KENYA ANTI-CORRUPTION COMMISSION

Transcription

1 KENYA ANTI-CORRUPTION COMMISSION SPEAKING NOTES OF THE DIRECTOR/CHIEF EXECUTIVE OF THE KENYA ANTI-CORRUPTION COMMISSION AT ST. ANDREWS CHURCH NAIROBI ON THE MANDATE, SCOPE AND CHALLENGES OF THE KACC UNDER THE THEME GOD HATES CORRUPTION THURSDAY, 15 TH MARCH 2007, ST. ANDREWS CHURCH, NAIROBI. *************************************************************** The Parish Moderator, Rev. Dr. Patrick Mungiriria, the Session Clerk, Elder Chris Karingithi, the Chair of the Justice, Peace and Reconciliation Committee, Ms Njeri Kang ethe, Deacons present, including the Chairman of the Kenya Anti-Corruption Commission Advisory Board, Mr Allan Ngugi, Ladies and Gentlemen: All Protocols Observed: ************************************************************************

2 2 1. Introduction 1.1 I will begin by thanking you all for the invitation to come and fellowship with you this evening. The Director of the KACC is often invited to appear and speak at forums where the audience is usually hostile and critical. It is a refreshing change to be with you this evening and for the opportunity to fellowship with a friendly audience. Ladies and Gentlemen: 1.2 On an evening like this one, I would like nothing better than to give you a long and detailed lecture on the scope, mandate and challenges faced by the Kenya Anti-Corruption Commission. I would take you through the legislative history leading up to enactment of The Anti- Corruption and Economic Crimes Act I would relish the chance to describe to you how corruption has changed over time from the passage of banknotes in brown envelopes under the table, to today s world where bribes are given in the form of virtual money, services and benefits, usually across borders and continents, and often electronically, at the touch of a button or the click of a computer mouse. I would enjoy telling you about the various efforts that Kenya s governments have made to fight corruption through the establishment of anti-corruption squads, anti-corruption units, the Kenya Anti-Corruption Authority, of which I served as Director until it was shut down, leading to today s Kenya Anti-Corruption Commission. 2

3 3 1.3 I would tell you that despite what you may hear in the press, and in spite of popular opinion, the Commission has only been in actual existence since 10 th September 2004 when I and my Assistant Directors took office. 1.4 However, I will not tell you all those things this evening. Instead, and in the interests of time, I will focus on the scope, mandate and challenges faced by the Commission. 2. Scope and Mandate of the Kenya Anti-Corruption Commission 2.1 You will notice, of course, that I have merged scope and mandate, principally because there is no significant difference between the two words meriting separate attention. 2.2 The Kenya Anti-Corruption Commission is a creature of statute, established by The Anti-Corruption and Economic Crimes Act The structure of the Commission is composite. First is the Advisory Board consisting of members appointed by various nominating bodies. There then follows the Commission proper, consisting of the Director, who is also the Chief Executive, and up to four Assistant- Directors whose work is to assist the Director. 3

4 4 2.3 Being a creature of statute, the scope and mandate of the Commission must be found in the law establishing the Commission. For the Advisory Board, its scope and mandate is to advise the Commission generally on the exercise of its powers and the performance of its functions under The Anti-Corruption and Economic Crimes Act For the Commission, the entirety of our scope and mandate is to be found in Section 7 of The Anti-Corruption and Economic Crimes Act 2003, which sets out the functions of the Commission. Briefly stated, the functions of the Commission are; (a) to undertake investigations and to assist other law enforcement agencies to investigate suspected corruption or economic crimes; (b) to advise any public body or person on ways and means of eliminating corrupt practices and to secure the revision of methods of work or procedures that may be conducive to corrupt practices; (c) to undertake public education against the dangers of corruption and economic crime; and (d) to undertake and institute civil action against any person for recovery of any loss or damage to any public property. 2.5 You will note, Parish Moderator, that by law, the Kenya Anti- Corruption Commission has no powers of prosecution. The former Kenya Anti-Corruption Authority did have powers of prosecution. However, when it was shut down judicially in December 2000, the next Parliament did not consider it wise, or safe, to grant the 4

5 5 Commission powers of prosecution. Instead, Parliament established a mechanism where the Commission, after conducting investigations, merely makes recommendations to the Attorney General for prosecution, for administrative action, for no further action, or for closure of investigation files for lack of evidence or other good reason. 2.6 Reading the press, you might be forgiven for thinking that the Commission has singularly failed to achieve its primary and only responsibility to prosecute all corrupt persons in Kenya. This seed of discord is planted and re-planted by the press and watered regularly by politicians, among them lawyers who should know better. I repeat, once again, that KACC has no duty to prosecute anyone and cannot therefore be considered to have failed in the performance of such a duty. 3. What results can the KACC show? 3.1 Rome was not built in a day. On its mandate as I have already mentioned, what does the Commission have to show for its two and a half years in office? As I have alluded to earlier when discussing the public s fixation with prosecution as the perceived solution to the cancer of corruption, the Commission has employed a holistic, threepronged strategy of public education, corruption prevention and law enforcement. 5

