Enhancing Preventive and Punitive Mechanisms in the Fight Against Corruption and Unethical Practices (KE0011)

Status quo or problem/issue to be addressed Despite there being a number of initiatives to fight corruption going back ten years, corruption in Kenya remains pervasive and endemic. It’s one of the biggest challenges facing Kenya today. It undermines our security, accountability systems, access to services among others. Tackling both the supply and demand side of corruption is a necessary imperative to further accountability for corruption cases. Main objective To minimize corruption and wastage for better service delivery to the citizen in order to achieve national aspirations as contained in the Kenya national vision2030. Brief description of commitment Enforcement of culture of integrity is central to effectively addressing corruption and minimizing its impact on society hence contributing to the realization of Goal 16 of the SDGs. To achieve this all stakeholders in the corruption value-chain need to collaborate in reducing the vice.

2. Preventive and punitive mechanisms against corruption

Commitment Text:

Title: 2. Enhancing preventive and punitive mechanisms in the fight against corruption and unethical practices

Status quo or problem addressed by the commitment: Despite there being a number of initiatives to fight corruption going back ten years, corruption in Kenya remains pervasive and endemic. It’s one of the biggest challenges facing Kenya today. It undermines our security, accountability systems, access to services among others. Tackling both the supply and demand side of corruption is a necessary imperative to further accountability for corruption cases.

Main objective: To minimize corruption and wastage for better service delivery to the citizen in order to achieve national aspirations as contained in the Kenya national vision2030

Milestones:

Anticorruption and Ethics Regulatory Reforms

Milestone 2.3. Legal reforms to enhance the effectiveness of the Ethics and Anti-Corruption Act and Leadership and Integrity ACTs, Economic Crimes ACT etc

Milestone 2.6. Finalize and adopt the National Policy Framework on Ethics and Anti-Corruption.

Legislate Whistleblower Protection

Milestone 2.4. Enact a Whistle Blower Protection, Anti-Bribery Bill and False Claims legislation.

Anti-Corruption Partnerships

Milestone 2.1. Establish a public-private partnership for information sharing that brings together governments, civil society and private sector to detect, prevent and disrupt corruption

Milestone 2.7. Mount and Sustain a values/ethics campaigns by civil society, government and private sector on anti-corruption

Increase corruption monitoring

Milestone 2.2. Develop with civil society and private sector, a technology driven project monitoring portal for citizens to participate in project identification, evaluation, report and provide feedback to enhance accountability in government initiatives.

Implement and enforce Anti-corruption regulations

Milestone 2.5. Enforcing the Code of ethics for suppliers undertaking public procurement, including professional enablers (lawyers and accountants)

Milestone 2.8. Enforce adherence to provisions of Executive Order No. 6 on Ethics and Integrity in the Public Service

Improve preventive and punitive anticorruption measures

Milestone 2.9. Enhance structured coordinated multi-agency effort in tackling corruption.

Editorial Note: Milestone 2.10, 'Improve Corruption Perception Index (CPI) ranking,' will not be assessed, as this is an aspirational activity that does not have measurable or verifiable steps for implementation. The CPI is a tool developed by Transparency International to annually rank countries by their perceived levels of corruption, as determined by expert assessments and opinion surveys.

Note also: The milestones for this commitment have been clustered by six thematic groupings. The original milestones have been reorganised under these themes but retain the same numbers as in the action plan.

Responsible Institutions: Office of Attorney General & Department of Justice; Ministry of Public Service, Youth and Gender; The Presidency; Office of the Director of Public Prosecutions; Ethics & Anti-Corruption Commission; Parliament and Senate; Business Against Corruption Kenya (BACK); TI Kenya; and Society for International Development (SID) International Commission of Jurists; Kenya Private Sector Alliance (KEPSA); Kenya Association of Manufacturers (KAM); Katiba Institute; AfriCog; Ushahidi

Start Date: January 2016

End Date: June 2017

Context and Objectives

It is estimated that Kenya loses up to SH 608 billion annually through corruption.^{[Note68: Reuters, 'Sh608 billion of Kenya budget lost to corruption every year - EACC chairman Kinisu' (The Star, 10 Mar. 2016) https://www.the-star.co.ke/news/2016/03/10/sh608-billion-of-kenya-budget-lost-to-corruption-every-year-eacc_c1310903.]} Corruption poses a major threat to the country’s economic growth, democracy, and stability by depleting funds that could be used for vital public service delivery, such as health, education, water, sanitation, and social protection.

