i
Ombo D. Malumbe
CORRUPTION AND SOCIAL ECONOMIC
RIGHTS IN KENYA
ii
Published by: Kenya Journal of Law and Justice Copyrights © KJLJ Year of Publication August 2015
Ombo D. Malumbe*
* LLB (Hons) Mount Kenya University School of Law; Chairperson Kenya Journal of Law and Justice; 2nd Vice President International Youth Action Against Terrorism.
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Table of Contents 1.0 CHAPTER 1 ..................................................................................................................... 1
1.1 Background of the Study ............................................................................................ 1
1.1.1 Introduction ............................................................................................................. 1
1.1.2. Kenya ........................................................................................................................ 3
1.2 Statement of the Problem .......................................................................................... 4
1.3 Objectives of the research .......................................................................................... 4
1.4 Research Questions ..................................................................................................... 5
1.5 Justification of the study ............................................................................................. 5
1.6 Literature Review ......................................................................................................... 6
1.7 Limitation to the study................................................................................................ 7
1.8 Research methodology ................................................................................................ 7
2.0 CHAPTER 2 ..................................................................................................................... 8
2.1 Introduction.................................................................................................................. 8
2.2 The History of Corruption in Kenya ....................................................................... 9
2.3 Cases and Scandals of Corruption in Kenya .........................................................15
2.4 Definition of Social Economic Rights ...................................................................17
3.0 CHAPTER 3 ...................................................................................................................21
3.1 Introduction................................................................................................................21
3.2 Constitution of Kenya ..............................................................................................22
3.3 Leadership and Integrity Act of Kenya .................................................................30
3.4 Other Statutes ............................................................................................................36
3.5 Case Law .....................................................................................................................37
4.0 CHAPTER 4 ...................................................................................................................39
4.1 Introduction................................................................................................................39
4.2 The African Union Convention on Preventing and Combating Corruption ..41
4.3 United Nations Convention Against Corruption .................................................44
5.0 CHAPTER 5 ...................................................................................................................47
5.1 Conclusion ..................................................................................................................47
5.2 Recommendations .....................................................................................................47
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1.0 CHAPTER 1 “If you serve for a whole term, you have refused to fight corruption”
- Professor Patrick Loch Otieno Lumumba
1.1 Background of the Study
Kenya is one of the countries located in the African Continent. Just like the
majority of other States in Africa, Kenya is regarded as one of the States suffering
from corruption.2 However, the citizenry are too ignorant to understand what
corruption is all about. Majority of the citizens do presume that corruption is only
about bribing a person in order to attain certain service or goods and/or help.
Corruption is more than what the layperson may presume. Hence, this research
paper is to enlighten the citizenry and any person who is an enthusiast of the
division of corruption and understanding the ramifications of corruption. As
provided herein above (the title page) corruption is delved into as to make one
understand why and how it affects Human Rights and more specifically social
economic rights.
Human Rights in this sense is Social Economic Rights. Herein under, the general
history of Corruption is delved into prior to discussing any other imperative
matter.
1.1.1 Introduction
Corruption as per the Black’s Law Dictionary:
Depravity, perversion, or taint; an impairment of integrity, virtue, or moral
principle; esp., the impairment of a public official's duties by bribery.
The word ‘corruption’ indicates impurity or debasement and when found
in the criminal law it means depravity or gross impropriety.
2 Business Corruption <http://www.business-anti-corruption.com/country-profiles/sub-saharan-africa/kenya/business-corruption-in-kenya.aspx> (Accessed on the 8th Day of February 2015)
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The act of doing something with an intent to give some advantage
inconsistent with official duty and the rights of others; a fiduciary's or
official's use of a station or office to procure some benefit either personally
or for someone else, contrary to the rights of others.3
For purposes of initiating the discussion, it will be prudent to cling on the
aforementioned definitions, irrespective of the very fact that the same is not
conclusive in nature, but they sprout what corruption is all about. Therefore, the
same will be pegged to Human Rights. Among the three excerpts elicited from the
Dictionary, the third definition of corruption is quite relative to how Human Rights
can be impaired.
It will be prudent to utilize hypothetical examples so that one can understand how
corruption does impair Human Rights.
a. On bribery in the event a Police officer receives a bribe of whatsoever
nature so that he or she can lessen the rules or policy. For instance, such
an act happens in the northern part of Kenya, thereon, some terrorists
manage to transport explosives that will later on be utilized to explode
buildings and/or market places or areas where there is a huge crowd. Such
acts by terrorist will lead to death of many people or injuries and
destruction of other imperative sectors in the society. The inactions and/or
actions of the Police Officer would have majorly regarded to have led to
impairment of Human Rights especially Civil Political Rights, but the same
activities do impair Social Economic Rights: this will be expounded later on.
b. In the event a Public Officer employs a relative, he or she being
incompetent or lacks the required credentials, thereon, the persons
happens to cause death of a person and or make some loose his abilities
(walking, seeing, listening, talking, sense of touch et al.). This will be abuse
of Humans Rights: Social Economic Rights; Thus, one can access the basic
3 Black’s Law Dictionary 8th Ed
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socio-economic rights, however, the standards are poor to an extent that
people do demise due to that oddity.
There are many examples that can be utilized; however, it is presumed that with
the two examples, one can deduce the concept behind this research paper.
1.1.2. Kenya
Not so long ago the President of Zimbabwe Mr. Robert Mugabe asserted the
following as warning to his General, that Zimbabwe should not be "like Nigeria and
Kenya, where you have to reach into your pocket to get anything done,"4 the sentiment was
highly reverted to by the citizens of the aforementioned countries through Social
Media.
Corruption in this sense is not settled to mean Grand Corruption only; this is
because, the kind of corruption that can be uttered as trivial can be give birth to
precarious effects. The famous corruption cases are: The Goldenberg,5 The Czech
Fighter Jets, Passport Equipment System, banking fraud scam worth $1.5 billion,
Grand Regency Scandal, Aglo-Leasing et al.6
The aforementioned cases involve the loss of monies and/or directing monies for
purposes that seems to be below the belt. Therefore, the expected outcome is that,
most citizens will suffer in one way or another due to these activities.
It will be prudent to acknowledge that the application of the fundamental human
rights is not only vertical but also horizontal in nature; thus, a citizen can bring an
action against a fellow citizens, organization, or company et al.7
4 FP ‘Everyone is Corrupt in Kenya, Even Grandmother’ <http://foreignpolicy.com/2014/05/06/everyone-is-corrupt-in-kenya-even-grandmothers/> (Accessed on the 8th Day of February 2015) 5 Charges in Kenya Corruption Scandal <http://www.theguardian.com/world/2006/mar/16/kenya.jeevanvasagar> (Accessed on the 8th Day of February 2015) 6 Shocking Corruption Scandals in Kenya Since 2000 To Present Which Have Never Been Resolved <http://whereiskenya.com/part-2-corruption-scandals-kenya-since-2000-present-day/> (Accessed on the 8th Day of February 2015) 7 Enforcement of The Bill of Rights – Art. 22 (1) & (2) of the Constitution of Kenya, 2010
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1.2 Statement of the Problem
There are many factors that portray why Africa and specifically Kenya is not
developing despite having attained independence half a century ago. This can be
attributed to the poor leadership, the leverage the leaders have towards the
citizenry, the laxity of citizenry to accommodate independent views, the inability
of citizens to detach from negative ethnicity, the element of impunity in various
leaders and other persons who feel are the sole reason the stem of a tree is still
functioning as it supposed to.