6 6 3.2 Public education is a distinct mandate of the Commission. The ultimate objective of public education is not merely to ensure that Kenyans know and understand what corruption is, that it is greatly disadvantageous to our society, and that it is an enemy of social and economic development. That knowledge is peripheral to the ultimate objective of public education which is to foster and inculcate, in Kenyans, an ingrained sense of anti-corruption, and personal attitudes and behaviour choices that shun corruption and corrupt conduct. This is a pillar of the anti-corruption effort which, if achieved, has a sustainable and self-perpetuating long-term effect. 3.3 In Public Education, the Commission s outreach is extensive. Purely for illustration, under the Public Service Integrity Programme (PSIP), 12,229 public sector employees have been trained to date, while under the Training, Research, Advocacy and Governance (TRAG) Programme, 145 senior officers from the public, private and civil society sectors have been trained. Strategic interventions in mainstreaming anti-corruption, ethics and integrity content into the formal education system have been made. 3.4 The Commission has also sponsored categories in the Kenya Music Festival and the Kenya Drama Festival. This is additional to the holding of sensitisation seminars for all staff of the Kenya Institute of Education, all heads of secondary schools, the Kenya Nation Examinations Council and the sensitisation of 96 Provincial Directors of Education, District Education Officers and Municipal Education Officers. 6

7 7 3.5 The second main plank of the anti-corruption effort and strategy adopted by the KACC is Corruption Prevention. Even from a chronological point of view, prevention ought to follow education. You will agree with me that it serves no useful purpose to preach strenuously to a hungry man against greed, and then proceed to leave him in a place with large pieces of roast meat hanging in front of him with the admonition that he should not help himself because greed is bad. 3.6 What corruption prevention seeks to do is to ensure that the opportunities and loopholes that might tempt even Angels are taken away and closed. The KACC does this through the systemic analysis of processes, practices and procedures in public institutions that either facilitate corruption or are a conduit for it. The main concern in corruption prevention is to address and deal a death blow to the twin evils of impunity and discretion. Impunity means that stewards of public funds and property do not fear the consequences of breaking the law. Discretion means that stewards of public funds and property can make subjective decisions that may be at odds with the public interest. Corruption prevention therefore comes in to ensure that the boundaries are clear, that honest public servants find it easier to remain honest, and dishonest public servants find it extremely difficult to pilfer public funds and property. 3.7 In pursuit of corruption prevention as described, the KACC has already analysed, with a view to sealing loopholes and corruptionfacilitating processes, the systems and practices of the Kenya Medical 7

8 8 Supplies Agency (KEMSA), The Registration and Licensing of Motor Vehicles and Enforcement of Traffic Laws, the Department of Immigration in the Ministry of Immigration and Registration of Persons, the City Council of Nairobi, the Municipal Council of Mombasa, and, presently underway, an Examination into the Roads Sector and the Teachers Service Commission. 3.8 In corruption prevention, it is important to note that the work of the KACC is not completed when an Examination Report is handed over to the subject Ministry or Department. The KACC works in partnership with the examined institution to ensure that the recommendations are implemented in a timely and monitored manner. 3.9 The third plank of the KACC s anti-corruption strategy is Law Enforcement. This comes in to punish those who have turned their backs on anti-corruption education, and to punish those who have found it irresistible to take advantage of weaknesses and loopholes in the public sector to perpetrate petty and grand corruption The Anti-Corruption and Economic Crimes Act 2003 captures, in the offences it creates, a wide cross-section of illegal conduct compositely referred to as corruption and economic crimes. The KACC investigates suspected corruption and economic crime and, on completion of the investigation, forwards the investigation file to the Attorney General with recommendations for prosecution, administrative disciplinary action, or closure. 8

