KENYA Country Profile

Public Anti-Corruption Initiatives

  • Legislation: The Anti-Corruption and Economic Crimes Act 2003 defines and criminalises corruption and establishes rules for integrity and transparency. Corruption in the form of attempted corruption, active and passive bribery, bribing a foreign official, money laundering, abuse of office, extortion, conflict of interest, bid rigging, and bribery involving agents is criminalised by the act. If found guilty of corruption, one faces a maximum fine of KES 1 million, a maximum 10-year prison sentence, or to both. The act does not cover business-to-business corruption. The Public Officers Ethics Act 2003 sets rules for transparency and accountability and defines graft and abuse of office. It requires certain public officials and their spouses to declare their assets. Furthermore, public officials are not permitted to operate private companies or have positions in the private sector. The Proceeds of Crime and Anti-Money Laundering Bill was originally tabled in Parliament in 2007, but it lapsed and was subsequently retabled in spring 2008. At the end of December 2009, the Parliament passed the bill. Despite this, experts fear that it may just be a gimmick by the government to appease international partners, according to a December 2009 article by Inter Press Service. In addition, the executive director of International Commission of Jurists Kenya, George Kegoro, points out that while the legislation is adequate, he doubts there is political will to completely stamp out money laundering in Kenya. The Finance Act 2006 addresses measures to be taken against tax fraud and lays out guidelines on tax administration insofar as value added tax (VAT), customs and excise duties and income tax are concerned. The legislation provides sanctions on corrupt practices and expands the tax bracket to capture a wider tax base, thereby reducing opportunities for tax evasion. The Service Commissions Act has a Code of Regulations for civil servants that require meritocratic recruitment and promotion of public officials, as well as provisions for ensuring their political independence. In the past, civil servants have faced sanctions for breaching this code. Still, interviews with civil servants conducted by Transparency International Kenya 2007 indicate that the Code of Regulations is often not followed and that bribery, nepotism and political patronage are widespread. Access the Lexadin World Law Guide for a collection of legislation in Kenya.

  • Government Strategies: The government's governance reform efforts are multidimensional and involve, amongst other things, the enactment of appropriate laws (e.g. the Anti-Corruption and Economic Crimes Act, the Public Officer's Ethics Act, etc.) and the creation and strengthening of institutions involved in governance. Central to these reforms in the area of governance are the increasing number of government agencies with codes of conduct and ongoing reforms of the public financial management (PFM) systems, as reflected in the PFM reforms strategy. These reforms in the PFM arena are meant to greatly enhance transparency and accountability in the utilisation of public resources and thereby improve service delivery to the public. These reforms are complemented by a 2006 Ministry of Finance Staff Code of Conduct. Former Finance Minister Amos Kimunya made promises of a comprehensive anti-corruption plan, but similar past pledges have not been kept and Kimunya himself has been linked to a public procurement corruption scandal in early 2008, which led to his resignation several months later. Despite the scandal, Kimunya was re-appointed to his previous position in January 2009. An ethics and governance committee of the judiciary has been established to collect information to determine the levels of corruption in the judiciary, report on individual cases and recommend remedial measures. The government has recently taken more positive steps to develop freedom of information legislation. After issuing a draft policy for public consultation, it drafted a Freedom of Information Bill for tabling in Parliament that provides for both proactive disclosure and repeal of the Official Secrets Act. The new government has taken the initiative to establish a special quasi-judicial commission that will act as a one-stop plea-bargaining shop for confessions of corruption and surrender of illegally acquired assets in order to clean up past corruption cases in exchange for amnesty. This strategy forms part of discussions at higher government levels concerning the need to reconcile potentially destabilising divisions in government that could arise due to continuing high-level corruption scandals, a general amnesty bill, and the need to reduce the backlog of old corruption cases that are pending and ongoing in Kenyan courts.