When one incorporates the aforementioned factors, it shows how corruption
invites itself from various ventilations afforded to it (corruption) by our poorly
structured society. However, as corruption takes it course as a general societal norm,
every person thinks it is ok. Not because they are not arrested but because most
people take part in it: thus, from the person having low social status to those with
high profiled social status.
It can be asserted that it is due to ignorance. Ignorance is deep in our hearts and
minds; hence, we are blinded like the power of love. However, just like a Religious
Leader who does not tire until his or her demise, it will take us the enlightened to
address the same core issues to the latter without giving up at all. For that reason,
this paper is to enlighten citizens on how corruption affects human rights directly
and indirectly; hence, they should stop taking part in it.
1.3 Objectives of the research
The research paper is to fulfill the mental health of the majority of persons who
will set their eyes on this document. Herein, there will be rich content on what
actually entails corruption and why citizenry and other persons should not make
corruption sufferable.
However, one cannot deviate from a certain malnourished activity unless they
understand the basics, hence, this research paper will interlink corruption and the
two Generations of Rights elicited from the Universal Declaration of Human
Rights. However, the second (2nd) Generation of Rights will be given much weight.
5
The two Generation of Rights are currently regarded as those which are
interrelated, hence, one cannot be looked into and disregarding the other.8
Hence, by persons understanding the basics of what can make a society develop
and that which can make it stagnant or destroyed, it will help us come up with new
laws in action that are sound and complement the law in form rather than mocking
the law in form.
1.4 Research Questions
a) What is corruption to the normal citizen and why is corruption highly
appreciated in the Developing Countries like Kenya.
b) What is corruption as per the legal instruments of Kenya; and how
are corruption cases handled?
c) What is corruption as per the legal instruments of African Union?
d) What does the International Legal instruments provide about
Corruption?
e) How can the issue of corruption be sensitized to an extent that a
majority of citizenry will avoid the same?
1.5 Justification of the study
Many persons have addressed the issue of corruption, be it within Kenya, East
Africa, Africa and other Nations. However, the same writings have not
concentrated much on the evils of corruption towards Human Life.
In the contemporary society, there are many activities that when effected through
the means of corruption, the activities lead to gross violation of human rights. As
it has been provided herein above: corruption can gravely clog the effecting and
accessing of socio-economic rights.
Therefore, this research paper will address the Kenyan and African legal academic
text and relate on how deep corruption affects our lives. In doing that, it will also
help persons understand how wide corruption is as per the various writings: thus,
8 Limburg Principles; See also, Maastricht Guidelines; See also, The Banjul Charter
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be it municipal, sub-regional, regional, international legal instruments and writings
of eminent authors. Therefore, this is paper is peculiar, because it is not in place
to mention the ‘great’ corruption cases and scandals ever known by mankind, but
it is to portray that irrespective of those ‘great’ cases and/or scandals of corruption
any element of corruption is a grave action or inaction that will violate Human
Rights.
1.6 Literature Review
Corruption is not a peculiar division neither a new division in Kenya. It is
something that has been extant since independence. Thus, if one has been keeping
close tabs, he or she will not that corruption cases in Kenya have been like an early
morning fog – that which disappears when the sun shimmers, and everyone
surprisingly forgets about the same just like nothing had happened.
There are various writings that have depicted corruption in Kenya; for instance,
Michael Wrong9 depicts the change of politics in 2002 when KANU10 was
appreciating its political sunset as NARC11 was enjoying the political sunrise. The
corruption in this case was that based on tribalism.
John Githongo – he is a man regarded as among the few who were ready to fight
corruption but his ‘naïveness’ almost made him dive in a pool full of ‘machete’ and
‘Somali swords’. As he had to run for his dear life.12
John Mutonyi: addresses the question of whether Kenya is on the right track as it
tries to fight corruption.13 Therefore, it is clear that most authors have proffered
books that have rich knowledge regards to fighting corruption but not the deep
root ramifications of the same.
9 Michela W It's Our Turn to Eat: The Story of a Kenyan Whistle-Blower () 10 Kenya African National Union 11 National Alliance of Rainbow Coalition 12 The Economist <http://www.economist.com/node/13176864> (Accessed on the 10th Day of February 2015) 13 “Fighting Corruption: Is Kenya on the Right Track” (2002)
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The Political Economy of Corruption in Kenya14 – This book addresses the in-
depth of corruption in Kenya. It can be attributed to some sort of religion that
persons seem to respect and adore with all their heart and soul. However, Prof.
Anyang’ Nyong’o did address the issue of MDGs15, which are quite close to what
this paper will discuss.16
Peter Annasi tackles the division of corruption with a peculiar view. In the sense
that, he recommends that corruption should be part of the syllabus; thus, from
primary level to secondary.17 This shows how many persons hope Kenya will curb
the issue of corruption so as to make the life of many citizens more better.
It is noteworthy that most persons are concerned about corruption and its
ramification and how it is derailing developments in Kenya and Africa as a whole.
However, the discussion herein under is majored on showing readers that
corruption gravely violates human rights.
1.7 Limitation to the study
The limitation of the study is that the matter is of grave nature, and when
personally I could find it much more prudent to execute personal interviews with
persons of interest, the same is hard because of the following reasons: the persons
are hardly available and they still value their ‘reputation’ within the eyes of various
persons in the society.
1.8 Research methodology
I will appreciate both doctrinal and non-doctrinal methodologies of research.
Owing to the serious nature of the division, more reliance will be made towards
the reports that are made by the Government, Private individuals or Corporations,
and other persons out of the Kenyan Jurisdiction.
14 Hon. Prof. Peter Anyang' Nyong'o 15 Millennium Development Goals 16 As it is known, MDGs touch on divisions such as Mortality Rate; Education et al., if one visits Article 43 of the Constitution of Kenya, he or she will note that MDGs and the Article 43 do relate. 17 Annasi P. Corruption in Africa: The Kenyan Experience (Trafford Publishing 2005)
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2.0 CHAPTER 2
2.1 Introduction
By keeping close tabs with the previous Chapter of this research paper, it should
be borne in within one’s mind that the grave matter of concern is how corruption
does affect Social Economic Rights. Herein, the paper will expound on what
corruption is, in terms of history, the major scandals, why most Kenyans (if not
all) are somewhat appreciating corruption religiously. Thereafter, the definition of
social economic rights will be given so as to give the reader an opportunity to
understand what social economic rights are and what is the nexus between social
economic rights and corruption.
Irrespective of the aforementioned, it should be noted that Kenya is one State that
is challenged by curbing tribalism and/or nepotism and not precluding cronyism
too. These elements among many others are also religiously protected by the
Kenyan citizenry;18 some persons who happen to hold contrary opinion to that,
are ‘swallowed’ by the system: as per the words of Roscoe Pound this is when law
in action defeats the law in form.
Precisely, as the paper advances, it will be noted that if Kenyans as whole; thus,
the bourgeoisie, proletariat, the elite and those who have not attained the substantive
amount of education and those who have attained the same education but have
wrapped their ill activities to the ideology of Africanism or being an African
18 Corruption on The Agenda <http://www.cisu.dk/Default.aspx?ID=23469>
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Conservative could have suffered if the law on corruption was or is to be applied on
their various action and inaction.
2.2 The History of Corruption in Kenya Definition of Corruption
Prior to appreciating the rich history of this beautiful country called Kenya vis-à-vis
corruption and how it has tainted its image, it will be prudent to have a simple and
general definition of what corruption is or rather entail. For purposes of this
Chapter, a legal oriented definition of corruption will not be adopted as the same
is set to be discussed in Chapter Three (3) of this research paper.