9 Up to February 2007, the Commission has forwarded 254 files to the Attorney General with recommendations for prosecution in 185 files, administrative disciplinary action in 11 files and closure for lack of evidence in 58 files In the civil courts, 94 cases for the recovery of embezzled public funds amounting to Ksh 121,072,800.15, of which Ksh 12,585,583 has already been recovered; 37 suits for the recovery of illegally allocated public land valued at Ksh 909,000,000; 48 applications for preservation of assets valued at Ksh 1.19 Billion and 1 application for joinder of the Commission in ongoing proceedings to protect public property valued at Ksh 50 million Still on recovery, 48 land title deeds and deed plans with an acreage of 89.5 Hectares and a value of Ksh 144 million have been surrendered. Further, not less than 13 Notices have been issued requiring their addressees to explain how their wealth was acquired As I have pointed out earlier, while the three-pronged strategy is a practical imperative for long-term success as opposed to short-term gains, the focus of our citizenry and the opinion-shaping Media remains firmly on the symptomatic aspect of Law Enforcement through prosecution of suspected criminals. I hope that my discussion this evening has brought home the importance of the longer-term view and perspective of a holistic approach to fighting corruption and economic crime. 9

10 The Kenya Anti-Corruption Commission embraces this threepronged strategy in its institutional set-up, in its Strategic Plan , and in its participation in the National Anti-Corruption Plan that brings together all sectors of Kenyans society onto the same page in the war on corruption. 4. What challenges does the Commission face? 4.1 The first problem is that corruption did not begin with the establishment of the Commission. Indeed, corruption is so deeprooted, and has such a wide network, that it permeates our society at all levels. Corruption, unfortunately, is institutionalised in the national psyche. 4.2 The hard fact is that laying the foundations of an institution like the KACC, establishing its internal processes, recruiting staff worthy of its scope and mandate, and actually undertaking its mandate as described, takes time and resources. 4.3 Changing minds and attitudes is no easy task. Kenyans have, through the years, adopted an ambivalent attitude towards corruption. The attitude is one of uncertainty compounded by tolerance, indifference and/or resignation - that corruption is so pervasive that fighting it is like trying to empty the Indian Ocean with a bucket. 10

11 The legal process itself, riding on the Constitutional guarantee of Due Process, is often used and abused by accused persons to frustrate the progress and hearing of cases. Well-paid, senior lawyers mount great resistance, employ every trick in the book and make it virtually impossible to conclude matters. Constitutional applications and applications for adjournment for one reason or another are legion. 4.5 Corruption also fights back. Suspects routinely intimidate investigators and witnesses. The public money and property stolen is itself employed to fight the legal process. 4.6 The link between grand corruption and politics also comes to the fore. Politicians routinely pour cold water on the Commission s attempts to get a grip on corruption. When targeted, as they often are, politicians regularly resort to tribal or ethnic bunkers, claiming that it is their community that is under unwarranted attack, whereas in actual fact it is their personal actions that are under scrutiny. 4.7 Fighting corruption is very much like a dog chasing its own tail. No sooner than you are following up on one investigation than another one comes to light that makes the one you are following up look fairly pedestrian in nature. This poses a problem to ongoing investigations. Distractions, often fuelled by great public pressure, are normal. The public expects newly uncovered cases of suspected corruption to be investigated immediately and the suspects prosecuted and jailed, preferably immediately. I leave it to you to imagine what happens when the Commission tries to point out that 11

12 12 every Kenyan is presumed innocent until proved guilty, and that Due Process is as important, if not more important, than the war on corruption. 4.8 The Anti-Corruption and Economic Crimes Act 2003 is not itself a perfect piece of legislation. Indeed, no legislation can claim perfection. The KACC as the primary user of the legislation has made and continues to make proposals for legislative reform. 4.9 Finally, grand corruption invariably has international connections. Suppliers, Ghost suppliers, foreign payments and remittances, technology, international travel and commerce all combine to make the investigation of grand corruption a feat of unimaginable proportions. Legal systems are different in different countries. It is not possible for KACC investigators to enter foreign countries to conduct investigations at will. Much lies on International Law and Treaties, and Diplomatic cooperation. These processes are slow, cumbersome and complicated. 5. Partnership in the war against Corruption with St. Andrews Church and with its organs 5.1 The country is currently implementing the National Anti-Corruption Plan. This Plan brings together all sectors of our society on the same platform and seeks to create synergy towards achievement of the objective of Zero Tolerance to corruption. 12

13 St. Andrews Church, and its organs such as the Justice, Peace and Reconciliation Committee, should seek to engage the National Anti- Corruption Plan either formally and directly through the Religious Sector representatives, or informally and indirectly by adopting the national anti-corruption objectives as its own and implementing them in its activities and plans. Both ways, the noble objectives of the National Anti-Corruption Plan are upheld, and national synergy is focussed towards achieving Zero Tolerance towards corruption. 5.3 I thank you again for inviting me here this evening, and for taking the time to listen patiently and without interruption. I am now yours for interrogation. Justice Aaron G. Ringera Director / Chief Executive 13