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ICPC wants changes in law enforcement agencies; tough measures to deter high level corruption

Wednesday, November 16, 2016

Nairobi, Kenya

 

1.      International Center for Policy and Conflict (ICPC) express deep concern to the horrifying unbridled wave of high level corruption in government of Kenya which signals that Ethics and Anti-Corruption Commission (EACC), Directorate of Criminal investigations and National Parliament lacks the integrity, independence and effectiveness in fighting corruption and strengthening good governance. These institutional have serious inadequacies, are cannibalized by political executive and compromised to deliver on their core mandate. Real progress against corruption begins with political will through tackling and purging the top level officials implicated, directly or indirectly, to corrupt practices and abused of office.

2.      While Articles 73, 75, 76 and 77 of the Constitution of Kenya provided extraordinary powerful legal tools to purge graft in public service, responses to the well-known corruption and organized crime cases have remained piecemeal and lacking in overall strategic direction. There are very few examples where high-level cases of corruption or organized crime have been brought to conclusion in court. It is very disturbing for the President to turn blind eye and feign helpless in fight against corruption in his regime.

3.      When it comes to corruption, those at the highest levels of government feel they can act with impunity. Because of this disturbing phenomenon, corruption has undermined citizens' confidence in democratic institutions and the rule of law. It is hurting the Kenya economy, denying millions of young people jobs, fuelling insecurity, crippling services delivery and depriving the country much-needed tax revenue.

4.      Rather than being a series of snap operations, efforts to root out corruption must bring about institutional change by turning the spotlight on the upper echelons of government especially ministers, members of parliament and senior civil servants, in addition to other officials and relatives of high-ranking politicians.

5.      Effective anti-corruption measures are an important factor in integrating the country’s economy into the global business community, becoming more attractive to foreign direct investment, and achieving or sustaining goals of economic growth and expansion.  However corruption poses a significant obstacle for business and investment in the country and the international perception that the problem is growing is not conducive to economic growth

6.      Government is constitutionally duty bound to ensure that an agency responsible for investigating corruption should be sufficiently independent to prevent political interference in the cases it investigates. Corruption threatens the very existence of our constitutional democracy and that effective laws and institutions to combat corruption are therefore absolutely essential. The Constitutional Court therefore has a duty to “ensure that legal mechanisms against corruption are as trustworthy and tight as possible.

7.      EACC, National Police Service, Parliament and National prosecution office have deliberatively been captured making them operationally, financially and structurally compromised and weakened to be effective in their fight corruption. The situation is made worse by lack of thorough investigations and prosecutions targeting the middlemen who facilitate corruption and hidden flow of cash. 

8.      The  existence of systemic corruption in law enforcement agencies; unsatisfactory standards of investigation which result in unacceptable low-rates of conviction; and the general lack of an efficiently co-ordinated attack on organised and syndicated crime by the investigation, intelligence and prosecution authorities fuelled by limited political will is the main stumbling block in war again corruption.

 

Recommendations:

 

9.      ICPC argues that a number of conditions are required to ensure that anti-corruption campaign in any context is effective, sustainable and not easily subverted. These conditions include having the necessary data to inform policy and strategy; comprehensive legal and institutional safeguards to prevent corruption and protect public interest; and, the most difficult to secure, the necessary political leadership and will to tackle corruption credibly and put in place long-term reforms. Institutions do not (on their own) stop corruption. People do.

10.  The Constitution imposed an obligation on the state to establish and maintain a concrete, effective and independent body to combat corruption and organized crime. No amount of legal tinkering could guarantee the unit’s effectiveness in combating corruption.

11.  EACC does not meet the constitutional requirement of structural and operational adequate independence.  It is insufficiently insulated from political and executive influence in its structure and functioning. The safeguards that its Constitutive Act provisions created were inadequate to save the EACC from a significant risk of political influence and interference.