Corruption Watch:
Corruption is the abuse of public resources to enrich or give unfair
advantage to individuals, their family or their friends (own bold).19
Corruptie:
Corruption is the misuse of public power (by elected politician or appointed
civil servant) for private gain.20
Corruption on The Agenda:
19 Corruption Watch <http://www.corruptionwatch.org.za/content/what-corruption> (Accessed on the 22nd Day of February, 2015) 20 Corruptie “What Is Corruption?” <http://www.corruptie.org/en/corruption/what-is-corruption/> ; See also, < http://www1.worldbank.org/publicsector/anticorrupt/corruptn/cor02.htm> (Accessed on the 22nd Day of February, 2015)
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[It] is a broad term covering a wide range of misuse of entrusted funds
and power for private gain: Theft, fraud, nepotism, abuse of power etc. A
corrupt act is often – but not necessarily – illegal. In handling
corruption, you will often face a gray zones and dilemmas (own
bold).21
Swedish International Development Cooperation Agency:
[This is] when institutions, organisations, companies or individuals profit
inappropriately from their position in the operations and thereby cause
damage or loss. This includes giving and receiving bribes, extortion,
favouritism and nepotism, embezzlement, fraud, conflict of interest, and
illegal monetary contributions to political parties.22
There are tens of definition that try to exhaustively and/or precisely define what
corruption is, however, the aforementioned definitions seem to incorporate at least
a peculiar element or show consistency; hence, portraying the image of them being
relevant to this matter.
At least in the three out of the four definitions afforded, there is mention or terms
relating to mean “Public Office, Officer(s), or power…” to be utilized for private
gains.
21 Corruption on The Agenda <http://www.cisu.dk/Default.aspx?ID=23469> (Accessed on the 22nd Day of February 2015) 22 Corruption on The Agenda <http://www.cisu.dk/Default.aspx?ID=23469> (Accessed on the 22nd Day of February 2015)
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As provided by the definition number three, one will note a peculiar term –
corruption is the misuse of entrusted power for private gain. Well, the term private gain is
elusive herein or rather it a wide term that incorporates more than what an ordinary
person will imagine or think about: For instance, in the event Members of the
National Assembly and/or Senate come with laws that are contrary to the hopes
and wishes of the Constitution of Kenya, thereon, the President of Kenya and/or
any person acting in the Presidents capacity assents to that given Bill then they are
deemed to be corrupt. This is as per the definition afforded by Corruption of The
Agenda.
In general and the most simplistic terms, corruption is an action or inaction by a
person acting as a public offer23 that defeats the principles and values24 of the
Constitution of Kenya. It is noted that through the definition penned, it
incorporates the term “Public” unlike the one utilized by Swedish International
Development Cooperation Agency that lacks a term that directs that corruption is only
committed by Public Persons, this is because, in this matter, the corruption
committed by the Government or through its various official irrespective of their
rank in the society is the one being delved into.
History of Corruption in Kenya
It is clear that corruption is not something of the twenty first (21st) Century; rather,
corruption has been exhibited in Kenya even before the attaining of
23 “Interpretation” Art 260 of The CoK 2010 24 “National Value and Principles of Governance” Art 10 of the CoK 2010
12
independence.25 This means that the system of corruption is healthy within the
fabrics of the Kenyan society. Corruption is more sufferable than anything else is,
moreso when it relates to matters of attaining service from the Government.
Six years after half a century of the twentieth (20th) century, there was the
introduction of the first Kenyan lex specialis that addressed matters of Corruption.
The statutory provision did not establish a complex organisations or institutions that
dealt with corruption; surprisingly, it was left under the hands of the police officers
to enforce the same.26
The Government of Kenya quashed the Anti-Corruption Squad of 1993 that
executed the Prevention of Corruption Act (Cap. 65) in the year 1995. The same
Squad had not established a case or executed one major case by the time it was
disbanded.27
“The first Kenya Anti-Corruption Authority (KACA) was set up in 1997”28 this
was an effort to establish substantive structures that could deal with corruption.
25 U4 Expert Answer (Transparency International; The Global Coalition Against Corruption) <www.u4.com> (Accessed on the 22nd Day of February 2015): After independence, founding President Jomo Kenyatta (1963/1978) and his successor Daniel Arap Moi (1978/2002) established and sustained an increasingly corrupt one-party authoritarian rule under the Kenya African National Union (KANU). 26 Ethics and Anti-Corruption Commission: Tukomeshe Ufisadi, Tujenge Kenya <http://www.eacc.go.ke/default.asp?pageid=2> (Accessed on the 22nd Day of February 2015) 27 Ethics and Anti-Corruption Commission: Tukomeshe Ufisadi, Tujenge Kenya (Supra) 28 War on Corruption <http://republicofkenya.org/reform/war-on-corruption/> (Accessed on the 22nd Day of February 2015)
13
However, the same did not last, due to the conflicting of duties as the then
Attorney General and the Commissioner of police asserted.29
U4:
A report by international risk consultants Kroll commissioned by the
government to investigate claims of corruption carried out by Mr. Moi’s
regime and delivered in April 2004 alleges that more than £1 billion of
government money was stolen (own bold) during his 24-year rule and
details assets still allegedly owned by the Moi family in 28 countries (The
Independent, 2007).30
May be for lack of a suitable term is why the term stolen was utilized instead of lost
monies through corrupt means. As it is well known that with such a regime
domesticating one tribe in the throne, it meant that most favours were or
‘blessings’ were showered towards that given ethnicity.31 Under this context, it is
Former President of Kenya: Mr. Moi’s lineage in terms of: cronies, relatives
(nepotism) et al.
The corruption in Kenya is essentially inspired, nourished through the highly
fertilized land known as tribalism. Unfortunately, irrespective of the ramifications
of corruption, the leaders are impetus towards their descendants.
29 War on Corruption (Supra) 30 U4 <http://www.u4.no/publications/kenya-overview-of-corruption-and-anti-corruption/downloadasset/3114> 31 The Economist (Supra)
14
In the year 2002 when the former President of Kenya Mr. Daniel Arap Moi was
passing tools of power to the former President Mwai Kibaki, it was stated by
various leaders from Mr. Mwai Kibaki’s wing that “It is our time to eat.”32 This is how
deep corruption is in Kenya, it is like a cloth that one has to put on – It is the best
outfit embraced by most leaders.
Corruption might be based on the it is our time concept but some zones are denied
the opportunity to enjoy it is our time or when it is our time, other regions of the State
will remain looking at the government like malnourished children and adults living
in the streets hoping for a penny so as to place some meal on the ‘table’. However,
due to the fact that the Kenyans are entertaining this matter, can it be regarded as
a misplaced concept of Social Justice.33
Social Justice is:
[P]romoting a just society by challenging injustice and valuing diversity. It
exists when all people share a common humanity and therefore have a right
to equitable treatment, support for their human rights, and a fair allocation
of community resources. In conditions of social justice, people are not
discriminated against, nor their welfare and well-being constrained or
prejudiced on the basis of gender, sexuality, religion, political affiliations,
age, race, belief, disability, location, social class, socioeconomic
32 Wrong, Michela. It's Our Turn to Eat. London: Fourth Estate, 2010. 33 The Preamble of The Kenyan Constitution, provides that “RECOGNISING the aspirations of all Kenyans for a [G]overnment based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:”
15
circumstances, or other characteristic of background or group
membership.34
The leaders in Kenya and their cronies happen to bury their heads to what Social
Justice ought to be. Rather they consider their ‘own people’.