The anti-corruption agenda was a key component of the Jubilee Coalition's manifesto in 2013 and the promise to 'clean up government by introducing some of the toughest anti-corruption legislation in the world.' The Jubilee leadership promised zero tolerance for corruption and abuse for personal gain in addition to a commitment to remove parliamentary immunity to corruption charges. Despite these pledges, key anti-corruption agencies so far have failed to prevent or limit theft of public goods and have achieved limited progress in recovery of stolen assets and even fewer convictions for those who have stolen or abetted the theft and misuse of public resources.

This commitment was not well defined and included a number of independent milestone activities. The IRM has clustered them under six thematic groupings to better assess their aims and completion. All are related to various national anticorruption frameworks, but most of the activities described in this cluster are aspirational and do not include clear, concrete, and specific steps for making progress in implementing anti-corruption policies. Several of the commitment activities also propose internal government reforms that do not include a public-facing element, and therefore have unclear relevance to OGP values.

Anticorruption and Ethics Regulatory Reforms (Milestones 2.3 and 2.6)

Kenya has passed a number of anticorruption and ethics acts between 2003 and 2012.^{[Note69: At the national level, the government has implemented anti-corruption measures and enacted an anti-corruption legal framework. In 2003, the anti-corruption legislation included The Corruption and Economic Crimes Act, No 3 of 2003 (ACECA) and the Public Officer Ethics Act, No 4 of 2003 (POEA). Later, the Public Procurement and Disposal Act was passed in 2005 and the Proceeds of Crime and Anti-money Laundering Act in 2009. The government passed the Independent Ethics and Anticorruption Commission Act (EACCA), the Public Finance Management Act 2012, and Leadership and Integrity Act 2012 after promulgation of the 2010 Constitution of Kenya.]} Despite the existence of ethics laws, there have been many recent corruption scandals in Kenya, particularly in public financing, service delivery, and the health sector.^{[Note70: It involved fraudulent withdrawal of billions of shillings from the Central Bank of Kenya (CBK) as export compensation for gold that was never exported; Moses Njagih, 'National Youth Service (NYS) probe turns to Sh6.3b paid through 28 banks' (Standard Digital, 27 Nov. 2016) https://www.standardmedia.co.ke/article/2000224870/national-youth-service-nys-probe-turns-to-sh6-3b-paid-through-28-banks; Eunice Kilonzo, 'Youth Fund boss at centre of Sh480m scandal resigns,' (Daily Nation, 25 Mar. 2016) https://www.nation.co.ke/news/Embattled-Youth-Fund-chair-Bruce-Odhiambo-resigns/1056-3132994-920ovmz/index.html. ] The main challenge is that existing laws and regulations are scattered among different statutes and are consequently enforced by different agencies. The disjointed legal and institutional framework to address corruption allows for malpractice such as bribery, misuse of state and public resources, money laundering and crime.[Note71: The Money Factor in Poll Race: A monitoring Report of the 2007 General Elections (Coalition for Accountable Political Financing (CAPF), 2008).] If fully implemented, the proposed commitments could be a step forward to improve coordination across government agencies and effectively enforce anticorruption laws and accountability mechanisms. However, the commitment does not specify which agencies will lead the coordination effort, how the laws will be better enforced, or how progress could be measured and monitored in a meaningful way. Therefore, the specificity of this commitment is low, its relevance to OGP values cannot be determined, and the potential impact is minor.}

Legislate Whistleblower Protection (Milestone 2.4)

The purpose of this commitment is to propose, draft, and enact three pieces of legislation. The current whistleblower protection framework is under the Anti-corruption and Economics Act 2003 and the Witness Protection Act 2006. If a stand-alone law were enacted, it could consolidate and review the provisions of the two laws that currently govern whistleblower protection. The new law would protect citizens across all branches of government from retaliatory action for voluntarily disclosing information about dishonest or illegal activities occurring in a government organisation. This could help to advance government accountability to public.

The anti-bribery bill has been enacted into law, and provides for the prevention, investigation and punishment of bribery. The purpose of this milestone is to fully implement the existing law. The false claims legislation bill has already been drafted and needs to be passed into law. The False Claims Bill seeks to give private individuals, civil society groups and other interested parties power and financial muscle to institute public assets recovery proceedings.

