Graft in civil service traced back to 1972

Officials in both the government and the private sector concede that the 1972 Ndegwa Commission Report, which allowed public officers to engage in private business, stands on the way of any serious efforts to eradicate graft in the public sector 32 years later.

"It was the beginning of the problem because the safeguards were not adhered to. One of the key things that has not been observed is the rule that those being employed are supposed get clearance from their immediate bosses, who are to ensure that whatever business their juniors are engaged in does not amount to conflict of interest," said the assistant minister for justice and constitutional affairs Robinson Githae.

The assistant minister, is however optimistic that the new Public Officers and Ethics Act­one of the first laws to be enacted by the current government­ is set to change the way of doing things in the public sector "since every ministry has undertaken to educating public officers on the dangers of conflict of interest".

While corruption in the civil service during the Kenya African National Union [KANU] rule had been more or less accepted as a way of life, NARC came to power with much gusto to rid the public sector of the vice.

But 17 months down the line, NARC is now being accused of condoning corruption among ministers and top civil servants, with the latest being the Ksh 2.7 billion ($3.4 million) passport tender scandal that saw the suspension of Treasury permanent secretary, Joseph Magari and his Home Affairs counterpart, Sylvester Mwaliko.

Yet, the government, in the face of poor terms of service in the public sector, is shy to stop outright, civil servants from engaging in private business, even as senior government officials concede that it is difficult to determine the conflict of interest among those who are determined to hide their dealings.

"It is true that the Ndegwa commission has been cited as one of the major cause of corruption in the civil service. Obviously, the commission's recommendations were not implemented in a way the authors intended it," said the deputy director of Transparency International (Kenya), Mwalimu Mati, who further observed that the biggest problem in Kenya has always been the implementation of existing law.

A recent survey by the same organisation revealed that petty type of corruption involving ordinary citizens ­known as the front office corruption­dropped significantly in the first year of NARC rule. Though, Mr Mati says, that they did not have the instrument to measure high level corruption that takes place in exclusive clubs, away from the eyes of ordinary people.

The three decade old commission report sanctioned civil servants to engage in private business while holding public office, as a means of augmenting their meagre income after the then Jomo Kenyatta government conceded that that it was unable to improve civil service terms despite recognising that most civil servants were working on low pay and poor terms of service.

It was also part of the Africanisation process, with the government having realised that it was the civil servants that had the education, the entrepreneurial spirit and the capital, and locking them out could have been detrimental to the economy of the young nation.

But this was implemented on condition that there was going to be a stronger code of ethics as a safeguard. It was also agreed that there was going to be an ombudsman, to receive complaints of corruption among civil servants.

All these did not happen and as a result, some civil servants soon began to engage in even illegal activities such as game poaching and ivory trade, smuggling of precious stones and coffee, and megacorrupt deals in capital development projects.

Things changed for the worst 20 years ago when a major disparities started emerging between the terms of service and the private sector and the civil service, forcing the latter to embark on large scaleabuse of office.

"Two decades ago, the salaries in the civil service and the private sector were at par. But gradually, the private sector improved while the public sector was at standstill. That is why we are advocating a small, well-remunerated civil service with the aim of ensuring that at least a clerk in the public service gets the same pay as his counterpart in the private sector, "said Mr Githae.

The police force, has specifically come under the limelight with Mr Githae conceding that 60 percent of the Matatus the public service vehicles - are owned by policemen­either directly or through nominees­ the majority of them from the Traffic department that are supposed to keep law and order on the roads.

Recently, police commissioner, Brig Mohammed Hussein Ali, in reference to policemen who own matatus, warned the law enforcers against involvement in private business that are in direct conflict with their duty, or face disciplinary action.

Notably, it was recently discovered that high ranking officials at the ministry of Roads and Public Works­mostly engineers­had formed their own companies which they awarded tender, supervised their own contract and processed their own payment.

The concerned minister, Raila Odinga had to issue an ultimatum till April 2003 for those with conflict interest to either serve the government or resign and concentrate on their private business.

The same issue is currently the source of a major debate in the health sector, where the minister, Mrs Charity Ngilu, ordered doctors working in public hospitals but owning private clinics to either close them or get out.

Despite stiff resistance from the medical fraternity and the realisation by the government that the order was not enforceable, the move was prompted by the practice where some unscrupulous doctors refer patients to their private clinics even for conditions that they could easily handle in public health institutions.

So far, only two ministers have publicly announced their resignation from their previous business to avoid conflict of interest at the advent of NARC administration in January 2003. While justice and constitutional affairs minister Mr Kiraitu Murungi resigned from his law firm, tourism and information minister, Mr Raphael Tuju, relinquished the directorship of Ace Communications and went further to withdraw the application for a broadcast licence.

The Public Officer Ethics Act, 2003, has put in place a code of conduct for the public service as a means of establishing an ethical regime in the public life, by making the conflict of interest­ that was previously punishable though administrative sanctions­a criminal offence.

Section 11 of the Act states that "A public officer shall not award a contract or influence the award of contract to himself, a spouse or relative, a business associate, a corporation, partnership or other body in which the officer has an interest".

Yet, observers maintain that is it is difficult to establish those operating business through nominees, and more so difficult to establish vested interests when it comes to the award of contracts.