2.3 Cases and Scandals of Corruption in Kenya
There are numerous cases of corruption in Kenya; thus, be it minor or major. The
paper is not in place to scrutinize the truth and lack of evidence to approve the
allegations, however, the paper is to raise the eyebrow of the reader so as to
understand the amount of monies being lost by the Government of Kenya.
Corruption cases ever heard, raised and/or discussed in Kenya are as follows:35
a. Turkwell Hydroelectric Power Station36 - The contract signed was
for $250 million (£157 million), some $102 million (£64 million)
more than an original estimate, and $60 million (£37 million) more
than was judged economically feasible by the French consulting
firm, Sogreah;37
b. Goldenberg Scandal - According to the Goldenberg Report
conclusion, the “minimum of what the country lost through the
34 What Is Social Justice? <http://gjs.appstate.edu/social-justice-and-human-rights/what-social-justice> (Accessed on the 28th Day of February, 2015) 35 This paper does not intend to implicate any person whatsoever of the heinous acts or omissions yet to be mention. Rather, the information is elicited from other secondary sources. 36 <http://www.thecornerhouse.org.uk/pdf/document/correcgd.pdf> (Accessed on the 28th Day of February 2015) 37 Ibid n19
16
Goldenberg Scam” totaled KES. 37,463,616,294 which, at the time
of the report (Oct 2005), exchanged at (0.0135226504 to USD)
making the conservative total estimate $506,607,386;38
c. Kshs. 360 Million Helicopter Service Contract offered to South
Africa;39
d. The Nexus – Secret Military Communication Centre;40
e. The transfer of GBP 1 Billion;41
f. The Grand Regency42 - The government sold the Grand Regency
Hotel, a five-star property in downtown Nairobi, to a group of
Libyan investors for US$45 million (Dh165m), according to Amos
Kimunya, the finance minister;43
g. Imported Maize44 et al.
The aforementioned cases are among the many that have taken place in Kenya
since independence to date.
38 <http://star.worldbank.org/corruption-cases/node/18610> (Accessed on the 28th Day of February 2015) 39 <http://kenyastockholm.com/2007/03/21/purchase-of-jordanian-fighter-jets-stinks-of-high-corruption/> (Accessed on the 28th Day of February 2015) 40 <http://allafrica.com/stories/200602090740.html> (Accessed on the 28th Day of February 2015) 41 <https://wikileaks.org/wiki/The_looting_of_Kenya_under_President_Moi> (Accessed on the 28th Day of February 2015) 42 <http://www.thenational.ae/news/world/africa/hotel-scandal-shakes-kenyan-politics> (Accessed on the 28th Day of February 2015) 43 Ibid n25 44 <http://www.africog.org/reports/Maize%20Report.pdf> (Accessed on the 28th Day of February 2015)
17
Without delving into how much was lost, it is clear that if the monies that have
been wasted for purposes of private gains and/or an entity favour were injected in
the right project(s) and/or activities, it could make Kenya be at a different
standing.
2.4 Definition of Social Economic Rights
It should be noted that social economic or economic and social and/or socio-
economic rights are terms that are used interchangeably while addressing the same
matter Nationally and Internationally. The Kenyan Constitution does have a
provision of the same nature,45 it is also vivid that Kenya has domesticated various
Regional and International legal instruments that address on matters of socio-
economic rights.46
Socio-economic rights are better explained than defined, thus, for Art. 43 of the
CoK, 2010 provides that:
Under the umbrella of Economic and Social Rights the people shall have the
right –
a. To the highest attainable standards of health, which includes the
right to health care services, including reproductive health care;
b. To accessible and adequate housing, and to reasonable standards
of sanitation;
45 Art 43 of the Constitution of Kenya, 2010 46 This is by the dictations of Art 2 (5) & (6) of The CoK, 2010
18
c. To be free from hunger, and have adequate food of acceptable
quality;
d. To clean and safe water in adequate quantities;
e. To social security; and
f. To education.
2. A person shall not be denied emergency medical treatment.
3. The State shall provide appropriate social security to persons who are
unable to support themselves and their dependants.47
These rights are absolute but are not immediate. Thus, they cannot be attained in
totality in one day or even in fortnight; therefore, the CoK provides that, the
fundamental human rights under Art. 43 will be realized in a progressive manner.48
These terms are also reflected directly and/or indirectly in various Regional and
International legal instruments such as: The Universal Declaration of Human Rights
(herein after it is referred as UDHR),49 these rights are regarded as Second Generation
of Rights. The same rights were expounded on under The International Covenant
on Economic and Social Cultural Rights (herein after the ICESCR),50 The Banjul
Charter51 does afford the same diction.
47 Ibid n28 48 Art 21 (2) of the CoK 49 Art 22, 25 & 26 50 Art 10, 11, 12, 13 & 14 51 African Charter on Human and Peoples Rights’
19
The striking element is that the socio-economic rights or the Second Generation of rights
are to be attained depending with resources of a State. However, this derogation
in innuendo is not in totality; thus, the Limburg and Maastricht Principles provides
that irrespective of the circumstances in which a State is in, the issue of Social
Economic rights should be realized no matter how the resources of the State is
low or scarce.52
As it has been noted that Socio-Economic Rights can be limited, the same has to meet
the five-pact test provided for under various Regional and International
documents and other writings of eminent persons. The five-pact test is also traced
into the Kenyan Constitution, 2010.53
The aforementioned test should meet the National Values and Principles of
Governance.54 As it can be noted, Corruption is not one of the National values and
Principles of Governance. Thus, the Governments that condones corruption, is
limiting the attainment of socio-economic rights by illegal means. This sentiment
will instill the actual meaning if one reflects the phraseology provided for under
Chapter 2 part 2.3. The cases or scandals provided therein are not the only matters
relating to corruption that have taken place, but there are more than ample of
which lead to loss of huge amount of wonga that could be utilized for attaining
socio-economic rights, but due to the greed of the public officers and their cronies,
52 Mathew Okwanda v Minister of Health and Medical Services & 3 others [2012] HC Nrb eKLR 53 Art 24 (1) (a) – (e) 54 Art 10 of the CoK, 2010
20
Kenya is slagging behind unlike other States that started ‘living’ and/or ‘crawling’
with it.55
55 Singapore
21
3.0 CHAPTER 3
3.1 Introduction
In a society, there exists a social disorder. The social disorders are dealt with in
different ways for purposes of deterrence by weighing of the severity. For instance,
there are countries that prefer hanging56 while other opt for life imprisonment.
Thus, each State differs from how matters of law are dealt with.
Kenya having suffered from activities of corruption, the people of Kenya through
their representatives have managed to establish various laws and institutions to
deal with the issue of corruption. For instance, there is the Constitution of Kenya;
The Anti-Corruption and Economic Crimes Act; Leadership and Integrity Act;
Ethics and Anti-Corruption Act; The Proceeds Of Crime And Anti-Money
Laundering Act; and the Evidence Act. However, herein the Evidence Act will not
be discussed as it will divert the topic of discussion as provided herein above in
this document. It should be noted that not all the legal instruments mentioned
herein will be delved into as the division of Social Economic and Cultural Rights is
quite specific on what law if flaunted there will be violation of the aforementioned
Human Rights.
This paper does not delve into the surcharge or punishments a persons who
violates the law through corrupt means, rather, it focuses on how corruption
violates the Second Generation of Human Rights.