Anti-Corruption Partnerships (Milestone 2.7 and 2.1)

Corruption in Kenya persists despite anti-corruption measures implemented by the government, such as enacting anti-corruption and good governance legislation.^{[Note72: These include the Anti-Corruption and Economic Crimes Act, the Public Officer Ethics Act 2003, the Government Financial Management Act, and the Public Audit Act. Empowered by the Anti-Corruption and Economic Crimes Act, the government did set up the National Anti-Corruption Campaign Steering Committee in May 2004 to spearhead a national campaign to ensure zero-tolerance for corruption. On 9 September 2004, the President, acting under the aforesaid Act, approved the nomination of the Director and three assistant directors to the newly launched Kenya Anti-Corruption Commission.]} Public Private Partnerships (PPPs) and anticorruption and values/ethics campaigns (Milestone 7) could bring together government, civil society and the private sector to detect and disrupt corruption through information sharing and civic pressure. If fully implemented, the activities in this commitment could raise the profile of anticorruption efforts. However, as written the commitment milestones do not specify clearly how citizens will be engaged, or how their participation would relate to enforcing consequences for perpetrators of corruption. Given that a public-facing element is not explicitly included in the commitment text, these milestones are of unclear relevance to OGP values.

In addition, prior to development of the action plan, the government had partnered with civil society and other stakeholders in the fight against corruption. For example, in 2014, the government established a National Anti-Corruption Campaign Steering Committee, comprised of government officials, CSOs and the private sector, to ensure zero-tolerance on corruption.^{[Note73: The campaign steering committee was established via Gazette Notice No. 6707 dated 19 September 2014.]} The campaign employed sensitisation and awareness activities to empower the public to fight corruption. The government also uses the Integrated Public Complaints Reporting Mechanism (IPCRM)^{[Note74: The composition of the Complaint Mechanism is drawn from National Anti-Corruption Campaign Steering Committee, Commission on Administrative Justice, Kenya National Commission on Human Rights, National Commission on Integration and Cohesion, and Transparency International - Kenya. ]} to address complaints received by key state institutions in the fight against corruption that fall within their mandate. Given that similar initiatives have already been carried out, the milestones’ potential impact is considered minor to none. The milestones are aspirational and do not specify how any of the previous efforts in this area will be improved upon or changed to be more effective.

Increase Corruption Monitoring (Milestone 2.2)
Prior to the development of the action plan, no official corruption monitoring mechanism at the national level existed for citizens. This technology-driven project will be a monitoring portal that allows citizens to participate in anticorruption project identification, evaluation, and reporting. Citizens will be able to provide feedback to enhance accountability in government initiatives. Citizen-led monitoring could increase public accountability through enabling the public to perform a watchdog role. However, the commitment does not specify how the portal will be developed, what information it will provide, or how citizens will be able to participate in corruption monitoring. Therefore, the potential impact is minor.

Implement and Enforce Anti-Corruption Regulations (Milestones 2.5 and 2.8)

This commitment is to enforce two current anticorruption regulations. First, ensuring compliance with the Code of Ethics in public procurement, and second, Executive Order No. 6 on Ethics and Integrity in public service delivery. This commitment remains largely aspirational as it does not include specific steps or actionable changes for enforcing the current regulations. The specific government bodies overseeing the compliance are not named, and no accountability mechanism is defined to measure progress or verify improvement. Therefore, the specificity is low and the potential impact is minor.

Improve Preventive and Punitive Anti-Corruption Measures (Milestone 2.9)

Transparency International’s Global Corruption Barometer (GCB) 2015^{[Note75: Afrobarometer, People and Corruption: Africa Survey 2015 - Global Corruption Barometer, (Transparency International 1 Dec. 2015) https://www.transparency.org/whatwedo/publication/people_and_corruption_africa_survey_2015. ] indicates that 70 percent of Kenyans think that government is doing a poor job at handling corruption, with the statistics showing-increasing rates of corruption. This commitment aims to improve preventive and punitive measures for corruption for corruption but it does not include a public-facing element, and is therefore of unclear relevance to OGP values.}

Completion

2.4 Legislate Whistleblower Protection: Limited

This commitment sought to enact a new whistleblower protection law, Anti-Bribery Bill and False Claims legislation. The State Law Office, in close collaboration with stakeholders, fast-tracked the enactment of several laws. The Bribery Act^{[Note76: Kenya Gazette Supplement No. 197 (Acts No. 47) (Nairobi: The Government Printer, 30 Dec. 2016) kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/BriberyAct_47of2016.pdf.]} was drafted and enacted into law on 23 December 2016. The State Law Office sought input from relevant state and non-state actors and stakeholders including CSOs such as TI- Kenya. The Kenya Association for Manufacturers (KAM) was also engaged in the development and enactment of the Bribery Act 2016. The Act provides for prevention, investigation and punishment of bribery and entered into force on 13 January 2017.

