the government is committed to implementing it at all. This is because state officials appear to benefit immensely from the status quo. 4.2 Administrative Capture Whereas State Capture focuses on influencing the rules put in place, Administrative Capture focuses on exploiting the rules already in place. It occurs when the people responsible for implementation of regulations and legislation deliberately slow down or hinders services. Administrative Capture is manifested by: 4.2.1 Corruption in the Public Service A research by the Transparency International recently showed that more than 51% of Kenyans paid bribes to receive services from government offices. These are services they should have already been receiving without pay! It remains true today that there are those who consider government jobs to be opportunities for amassing wealth by receiving bribes. This tendency has grown to the point where, despite employing qualified professionals, the government always renders mediocre services. 4.2.2 Abuse of Power The most glaring practice by government agents is misuse and abuse of the power of the offices they hold. Such administrators make decisions that are contrary to the common good, and then face no punishment for it. The case of Goldenberg International shows how a minister abused his office as was documented by the Judicial Commission of Inquiry into the Goldenberg Affair which says in part: In his budget speech of 1982/1983, the then Minister for Finance Hon Arthur Magugu suspended the Export Compensation Scheme arguing that it had been used as a vehicle of fraud against the government by some exporters; and that it had very limited impact on export promotion. But the suspension was for a limited period. By his speech of 7th June 1990, Saitoti (Prof George Saitoti, then Vice President and Minister for Finance) emphasized that the expansion of the scheme supplemented with an import duty exemption scheme would act as stimulus to export promotion. We were, however, unable to find a reason for change of government thinking. Nor were we able to find measures the government had instituted to check the fraud Hon Magugu had pointed out which prompted the government to suspend the scheme. 4

Subsequently, the Vice President approved not only the legislated 20% export compensation to GIL, but also awarded them an extra 15% ex gratia payment. This was clearly against the law. No punishment was accorded for this misuse of office. And it is against this background that government officials continue to make and effect decisions that they should not, thereby perpetuating corruption. 4.2.3 Ignorance The general public is deliberately kept in a state of ignorance, which enables corrupt individuals to carry on their practices right in front of the people who have no idea what to do about it. Even when people are aware that a public servant is doing wrong, they are woefully ignorant of the actions they can take to deal with that person. 4.2.4 Promotion of the Notion that Government is Master The style of governance adopted by the colonial government was one that completely dominated the people. The average person is conditioned to feel inferior (slave) while the government officials is superior; to be the slave while the government was master. This notion has remained in the minds of the people to this day, being perpetuated by those in power. When people believe that the government is a master and they are servants, even basic services are converted from being rights to favors. The citizens are then ever so willing to pay bribes to get what is theirs by right. An even greater impact of this concept is that the people never question the activities and decisions of the government. Serikali imesema ! (Kiswahili for The government has said) is often a prelude of a decision that the concerned official would rather the people did not question. 5 Conclusion We have today reflected on some of the causes and sources of corruption in Kenya, which we classified into State Capture and Administrative Capture. However, the list is not conclusive. The way forward for this nation is to keenly consider how to deal with these causes and sources, and then seal those gaps. That is the only time that our nation will change for the better, and aggression will end. As President Obama of the US stated during his recent visit to Ghana: No one wants to live in a society where the rule of law gives way to the rule of brutality and bribery. And to this we can now add: No one wants to live in a society where the law is made by a few people for a few people who then dominate the many. I conclude by remembering the words of Job 17: 14 If I say to corruption You are my father, and the worm, My mother or My sister, where then is my hope? Who can see any hope for me? I thank you all. My God bless you.

Rev Canon Peter Karanja