56 <http://www.bbc.com/news/world-asia-pacific-14197485> (Accessed on the 21st Day of May 2015)
22
It is also clear that irrespective of the numerous legal instruments addressing issues
relating to corruption, Kenya still suffers from corruption.57
3.2 Constitution of Kenya
Generally, the Constitution of Kenya has provided a wide segment that addresses
issues relating to corruption or what can be termed as corrupt means of gaining
property or exercising duties.58 Herein under, the paper will discuss specific areas
of Chapter Six of The Constitution of Kenya. The Articles that will be mentioned
herein after are regarded as the most reasonable provisions that relate to the topic
of discussion herein.
Prior appreciating the legal text in Chapter Six, the Constitution also reminds its
citizenry and the leaders that at any point when one is executing his or her
mandate, he or she should observe The National values and Principles of
Governance.59
The National Values and Principles of Governance are as follows:
(1) The national values and principles of governance in this Article bind
all State organs, State officers, public officers (own emphasis) and all
persons whenever any of them (own emphasis) –
57 Transparency International Kenya <http://www.tikenya.org/index.php/press-releases/225-kenya-s-anti-corruption-laws-need-to-be-amended-to-strengthen-the-fight-against-corruption> (Accessed on 26th Day of May 2015) 58 Chapter Six of The Constitution 59 Chapter Two of The Constitution
23
(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions.
(2) The national values and principles of governance include –
(a) patriotism, national unity, sharing and devolution of power, the rule of
law, democracy and participation of the people;
(b) human dignity, equity, social justice, inclusiveness, equality, human
rights, non-discrimination and protection of the marginalised;
(c) good governance, integrity60 (own emphasis), transparency and
accountability; and (d) sustainable development.61
Therefore, it is clear that when the drafting of the Constitution of Kenya were
drafting this legal document, now considered as the Supreme Law of The Land or
Grundnorm of Kenya. The peculiar matter is that the constitution does not
necessarily point it ‘finger’ towards public officials alone but also the general public
and foreigners. In appreciating the term utilized under Art. 10 (1) it is clear that
the term “…all persons whenever any of them…” is not limited to any class of persons
60 The writing of Art. 10 of The CoK is expounded under Chapter Six of The CoK. 61 Art. 10 of The CoK
24
unless it is a child of twelve (12) years and below62 whom they are exempted from
criminal liability as per the Penal Code of Kenya.63
For purposes of clarity, a person who is a State Officer and Public Officer is
defined in the Constitution under Article 260. However, it will be unnecessary to
touch on the definitions proffered by the Constitution concerning the terms
provided herein above because the Constitution stipulates that it will apply to
everyone vis-à-vis The National values and Principles of Governance.
Chapter Six of The CoK entails provisions about Leadership and Integrity. As
aforementioned herein above, this Chapter of the Constitution does reflect the
wording of Article 10 (2) (c) of The Constitution where-by it discusses about
Integrity.
Under Chapter Six, the areas of concern are as follows:
Article 73 (2)
Article 75 (1)
Article 7964
Article 73 (2) of The Constitution of Kenya
(2) The guiding principles of leadership and integrity include –
62 Immature Age: Below 8 years cannot be criminally liable; between 9 and 12 years are not criminally liable but it is rebuttable. 63 Section 14 of The Penal Code. 64 Constitution of Kenya
25
(a) Selection on the basis of personal integrity, competence and suitability,
or election in free and fair elections;
Integrity is defined as the quality of being honest and having strong moral principles.65
Definitely, with such values one is expected to meet the provisions of Article 10.66
Theoretically, it is clear that the State Officers in Kenya meet the aforementioned
standard. However, going by the reports being produced in Kenya then the
writings of the Law are being ridiculed day in day out.67
(b) Objectivity and impartiality in decision-making, and in ensuring that
decisions are not influenced by nepotism, favouritism, other improper
motives or corrupt practices;
(c) Selfless service based solely on the public interest, demonstrated by –
(i) Honesty in the execution of public duties; and
(ii) The declaration of any personal interest that may conflict with public
duties;
(d) Accountability to the public for decisions and actions; and
(e) Discipline and commitment in service to the people.
In Kenya, the following subjects are elusive as much as they are vividly provided
for in the Grundnorm of Kenya. The terms are:
65 Oxford Advanced Learners Dictionary 8th Edition 66 Constitution of Kenya 67 Transparency International Kenya
26
Objectivity and impartiality in decision making
Selfless service based solely on the public interest (own emphasis)
Accountability
Discipline and commitment in service to the people
The term Objectivity and Impartiality in decision-making is quite elusive in
nature once the term Public Interest is invited into the topic. This is because the
term Public Interest does not necessarily refer to the whole population of a State
based on the Principles under the Montevideo Declaration68. However, the term public
interest can be defined in different ways, as it will be noted when cases of Public
Interest are taken to Court.
Public Interest can be in relation to various classes of people.69 This means that
they can be businesspersons; a minority community; the Gender Rule Principle;
teachers at a certain level et al. hence, the duties might sound imprudent but might
have a sense of legal touch in it. However, this is not the case in Kenya as at no
point has this term public interest been invoked by advocates of the persons
accused of committing economic crimes or indulged into Corruption.
Justification of Public Interest as provided herein above calls for the help of the
court in some cases. As it can be noted in The Hermanus Philipus Steyn Case the
defining the term Public Interest is quite easy; however, when appreciating some
68 Art. 1 69 Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone [2012] Supreme Court of Kenya App. No. 4
27
type of facts when defining the term makes it hard for one to come up with a
persuasive definition of how the law and the facts intertwine.70 Therefore, it is
more prudent to let the court or a cohort of reasonable advocates to deliberate on
the same matter as compared to an individual who lacks that knowledge of the
law.
In doing so, one will be appreciating the National Values and Principles of
Governance of Kenya.71 That will also be in line with what can be termed as
Accountability72.
Accountability is when one is capable to being responsible for [his or her] decision or
actions and expected to explain when asked.73 Accountable is responsible; answerable.74
This connotes that Accountability will be the first stage of one trying to exonerate
him or herself from liability. However, not all forms of accountability will suffice as
the matter is to be deliberated upon by the Judicial Organisations or Anti-
Corruption Commission of Kenya.
Article 75 (1) of The Constitution of Kenya
(1) A State officer shall behave, whether in public and official life, in
private life, or in association with other persons, in a manner that
avoids (own emphasis) –
70 This appreciates the Maxim of Equity: the law comes from the facts. 71 Art. 10 of The CoK 72 Art. 73 (2) (d) of The CoK 73 Oxford Advanced Learner’s Dictionary 8th Ed 74 Black’s Law Dictionary 8th Ed
28
(a) Any conflict between personal interests and public or official
duties;
(b) Compromising any public or official interest in favour of a personal
interest; or
(c) Demeaning the office the officer holds.
Under this Article of The Constitution of Kenya provides, it is more specific that
the actions and/or inactions of a State Officer should reflect the National Values
and Principles of Governance75 by avoiding to create whatsoever conflict between personal
interest interests and public or official duties.76 Unlike Article 10 of The CoK that seems
to apply its arm across the whole population in Kenya, Article 75 (1) is more
inclined towards the State Officers.
Owing to the diction utilized in this contest, it is clear that if a State Officer does
take part in any activity that is off tangent with the provision of the Grundnorm and
other Lex Specialis he or she is likely to suffer the ramifications of his or her actions.