The Whistle-blowers Protection Bill,^{[Note77: Office of the Attorney General and Department of Justice, 'Developments at State Law Office and Department of Justice' (2016) http://www.statelaw.go.ke/score-card/. ]} which had been drafted prior to and amended during the action plan period, has not made any progress. A False Claims Bill that was also drafted prior to the action plan has not made any progress. These Bills had still not passed into law when the eleventh Parliament went into recess for the August 2017 elections, and will need to be reintroduced in the new twelfth Parliament.

Remaining Milestones: None

There is no publicly available evidence that the government has undertaken any activities to meet the objectives highlighted under milestones 2.1, 2.2, 2.3, 2.5, 2.6, 2.7, 2.8, or 2.9 in the first year of implementation. The researcher interviewed the involved actors and responsible institutions like TI Kenya, Society for International Development (SID), International Commission of Jurists, Kenya Association of Manufacturers (KAM) and Ushahidi. These commitments are based on ongoing initiatives under broader anticorruption policy in Kenya, but there is no specific evidence that the commitments have been implemented.

Next Steps

Many of the anticorruption commitments contained aspirational goals but lacked clear, measurable, time-bound steps to move forward and affect change.

For the next action plan, the IRM researcher recommends including a theme on anti-corruption with clear and measurable activities that add value to the pre-existing anti-corruption policies and government practice.

Government needs to ensure effective enforcement of the existing anticorruption laws. To ensure the accountability of public institutions in charge of anti-corruption, they should be subject to the Access to Information Law and comply with disclosure.

Further, the next steps in implementing the anticorruption portal should be to define the leading institution that will oversee its development, and give detailed requirements for how the portal will enable citizens to participate in tracking anticorruption projects, proposing ideas, and reporting on violations. The government should allow a period of public input on how to create the portal and develop clear, measurable steps and a timeline for implementation.

2. Preventative and Punitive Mechanism Against Corruption

Commitment Text:

Title: 2. Enhancing preventive and punitive mechanisms in the fight against corruption and unethical practices

Status quo or problem addressed by the commitment: Despite there being a number of initiatives to fight corruption going back ten years, corruption in Kenya remains pervasive and endemic. It’s one of the biggest challenges facing Kenya today. It undermines our security, accountability systems, access to services among others. Tackling both the supply and demand side of corruption is a necessary imperative to further accountability for corruption cases.

Main objective: To minimize corruption and wastage for better service delivery to the citizen in order to achieve national aspirations as contained in the Kenya national vision 2030.

Milestones:

Anti-corruption and Ethics Regulatory Reforms

Milestone 2.3. Legal reforms to enhance the effectiveness of the Ethics and Anti-Corruption Act and Leadership and Integrity ACTs, Economic Crimes ACT etc

Milestone 2.6. Finalize and adopt the National Policy Framework on Ethics and Anti-Corruption.

Legislate Whistleblower Protection

Milestone 2.4. Enact a Whistle Blower Protection, Anti-Bribery Bill and False Claims legislation.

Anti-Corruption Partnerships

Milestone 2.1. Establish a public-private partnership for information sharing that brings together governments, civil society and private sector to detect, prevent and disrupt corruption

Milestone 2.7. Mount and Sustain a values/ethics campaigns by civil society, government and private sector on anti- corruption

Increase corruption monitoring

Milestone 2.2. Develop with civil society and private sector, a technology driven project monitoring portal for citizens to participate in project identification, evaluation, report and provide feedback to enhance accountability in government initiatives.

Implement and enforce anti-corruption regulations

Milestone 2.5. Enforcing the Code of ethics for suppliers undertaking public procurement, including professional enablers (lawyers and accountants)

Milestone 2.8. Enforce adherence to provisions of Executive Order No. 6 on Ethics and Integrity in the Public Service

Improve preventive and punitive anti-corruption measures

Milestone 2.9. Enhance structured coordinated multi-agency effort in tackling corruption.

Editorial Note: Milestone 2.10, “Improve Corruption Perception Index (CPI) ranking,” will not be assessed, as this is an aspirational activity that does not have measurable or verifiable steps for implementation. The CPI is a tool developed by Transparency International to annually rank countries by their perceived levels of corruption, as determined by expert assessments and opinion surveys.

