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June 2003

New legislation elicits mixed reactions

Fred Oluoch

Initial widespread optimism in Kenya over efforts by the new National Rainbow Coalition (NARC) government to stamp out corruption in the much maligned civil service and the political class, are increasingly dissipating as the defects of the much glorified new legislation come to the fore.

The recently enacted, Public Officers Ethics Act, 2003, requires senior public servants, including politicians, judges, heads of public corporations and the president to declare their wealth and that of their spouses by the end June, in a move hailed as a milestone towards the entrenchment of ethical conduct and moral probity in public office in Kenya.

Yet, questions are now emerging whether the new legislation will succeed in uprooting the entrenched corrupt tendencies in the public service as well as the political class, even as president Mwai Kibaki recently took the lead by stating that he is ready to declare his wealth as per the new order.

Topping the list, is the criticism that the new legislation that is based on the premise that the conduct of public officers have been extremely low for the past three decades has not made any dramatic departure from the existing Civil Service Code of Conduct that had been largely ignored by public officers.

According to Dr Fred Matiangi. a lecturer at the University of Nairobi, "It could have been more prudent to tighten the existing code and provide an enabling political environment for its enforcement other than initiating a parallel legislation with almost similar objectives .

Besides observations that the new legislation is not "harsh" enough to act as a deterrent for the corruption-riddled public sector, critics argue that there was no attempt to conceptualise the political environment under which the public service operates, especially in spelling out that public servants should no longer act at the whims of individuals in power.

Critics argue that it is not that Kenya lags far behind developed economies in enacting ethics legislation, but has simply been let down by a patronizing political class that has in the past allowed public officers to use their offices to improperly enrich themselves for political expedience.

Notably, Kenyans, especially in the twilight days of the previous Kanu regime, had almost succumbed to the phenomenon of "orders from above", where for instance, the Registrar of Societies would decline to register a new political party when it was deemed to threaten the survival of the governors.

Thus, analysts say, the Act has failed to draw the line between civil servants and political appointees, who see themselves as answerable to the political establishment of the day, and not the public in general.

But what has cast doubt over the viability of the new legislation, is secrecy provision that prohibits the disclosure of the declared wealth unless under the authority of the courts. This provision, according to Mr George Kegoro, secretary to the Law Society of Kenya (LSK), "has robbed the public of their right to ensure that the legislation has been complied with to enable them to police it".

The reason advanced by the government is that unfettered access by the public to what individuals own could make a certain class of people susceptible to blackmail by criminals, though the general public mood is that the political class is determined, as in the past, to conceal their ill-gotten wealth.

Notably, powerful politicians, especially those connected to the previous Kanu regime, are yet to be compelled to pay the money they owe to the state-owned National Bank of Kenya after attempts by the former finance minister, Simeon Nyachae, to make the debts public were fiercely resisted by the then ruling class.

However, those supportive of the legislation, are upbeat that although it might have fallen short of some expectations, the mere fact that civil servants and politicians are aware that they will be required to account for what they own, is enough to discourage future corrupt practices by those charged with public offices.

This school of thought note that it is an unequivocal message to public servants that they have to live within their means, and that they will be hard put to explain assets that are not commensurate with official earnings.

But that may be as far as its benefits goes, with analysts pointing out more shortcomings in the legislation that is increasingly emerging as a political response to NARC's pre-election promises rather than a well thought out mechanism to weed out corruption in the civil service and among politicians.

As it were, all the six committees that have been set up to look into the conduct of public officers since independence in 1963, have tended to emphasise on remuneration and mobility at the expense of ethics and probity.

The most memorable one being the 1972 Ndegwa Commission that allowed civil servants to dabble in business as a means of augmenting their meager earnings. This decision has been fingered by various analysts as the one that opened the door for corruption in the public sector and promoted the conflict of interests, since most civil servants proceeded to establish their own firms that competed for tenders in various ministries where they had the ability to influence the outcome of the bidding.

To others, Kenya ought to have a adopted the South African model in which restitution was given priority over prosecution, thus managing to recover a significant amount of looted public property.

Currently, the Kenyan criminal law lays more emphasis on punishment rather than reparations, thus those who have looted public property continue to enjoy their ill-gotten wealth after a few years in jail.

Quite contentious is the provision that says: "No declaration is required if, on or before the last day of submitting the declaration, the public officer ceases to be a public officer who is required to submit a declaration," a loophole in which those public servants who have amassed wealth illegally for years could simply resign and escape the dragnet.

Among other criticisms is that the government ought to have separated the question of ethics from the mechanism for apprehending wrongdoers, in addition to the widespread feeling that the lower cadres of public servants who are known to act as the "legmen" for the big shots, have been left out of the net.

Even its proponents concede that there was no attempt to create public awareness to establish a body of knowledge to augment the legislation, just like it was the case with the Public Service Code of Regulations that has remained a closely guarded "in-house" mechanism that had little concern with those outside the public service.

There are also fears that there might be lack of uniformity in the wealth declaration process, since they will be made to different bodies, i.e concerned commissions, raising fears of possible discrepancy in its application.

The concern stems from the fact that the relevant bodies the Public Service Commission, the Judicial Service Commission, Teachers Service Commission, the Parliamentary Service Commission, and the Electoral Commission of Kenya have full time responsibilities and have not been restructured to handle declarations.

This is in addition to the fact that the concerned bodies have not been provided with necessary infrastructure for the same. The legislation leaves it at the discretion of each of these bodies "to establish a Code of Conduct and Ethics for the public officers for which it is the responsible commission".

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