  • Anti-Corruption Agency: The Kenya Anti-Corruption Commission (KACC) became fully operational in August 2005 and replaced previous agencies and units. The tasks of the KACC include the investigation of corruption and economic crime, examination of practices and procedures of public bodies and educating the public on the dangers of corruption and economic crime. The KACC does not have any prosecution powers, but forwards cases to the Attorney General. This is seen as a potential weakness by Transparency International Kenya 2007. The KACC has received more than 19,000 complaints since it began operating, more than 3,000 of these complaints have been fully investigated and recommendations sent to the Attorney General for appropriate action. The Attorney General has been criticised for a lack of results, because even if the KACC passes cases on with recommendations, the Attorney General fails to act. Although the KACC has recommended prosecution of several government officials, according to Freedom House 2009, only 51 people had been convicted by the end of 2008. In December 2008, the KACC managed to launch legal actions against seven MPs, including one minister, on charges of having been paid KES several million as allowances. Nevertheless, as assessed by the Bertelsmann Foundation 2010, the agency has failed to live up to its expectations; it has only brought one major suit to compel a public official (former Internal Security Minister) and has failed to win a single significant corruption case. Moreover, as illustrated by Global Integrity 2008, the KACC is not free of non-transparent practices; in July 2008, a Nairobi parliamentarian, Ferdinand Waititu, appeared before an anti-corruption court on charges of trying to bribe an official at the KACC with KES 230,000. The KACC receives regular funding and has a full-time staff, which, according to Global Integrity 2008, are among the best-paid public officials in Kenya, with the director receiving a higher salary than the national president. The commission is required by law to publish annual and quarterly reports of its activities. Corruption can be reported anonymously on the KACC's website.

  • Auditor General: The Controller and Auditor General (CAG) of the Kenya National Audit Office (KENAO) is the supreme audit institution in Kenya. The CAG is appointed by the president and can only be removed from office on the findings of a tribunal. The Controller and Auditor General is legally protected by political interference and according to Global Integrity 2008, despite the fact that the CAG is appointed by the president, there has been no suggestion that this affect their work. The agency receives regular funding and has a full time staff. The CGA makes regular reports, which are public after they have been presented to the Parliament. After receiving the reports, the Parliament makes recommendations as to the actions that should be taken. However, the government rarely reacts to those recommendations. According to Transparency International's Global Corruption Report 2009, the executive powers in Kenya greatly compromise the effectiveness of the oversight institutions.

  • Ombudsman: In 2007, the government established the Public Complaints Standing Committee (PCSC) to receive, register, sort, classify and document all complaints against public officers. In addition, the PCSC is mandated to inquire into allegations of abuse of office, corruption and unethical conduct, breach of integrity, maladministration, delay, injustice, discourtesy, inattention, incompetence, misbehaviour, inefficiency or ineptitude. The PCSC is not independent from the executive, as officials are appointed by the president, to whom they also report. The PCSC receives regular funding and has a full-time staff; nonetheless, some sources suggest that the Committee remains understaffed and in need of more resources to handle high rates of complaints, as reported in a December 2009 article by Kenya Broadcasting Corporation. According to the third quarterly report released by the PCSC, poor service from the Kenyan police, including abuse of office and unethical conduct, has emerged as the issue most complained about by the public. Earlier in 2009, the PCSC complained that the institutions it is mandated to oversee have refused to respond to complaints against them slowing down the pace of action on complaints, as pointed out in an August 2009 article by The Kenya Weekly Post. An Ombudsman Bill is currently in formulation and it is expected to give the PCSC powers to summon officials and to demand for documents.

  • E-Governance: There have been direct efforts to automatise the tax and customs services which have, together with the reduction of the road transport licences, drastically reduced direct contact between the Kenya Revenue Authority and the public. The Internet portal of the Government of Kenya portal provides links to ministry websites and local authorities as well as to the Directorate of E-Governance portal and Kenya Revenue Authority, which offer valuable information and services to companies and individuals. This includes business registration, e-tax registration/payment, VAT refund claims forms, and road transport, customs and land rent forms. Traders can now submit their documents online through an electronic system. The government aims at further improving Kenya's investment climate and recovering lost ground in the fight against corruption by digitising information of key sectors in the economy, including the procurement sector, the Lands ministry, the judiciary and the business registry, by 2011, as reported in a December 2009 article by Daily Nation.