Note Also: The milestones for this commitment have been clustered by six thematic groupings. The original milestones have been reorganized under these themes but retain the same numbers as in the action plan.

Responsible institutions: Office of Attorney General & Department of Justice; Ministry of Public Service, Youth and Gender; The Presidency; Office of the Director of Public Prosecutions; Ethics & Anti-Corruption Commission; Parliament and Senate; Business Against Corruption Kenya (BACK); TI Kenya; and Society for International Development (SID) International Commission of Jurists; Kenya Private Sector Alliance (KEPSA); Kenya Association of Manufacturers (KAM); Katiba Institute; AfriCog; Ushahidi

Start date: January 2016

End date: June 2017

Commitment Aim

This commitment included a number of activities to improve national anti-corruption policies. Milestone 2.4, in particular, aimed to propose, draft, and enact legislation concerning whistleblower protection, anti-bribery, and false claims. It should be noted, however, that most of the activities lacked specific steps for marking progress towards enacting anti-corruption legislation and tools. Additionally, the milestones were based on ongoing initiatives under broader anti-corruption policy.

Status

Midterm: Limited

Only Milestone 2.4 saw progress by the midterm. The Anti-Bribery Bill was enacted into law in December 2016, while the false claims and whistleblower protection bills were drafted, but not enacted. The remaining eight activities were not started.

End of term: Limited

According to surveyed civil society representatives such as Transparency International (TI) Kenya, the Society for International Development (SID), the International Commission of Jurists, the Kenya Association of Manufacturers (KAM), and Ushahidi, as well as an interviewed representative from the Ministry of Justice in the Office of the Attorney General, there was no evidence that the government undertook additional activities towards implementing the milestones during the second year.

Currently, the Whistle-blowing Protection Bill that was previously developed in 2016 is under consideration for adoption. [31] While the Anti-Bribery Act requires companies listed in the Nairobi Securities Exchange to have whistleblower protection policies in place, there is limited information on implementation by firms with delayed enforcement on provisions prohibiting passive and active commercial bribery, such as inducements to secure tenders.

Did It Open Government?

Civic Participation: Did Not Change

Public Accountability: Marginal

The passing of the 2016 Anti-Bribery Act is a positive step towards addressing corruption and bribery in Kenya. The Act has far reaching implications on Kenyan businesses as well as foreign organizations doing business in Kenya. It provides for specific requirements that private entities must have in place in the prevention of bribery. The Act also provides for an effective coordination and accountability framework in the prevention, investigation, and prosecution of acts of bribery. The Act creates a legal obligation on a person of authority in a private entity [32] who becomes aware of an act of bribery to report the matter to the Ethics and Anti-Corruption Commission within 24 hours.

While a specific whistleblower protection bill was not passed, the Anti-Bribery Act also provides protection for whistleblowers and witnesses. Section 21 imposes a fine not exceeding Sh1 million or imprisonment for a term not exceeding one years on anyone who demotes, admonishes, dismisses from employment, transfers to unfavorable working areas, or otherwise harasses and intimidates a whistle blower or a witness. [33]

In the Jubilee Coalition’s 2013 manifesto, the Kenyan government promised zero tolerance for corruption and abuse for personal gain, in addition to a commitment to remove parliamentary immunity to corruption charges. [34] Despite these pledges, key anti-corruption agencies have failed to reduce the theft of public goods, [35] recover stolen assets, or convict those who have stolen or abetted the misuse of public resources. [36] According to an audit by the Ethics and Anti-Corruption Commission, Kenya loses one-third of its national budget, about Sh666 billion, to theft and mismanagement every year. [37] An analysis of the Auditor General Report by civil society shows that only Sh590 billions of government expenditure has been properly accounted for, representing 13 percent of total expenditure. Sh4.2 trillion, some 87 percent, was either lost, not spent properly, or not accounted for, showing that Sh368 billion of the Sh1 trillion is spent without any accountability. Major corruption scandals remain unsolved, including the Kenya Pipeline Company (KPC), the National Hospital Insurance Fund (NHIF), the National Youth Service (NYS), “Chicken Gate,” and the misappropriation of devolved funds. [38]

Carried Forward?

This commitment has not been carried forward to Kenya’s next action plan. However, the third action plan notes that in order to realize the commitments contained therein, which are in line with the governments Big Four Agenda, ^[39] anti-corruption measures must be a cross cutting theme. ^[40]