Under Chapter One and Two of this discussion paper, one will notice the actions
that if are taken by the State Officers and are contrary to the law will lead to
dangerous ramifications that can lead to violation of Social Economic and Cultural
Rights of the public.
United Nation Development Programme:
75 Art. 10 of The CoK 76 Art. 75 (1) (a) of The CoK
29
The negative impact of corruption on development is no longer
questioned. Evidence from across the globe confirms that corruption
impacts the poor disproportionately. Corruption hinders economic
development, reduces social services, and diverts investments in
infrastructure, institutions and social services (own emphasis).
Moreover, it fosters an anti-democratic environment characterized by
uncertainty, unpredictability and declining moral values and disrespect for
constitutional institutions and authority. It also undermines efforts to
achieve the MDGs (own emphasis). Corruption therefore reflects a
democracy, human rights and governance deficit that negatively impacts
poverty and human security.77
UNDP being one of the reputable and persuasive authorities under the cohort of
United Nation, it is worth to appreciate its report on the issue of Corruption as it
seconds the birth of this discussion paper as it states that corruption does
undermine Social Economic and Cultural Rights of a given State; not forgetting to
mention it also delays the achievement MDGs.
Article 79 of The Constitution of Kenya
Under the Constitution of Kenya, the Parliament is given the authority to come
up with a Lex Specialis that expounds on the provisions of Chapter Six of The
77 UNDP Practice Note: Anti-Corruption (February 2003)
30
Constitution of Kenya. The Parliament of Kenya did heed to the provisions of
The CoK and came up with Leadership and Integrity Act 2012.
3.3 Leadership and Integrity Act of Kenya78
As mentioned under section 3.2 of this Chapter, it is vivid that the aforementioned
Article is a replication of Chapter Six of The CoK; however, in this case it
expounds its diction on what actually Chapter Six does and should entail
extensively.
The Statute delves into other Chapters and Articles of the CoK that should be put
into consideration when any Public Officer of the Government of Kenya should
put in mind whilst undertaking the step to execute his or her mandate irrespective
of his or her position in the Government of Kenya.
Section 379 does provide that the Guiding values, principles and requirements that the
State officers should observe are derived from the Constitution of Kenya.
The areas that are given much weight are as follows:
Article 10 The CoK
Chapter Four The CoK (own emphasis)
Article 73 of The CoK
Article 75 The CoK
Article 99(1) (b) and 193(1) (b) The CoK
78 2012 79 Leadership and Integrity Act 2012
31
In the case of County governments, the objectives of devolution
provided for under Article 174 of The CoK
In so far as is relevant, the values and principles of Public Service
as provided for under Article 232 of the Constitution.80
The Statute further provides that nothing in that is provided in the Statute should
be a channel for derogating from the provisions of the Supreme Law of The Land
of Kenya.81
Herein under it will irrelevant to repeat some of the provisions mentioned under
Section 3 of the aforementioned Statute; however, it will be prudent to give
attention to Chapter Four of The CoK. Under the Chapter 4, it is where the topic
of this discussion paper emanates from. This is the Social Economic and Cultural
Rights82 that are provided therein.
Social Economic and Cultural Rights are justiciable,83 this means that the Judiciary
of Kenya has the authority to delve into the same matter; this is because the
protection of the Constitution is on every citizen but the Judiciary is further
entrusted with the duty to protect it.84
80 Section 3 of The Leadership and Integrity Act of 2012 81 Section 3 (3) of The leadership and Integrity Act of 2012 82 Art. 43 of The CoK 83 Art. 20 (5) and Art. 21 (2) 84 Art. 159 of The CoK
32
As provided under The Leadership and Integrity Act and affirmed by UNDP that
corruption does affect Social Economic and Cultural Rights, it will be prudent to
discuss Article 4385.
Article 43 of The Constitution of Kenya
The provisions of Article 43 are also a reflection of The International Covenant
on Economic and Social Cultural Rights. The Right as it is known: Social
Economic and Cultural Rights is supposed to be realized prior the introducing it
into law. However, the laxity of the Politicians failure to acknowledge that fact,
there was need to place the same into law and make it justiciable. This is why the
Governments have tried to contest the element of Justifiability of the Social
Economic and Cultural Rights.86
(1) Every person has the right –
(a) to the highest attainable standard of health, which includes the right to
health care services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of
sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
85 The CoK 86 Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169. (CC)
33
(e) to social security; and
(f) to education.
(2) A person shall not be denied emergency medical treatment.
(3) The State shall provide appropriate social security to persons who are
unable to support themselves and their dependants.87
In any event corruption is not condoned to the latter, the ramifications of it is that
most of the Rights provided herein above as stipulated by the Constitution will
not be attained or if the same will be attained, the process will protracted.
UNDP:
Corruption is principally a governance issue – a failure of institutions
and a lack of capacity to manage society by means of a framework
of social, judicial, political and economic checks and balances (own
bold). When these formal and informal systems break down, it becomes
harder to implement and enforce laws and policies that ensure
accountability and transparency.88
Kenya is suffering from “Governance Issue” – this can be portrayed by the recent
cases of corruption sprouting within Kenya.89
87 Art. 43 of The CoK 88 UNDP Practice Note: Anti-Corruption (February 2003) 89 <http://www.ft.com/cms/s/0/bf75a7ee-c7f9-11e4-8210-00144feab7de.html#axzz3bVtNtnaX> (Accessed on The 29th day of May 2015); <http://www.reuters.com/article/2015/04/01/us-kenya-corruption-idUSKBN0MR1AI20150401> (Accessed on The 29th Day of May 2015);
34
Johannes Zutt:
Unsatisfied with qualitative data, some people have tried to obtain more
solid quantitative data. But hard data are not easy to find. Often we have
specific indicators that fraud or corruption has occurred—auditors find
companies or contracts that appear to be fictitious; whistleblowers say that
contractors are paying bribes or kickbacks; high bid prices suggest that
companies are colluding to inflate prices and share the rent gained; civil
works exhibit poor quality or lack equipment, suggesting that the
contractor has skimmed off the savings.
These facts are not in themselves proof of fraud or corruption, even if they
are often correlated with it. But even if we investigate and prove the fraud
and corruption, it is notoriously difficult to quantify its extent. If someone
pays $500,000 in bribes to get a $60,000,000 contract, and then uses
substandard concrete to execute the works, what is the total loss? Poor
concrete on a terrace may not be too serious—but in the walls and ceilings
it may impair the entire building and everything inside it. And if it is
difficult to quantify the cost of corruption in specific cases, it is so much
more difficult to quantify it across many cases across a whole economy.
Hence, meaningful cross-country comparisons are virtually impossible.90
<http://www.economist.com/news/middle-east-and-africa/21646811-after-long-era-impunity-crooked-politicians-may-now-have-watch-out> (Accessed on The 29th Day of May 2015) 90 Johannes Z. <www.blogs.worldbank.org/africacan/corruption-in-kenya> (Accessed on The 29th Day of May 2015)
35
In shifting the argument from the collection of data for purposes of substantiating
an argument for purposes of prosecution, it will be prudent to appreciate the idea
of kickbacks or bribes or ‘grease money’ – this can be noted to lead to questionable
situations in the near future. For instance, Mr. Johannes example shows how such
deals can lead to precarious revelations in the near future.
Frank Vogl:
Corruption is a political, social and economic issue of global proportions.
Today, as never before, it is a major cause of the global crises of poverty,
human rights, justice and security. It impacts us all.