  • Public Procurement: The Public Procurement and Disposal Act 2005 was enacted in December 2006 to promote more unified and transparent public procurements, and established the Public Procurement Oversight Authority (PPOA) to oversee all procurement matters. The PPOA, under the Ministry of Finance, is the agency responsible for policy formulation and implementation as well as oversight of the public procurement process in Kenya. The PPOA is mandated with the responsibility of ensuring that procurement procedures established under the act are complied with, monitoring the procurement system and reporting on its overall functioning. It provides advice and assistance to procuring entities, and develops, promotes and supports the training and professional development of staff involved in procurement. Procurement regulations can be obtained and past reviews can be accessed and new reviews lodged through its website. All major transactions require competitive bidding by way of open tender, with provisions that allow for restricted tendering, direct procurement and requests for proposals. Unsuccessful bidders can challenge procurement decisions in courts. The 2005 Act provides that companies guilty of violations of public procurement regulations, such as bribery, may be debarred at the discretion of the director general; however, according to Global Integrity 2008, it is unclear whether companies that have previously violated regulations are barred from future activities. According to a December 2009 article by Daily Nation, Kenya is in the process of automatising the procurement sector, which has been identified as the major route exploited by corrupt state officials. The current procurement legislation is an effort to curb loss of public funds, stipulating strict operational measures and penalties for breach, in an attempt to eradicate corruption in tendering processes, as assessed by the US Department of State 2009.

  • Whistle-Blowing: According to the Anti-Corruption and Economic Crimes Act and the Witness Protection Act 2006, no disciplinary action may be taken against any private or public employee, who assists an investigation or discloses information for such an investigation. Courts are required to conceal or remove any information that may disclose the identity of the informer, and to provide relocation and identity change if required. Global Integrity 2008 reports that it is not clear how effective this protection is in practice as several whistle-blowers that have exposed high-level corruption have fled the country. In May 2008, the government launched a multi-sector task force to formulate a framework for the implementation of the Witness Protection Act 2006. According to Transparency International's Global Corruption Report 2009, this task force is required to develop a programme that will protect vulnerable witnesses. Public corruption should be reported to the Kenya Anti-Corruption Coalition's (KACC) anonymous reporting system. The Ministry of Finance also operates a whistleblower reporting system, and the Kenya Revenue Authority operates a complaints and information centre.

  • General Comments on the Public Anti-Corruption Initiatives: Major corruption scandals have damaged the current government's credibility, and there have been major setbacks in the fight against corruption. The strategy for combating corruption in Kenya has been criticised for being a 'grafting' approach, meaning that there are only weak institutional and legislative ties between the anti-corruption efforts and to other parts of the public system. The many shifting anti-corruption agencies during the last decade can be seen as a symptom of this lack of institutional anchorage. Critics have warned that the disparity in resource allocation between the highly-funded investigative KACC and the Attorney General could result in meticulously investigated corruption cases failing to lead to convictions because of weaknesses in prosecution caused by resource constraints. Competing agency mandates have also given rise to adversarial relationships between anti-corruption agencies that desperately require the opposite if they are to produce solid results. The country is perceived to have slackened its campaign against corruption because of the failure to prosecute and convict the perpetrators of the infamous Goldenberg scandal under the Moi regime or of the Anglo-Leasing scams under the Kibaki administration. Furthermore, three of the four government ministers who were forced to resign because of corruption scandals have later returned to the cabinet. The general apathy towards the government's anti-corruption efforts is also evident in data from Afrobarometer 2008, which reports that a large proportion of households consider all or most of the officials throughout the political system at both central and local levels, including the President, to be involved in corruption.