12.  In addition to scaling up political will, the EACC has to be fundamentally restructured and reorganized to employ specialized forensic investigators, intelligence operations and specialist internal prosecutors who will work together in project teams. EACC need to move away from the silo approach that is prevalent in so many of the structures tasked with combating crime and corruption. This  internal prosecution-led and intelligence driven investigations approach reflect international best practice and resulted in improved conviction rates world-wide.

13.  It is clear that to be effective, national anti-corruption/integrity systems require more than a single agency approach. Rather, they need to be supported by an institutional matrix of legal and oversight systems to ensure effective prosecution of offenders. A partnership approach, including active engagement by civil society and the media is extremely important.  Weak enforcement of the existing rules means that corruption risks persist contributing  to public skepticism of the commitment of politicians and bureaucrats to a more open and ethical style of government. Above all, the reforms need to be implemented by ethical leaders who scrupulously observe the rule of law

14.   Institutions like EACC and Parliament are useful to fight corruption, if they were adequately independent, it is only when voters start punishing politicians and the parties they belong to for being notoriously corrupt or for not taking decisive action against their colleagues in their respective parties who are corrupt, that there would be a real incentive to end the scourge of corruption. The most effective mechanism to fight corruption is the political will and democratic process itself. But that this depends on voters making the connection between the corruption (in both the public and the private sector) and their own circumstances; the lack of access to clean water or adequate toilets, the absence of decent housing, the long queues at the state hospital, the rude and inefficient service at the county government office, the power cuts, and the rubbish that remains uncollected in the streets.

15.   Government must bar politicians and civil servants from doing business with the state-directly and indirectly. Politicians holding public office and civil servants must not be allowed to dabble in business with the state. We must outlaw business in the public sector. We must clean up the procurement process. Too much is tendered, but some of the worst corruption is not tendered - without going to tender it goes through the back or some perverted tenderpreneur process. There must be mandatory forensic lifestyle audit of all holders of public office.

16.  ICPC want establishment of office of Government Accountability to investigate conflicts of interest when companies do business for the government and public servants stand to gain from the deals. The Office will enforce requirement that public officials declare all their business interests and links every year. These include shares, loan accounts or any other form of equity in a registered private or public companies. All state institutions would be required to keep a transparent public register of entities doing business with them and public servants will also have to disclose any directorships or partnerships they have with businesses, as well as any remuneration associated with these.

17.  Government must tighten regulation of lobbying, reducing conflicts of interest, enhancing protection for whistle-blowers and curbing secret deal-making in all government projects.  There urgency to turn focus on the third-party facilitators including, among others, lawyers, accountants, and brokers with the ability to facilitate the process of moving corruption money. Further  we want tougher regulatory regime to pursue false accounting offenders making it an offence when a person facilitates, conceals or disguises in accounting documents payments or benefits which are not legitimately due.

18.  Budget has been turned into instrument of looting public funds. The entire process of the budget formulation and execution must be opened up to public scrutiny. Further there should not be budget supplementary and block budget allocation. Budget allocation must be need based.  The office of Auditor General and the Controller of Budget must be strengthened and their institutional operational independence enhanced.

19.  Finally ICPC is calling for overhaul, restructure and reorganize the Directorate Criminal investigation into a professional credible, impartial and effective well-resourced national crime service agency with special operational centres with the capabilities and capacity to conducting highly professional crime assignments and tackle inter-county, national and international crimes

20.  The national crime and law enforcement agency would be the crime investigation hub producing and maintaining comprehensive national crime threat information for serious, organized and complex crimes, which all other domestic and international security agencies will tap and benefit from. This would not only improve crime investigation and improve coordination and operational effectiveness; it would also enforce clear accountability avenues in tackling organized and transnational crimes such as money laundering, terrorism, poaching, economic and financial malpractices, drug and human trafficking and such other crimes of national and international in nature.

21.  Insulate police from extraneous interference by the politicians in power, strengthen National Police Service Commission and establish National Police Service Fund for financial independence

 

Signed


Ndung'u Wainaina

 

Executive Director