All governments are vulnerable to corruption and no government can
claim that it does not harbor officials who abuse their office for their
personal gain. While it is almost certainly true that corruption in
government will never be ended, it is equally true that much can be done
to reduce its prevalence.91
As it known that, corruption affects all of us directly and/or indirectly, it should
be noted that the same cannot be stalled in totality. This is because the term
corruption is a wide term that incorporates many activities. However, reducing the
actions or inactions that lead to corruption can help improve the social economic and
91 Vogl, Frank. Waging war on corruption: Inside the movement fighting the abuse of power. Rowman & Littlefield Publishers, 2012.
36
cultural rights of a given State. Currently, The Kenyan Corruption Perception Index
stands at 145/175 as per the 2014 results.92
Frank Vogl asserts that corruption is:
Crime against humanity
An economic crime
Crime against taxpayers everywhere
Damages peace and security.93
Clinging on Frank Vogl words it is clear that Corruption affects Social Economic and
Cultural Rights negatively.
3.4 Other Statutes Anti-Corruption and Economic Crimes Act
Ethics and Anti-corruption Act
Kenya Proceeds of Crime and Anti-Money Laundering Act
The aforementioned Statutes do not necessarily approach the term Social
Economic and Cultural Rights but they are utilized to prosecute crimes that cling
to the corrupt activities that occurred and yet to occur: more of an inchoate
offense.
92 Transparency International <https://www.transparency.org/cpi2014/results> (Accessed on The 29th Day of may 2015) 93 Vogl, Frank. (Supra)
37
3.5 Case Law
In most (if not all) of the corruption cases held in Kenya happen to lose touch
with the fundamental human rights as provided in the Constitution of Kenya. This
is irrespective of the weight of the same being discussed under the Leadership and
Integrity Act. However, for purposes of time differences, the cases decided prior
August 2010, it is clear that there were different laws being applied in Kenya.
Irrespective of that, the deterrence effect by the laws in place seem to have a lower
severity impact.94 In the John Gatua Kabira case (supra) the appellant had his
surcharge reduced from Kshs. 128 000 to Kshs. 20 000. Thus, the law provided
he who was found guilty of an economic crime was to pay twice that given
amount.95
Having laws with that kind of severity, it clear that its severity is low; hence, the
element of deterrence cannot be effective. Therefore, people will continue to
condone corrupt activities within the State.
Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & Another96 it can
be noted that by then when the promulgation of current Constitution had not
taken course and therefore, the Court happened to have questionable limb of
thought. Herein under the statement is made by the Court is as follows:
Lastly, before we leave the matter, professor Muigai told us that their
strongest point on the motion before us is the public interest. We
94 John Gatua Kabira v Republic of Kenya [2006] eKLR 95 Section 48 (2) (b) of The Anti-Corruption and Economic Crimes Act 96 [2006] H.C. Misc. Civil Appl. No. 54
38
understood him saying that the Kenyan public is very impatient with the
fact that cases involving corruption or economic crimes hardly go on in
the courts because of applications like the one we are dealing with. Our
short answer to Professor Muigai is this. We are aware of the fact that the
public has a legitimate interest in seeing that crime, of whatever nature, is
detected, prosecuted and adequately punished. But in our view, the
Constitution of the republic is a reflection of the supreme public interest
and its provisions must by the courts, sometimes even to the annoyance
of the public. The only institution charged with the duty to interpret the
provisions of the Constitution and to enforce those provisions is the High
Court and where it is permissible.97
Taking a comparative lane between the repealed Constitution and the current
Constitution it is clear that the provisions of the current Constitution is more
Human Rights oriented and also in favour of the Public Good. That is an element
that the repealed Constitution seem to lack and thus why legally walking away from
a liability was more easy. More of this legal hitch was observed in Kenya Anti-
Corruption Commission v L. Z. Engineering Construction Limited & 5 Others.98
However, the main objective of introducing the case laws was not to check the
convictions but if the Courts or Legal Practitioners do have in mind the impact of
Corruption towards the Social Economic and Cultural Rights.
97 John Gatua Kabira (Supra) 98 [2004] eKLR
39
4.0 CHAPTER 4
4.1 Introduction
Corruption is the topic of the day. Currently, President Muhammadu Buhari who
is the only democratically elected leader in Nigeria99 is mentioned to have plans to
fight the rampant cases of corruption in Nigeria. Nigeria is regarded as one of the
States in Africa that seem to find corruption sufferable.100 Corruption is not only
swallowing Nations but also International Organisations; in this case Fédération
Internationale de Football Association (herein after referred as FIFA).101
It would not be advisable to affirm that those are the only case of corruption in
the world; however, during the penning of this paper these were the populous
cases regarding corruption sufficing the International sphere.
Reverting to the alleged cases of corruptions that have emanated, it might seem to
appear that it was only about the Organisations, States, Companies et al. however,
that is not the case on the ground. Thus, corruption negatively impacts various
livelihood directly and indirectly. Opportunities and lives are lost, the indirect
impact of that is having a society that is not developed or if it is ‘developing’ it is
99 <http://www.aljazeera.com/news/2015/05/nigeria-set-historic-democratic-handover-buhari-150529025601554.html> (Accessed on the 31st Day of 2015) 100 136/175 – Transparency International (Supra) 101 FIFA Scandal <http://edition.cnn.com/2015/05/27/us/fifa-corruption-investigation-why/> (Accessed on the 31st Day of 2015)
40
based on sub-standard products or infrastructure.102 With such circumstances, it is
clear the developments are not sustainable.103
Corruption can only be addressed if the private sector is involved to these
objectives of the Government(s).104 Therefore, to fight corruption one does not
need to only to delve into the Government but also other key players within the
building the society: socially, culturally and economically.
Herein under the discussion paper will give much weight on International Legal
Instruments that address topics referring to corruption. This will be
The African Union Convention on Preventing and Combating Corruption
United Nations Convention Against Corruption
The former is based on Africa as a continent and the latter is an International legal
instrument.
102 <http://www.businessdailyafrica.com/Why-substandard-buildings-will-soon-be-part-of-history/-/1248928/1860704/-/ddxi8vz/-/index.html> (Accessed on the 31st Day of 2015) 103 Anti-Corruption Ethics And Compliance Handbook For Business – OECD, UNODC and THE WORLD BANK <http://www.unodc.org/documents/corruption/Publications/2013/13-84498_Ebook.pdf.> (Accessed on the 31st Day of May 2015) 104 Anti-Corruption Ethics And Compliance Handbook For Business (Supra); See also, The African Union Convention on Preventing and Combating Corruption – Preamble & Article 11
41
4.2 The African Union Convention on Preventing and Combating
Corruption
In the 1990’s Africa undertook the initiative to fight corruption as it was growing
too fast and not to forget the ramification it left to the citizenry of the given State
that corruption was sufferable.105 It is not new that corruption has grave impact
on Human Rights and The African union Convention on preventing and
Combating Corruption (herein after referred as AUCPCC) is very clear on the
same division.
The AUCPCC provides that:
Cognizant of the fact that the Constitutive Act of the African Union, inter
alia, calls for the need to promote and protect human and peoples’ rights,
consolidate democratic institutions and foster a culture of democracy and
ensure good governance and the rule of law;
Aware of the need to respect human dignity and to foster the promotion
of economic, social, and political rights in conformity with the provisions
of the African Charter on Human and People’s Rights and other relevant
human rights instruments;
Concerned about the negative effects of corruption and impunity on the
political, economic, social and cultural stability of African States and its
devastating effects on the economic and social development of the African
peoples;
105 The 1994 Cairo Agenda for Action Relaunching Africa’s Socio-economic Transformation
42
Acknowledging that corruption undermines accountability and
transparency in the management of public affairs as well as socio-
economic development on the continent;106
Under The Preamble,107 it is clear that socio-economic or social economic and cultural
rights have been given much more weight. Hence, herein under this paper will
appreciate the content of the Statute. As it known, the Statute is in place to
expound on the respect that ought to be proffered towards the Human Rights
provided in the Banjul Charter.
AUCPCC defines corruption as the acts and practices including related offences prescribed
in this Convention.108 The offences are provided under Article 4; 5; 6; 8; 10.109
Well, it will be prudent to restate and affirm that the discussion in this paper is not
about the punishment being in place for persons who intend or take part in corrupt
activities, but to raise the eyebrows of all the persons who seem not to understand
the ramification of corruption. This is because it is not only about loss of monies
but can lead to violating other Human Rights as provided in the various legal
instruments depending on what different States and Regions have incorporated as
their guiding terms.
106 The Preamble of AUCPCC 107 AUCPCC 108 Art. 1 of The AUCPCC 109 The AUCPCC
43
For that reason, the paper is majorly appreciating the text that related to directly
or indirectly towards the terms: socio-economic or social economic and cultural rights.
Principles of AUCPCC
The legal instrument is guided by its own five (5) principles. However, the ones
that are wide ample vis-à-vis the topic of discussion are three (3):
Respect for democratic principles and institutions, popular participation,
the rule of law and good governance.
Respect for human and peoples’ rights in accordance with the African
Charter on Human and Peoples Rights and other relevant human rights
instruments.
… …
Promotion of social justice to ensure balanced socio-economic
development.
… …110
The aforementioned provisions are in line with the Objective of AUCPCC111 that
provides as follows:
110 Art. 3 (1) (2) & (4) of The AUCPCC 111 Art. 2 (4) of The AUCPCC
44
Promote socio-economic development by removing obstacles to the
enjoyment of economic, social and cultural rights as well as civil and
political rights.112
Socio-economic rights are rights that refer to access to better housing, health care,
education et al. as it was mentioned earlier on, these rights are more of meeting
the millennium Development Goals. The MDGs were to be achieved by all States
across the globe by the year 2015.113 However, the developing Nations requested
for more time as they claimed they had no ample resources to meet this goals as
required. Hence, one can note that a State like Kenya came up with Vision 2030.114
South Africa is one of the States in Africa that has taken the initiative to provide
better living standards of its citizenry by proffering reasonable housing.115 The
Grootboom Case116 is one of the South African cases that raised various principles of
establishing socio-economic rights as being justiciable. Well, the case did not come as a
way of economic crimes but a demand of an existing Constitutional Right.
4.3 United Nations Convention Against Corruption
Corruption is an insidious plague that has a wide range of corrosive effects
on societies. It undermines democracy and the rule of law, leads to
violations of human rights, distorts markets, erodes the quality of life and
112 The AUCPCC 113 <http://www.un.org/en/ecosoc/about/mdg.shtml> (Accessed on the 31st day of May 2015) 114 <http://www.un.org/en/ecosoc/about/mdg.shtml> (Supra) 115 Cities Alliance <http://www.citiesalliance.org/node/2964> (Accessed on the 31st day of May 2015) 116 [2000] (11) BCLR 1169 (CC)
45
allows organized crime, terrorism and other threats to human security to
flourish.
Corruption hurts the poor disproportionately by diverting funds intended
for development, undermining a Government’s ability to provide basic
services, feeding inequality and injustice and discouraging foreign aid and
investment.117
The aforementioned excerpt is emphasized as it vividly describes the thoughts of
the author in this discussion paper. The harm of corruption not a myth anymore
as statistics prove that the ramifications of corruption is equal to shooting
someone on his limbs or torturing a human being and leaving him or her for death.
The United nation Convention Against Corruption is legal document that was
brought into place in the year 2004. It is clear that this legal text seeks inspiration
from various International Legal instruments like The United Nations Charter;
The Universal Declaration on Human Rights; The Two (2) Generations of Human
Rights one based on the Capitalist States Ideologies118 and The other Communist States
Ideologies.119
Irrespective of the Legal Instruments echoing other legal instruments that are
already in place, it introduces new factors such as Multidisciplinary Measures120 should
117 The Foreword of The United Nation Convention Against Corruption (herein after referred as UNCAC) 118 The International Covenant on Civil and Political Rights (herein after referred as ICCPR). 119 The International Covenant on Economic Social Cultural Rights (herein after referred as ICESCR). 120 Preamble of UNCAC
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be utilized to address the issue of corruption and it further address on how States
can help each other to fight corruption. This is like the issues of extradition. The
idea of extradition is also echoed by the AUCPCC.121 This is evident in the 2015
FIFA Scandal. Well, as it might seem to implicate the topnotch officials at FIFA
and other Companies, the realities are that from the same actions and/or inactions
most people at the bottom of the triangle suffered due to the corrupt activities of
the entrusted leaders.
121 Art. 15
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5.0 CHAPTER 5
5.1 Conclusion
Whilst coming up with the topic of addressing in this discussion paper, there were
a lot of ideas propelling with regards to corruption. Some had been addressed and
some have not been addressed or if addressed, the same was not given the needed
attention.
For instance, the issue of socio-economic rights is only addressed via reports made by
National and International Institutions. There are also legal documents that have
mentioned how corruption is one of the many factors making states unable to attain
their MDGs and other reasonable forms of developments.
The fact that some legal instruments have acknowledged the fact that corruption
affects Human Rights and mostly socio-economic rights, the ability to bring this
argument in courts seem to be low or even none.
The courts need to take into cognizant that such cases are wide; hence, a wider
definition should be afforded.
Irrespective of having the Anti-Corruption Commission in Kenya, it does not
mean that all the necessary legal aspects are addressed by the Institution. This is
because, the ears and minds of those taking part in the proceedings are less
concerned of the direct and indirect ramifications of Corruption to a State and its
citizenry rather the only matter on the table is guilty or not-guilty concept.
5.2 Recommendations
After a deep research and eliciting of ample information from various sources, it
is noteworthy to state the following:
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The Government of Kenya through its rightful operative should change the
manner in which it addresses the issue of corruption. Thus, the idea of viewing
corruption as an economic crime, it blinds the Justice needed by the citizenry who
entrust the Government through the three limbs of Government it will protect
their interest.
The Judiciary should enlighten the Magistrates and Judges about the impact of
corruption and human rights: socio-economic rights. This will help the Judiciary
analyze a case extensively. Thus, as much as Kenya is not have a Civil Legal System,
the operatives of the Judiciary are supposed to inquire on where they need clarity
or when the law is being misstated.
All the economic crimes should be addressed as Petitions and not criminal matters
as they seem to be addressed. This should be the case because it will help avoid
circumstances where a court or tribunal and/or Commission assert that it does not
have the jurisdiction to address a certain matter. As it is known in Kenya under
the various Courts found under the High Court, it is the only institution that can
address matters of Human Rights and there are channels of appeal the can even
reach the Supreme Court of Kenya.
Making provisions such as that the amount one can be surcharged when found
guilty in a criminal case cannot go beyond one million Kenyan shillings or if below
one will be charged asked to pay twice the amount utilized to effect corrupt deeds
is quite appalling. It encourages corruption, as one will have to take part in
corruption knowing the ramification is not that sever at al. hence, new policies
should be invited and effect to the latter.
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