KENYA ANTI-CORRUPTION COMMISSION by accinent

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									             KENYA ANTI-CORRUPTION COMMISSION




   SPEAKING NOTES OF THE DIRECTOR/CHIEF EXECUTIVE OF THE

  KENYA ANTI-CORRUPTION COMMISSION AT ST. ANDREWS CHURCH

 NAIROBI ON THE MANDATE, SCOPE AND CHALLENGES OF THE KACC

            UNDER THE THEME “GOD HATES CORRUPTION”



    THURSDAY, 15TH MARCH 2007, ST. ANDREWS CHURCH, NAIROBI.

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The Parish Moderator, Rev. Dr. Patrick Mungiriria, the Session Clerk, Elder

Chris Karingithi, the Chair of the Justice, Peace and Reconciliation Committee,

Ms Njeri Kang’ethe, Deacons present, including the Chairman of the Kenya

Anti-Corruption Commission Advisory Board, Mr Allan Ngugi, Ladies and

Gentlemen: All Protocols Observed:



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1.   Introduction


     1.1 I will begin by thanking you all for the invitation to come and
         fellowship with you this evening. The Director of the KACC is often
         invited to appear and speak at forums where the audience is usually
         hostile and critical. It is a refreshing change to be with you this
         evening and for the opportunity to fellowship with a friendly
         audience.


Ladies and Gentlemen:


     1.2 On an evening like this one, I would like nothing better than to give
         you a long and detailed lecture on the scope, mandate and challenges
         faced by the Kenya Anti-Corruption Commission. I would take you
         through the legislative history leading up to enactment of The Anti-
         Corruption and Economic Crimes Act 2003. I would relish the chance to
         describe to you how corruption has changed over time from the
         passage of banknotes in brown envelopes under the table, to today’s
         world where bribes are given in the form of virtual money, services
         and benefits, usually across borders and continents, and often
         electronically, at the touch of a button or the click of a computer
         mouse. I would enjoy telling you about the various efforts that
         Kenya’s governments have made to fight corruption through the
         establishment of anti-corruption squads, anti-corruption units, the
         Kenya Anti-Corruption Authority, of which I served as Director until
         it was shut down, leading to today’s Kenya Anti-Corruption
         Commission.


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     1.3 I would tell you that despite what you may hear in the press, and in
          spite of popular opinion, the Commission has only been in actual
          existence since 10th September 2004 when I and my Assistant
          Directors took office.


     1.4 However, I will not tell you all those things this evening. Instead, and
          in the interests of time, I will focus on the scope, mandate and
          challenges faced by the Commission.


2.   Scope and Mandate of the Kenya Anti-Corruption Commission


     2.1 You will notice, of course, that I have merged ‘scope’ and ‘mandate’,
          principally because there is no significant difference between the two
          words meriting separate attention.


     2.2 The Kenya Anti-Corruption Commission is a creature of statute,
          established by The Anti-Corruption and Economic Crimes Act 2003. The
          structure of the Commission is composite. First is the Advisory
          Board consisting of members appointed by various nominating
          bodies. There then follows the Commission proper, consisting of the
          Director, who is also the Chief Executive, and up to four Assistant-
          Directors whose work is to assist the Director.




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2.3 Being a creature of statute, the scope and mandate of the
    Commission must be found in the law establishing the Commission.
    For the Advisory Board, its scope and mandate is to advise the
    Commission generally on the exercise of its powers and the
    performance of its functions under The Anti-Corruption and Economic
    Crimes Act 2003.


2.4 For the Commission, the entirety of our scope and mandate is to be
    found in Section 7 of The Anti-Corruption and Economic Crimes Act
    2003, which sets out the functions of the Commission. Briefly stated,
    the functions of the Commission are;
    (a) to undertake investigations and to assist other law enforcement
       agencies to investigate suspected corruption or economic crimes;
    (b) to advise any public body or person on ways and means of
       eliminating corrupt practices and to secure the revision of
       methods of work or procedures that may be conducive to corrupt
       practices;
    (c) to undertake public education against the dangers of corruption
       and economic crime; and
    (d) to undertake and institute civil action against any person for
       recovery of any loss or damage to any public property.


2.5 You will note, Parish Moderator, that by law, the Kenya Anti-
    Corruption Commission has no powers of prosecution. The former
    Kenya Anti-Corruption Authority did have powers of prosecution.
    However, when it was shut down judicially in December 2000, the
    next Parliament did not consider it wise, or safe, to grant the


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         Commission powers of prosecution. Instead, Parliament established a
         mechanism where the Commission, after conducting investigations,
         merely makes recommendations to the Attorney General for
         prosecution, for administrative action, for no further action, or for
         closure of investigation files for lack of evidence or other good
         reason.


     2.6 Reading the press, you might be forgiven for thinking that the
         Commission has singularly failed to achieve its primary and only
         responsibility to prosecute all corrupt persons in Kenya. This seed of
         discord is planted and re-planted by the press and watered regularly
         by politicians, among them lawyers who should know better. I repeat,
         once again, that KACC has no duty to prosecute anyone and cannot
         therefore be considered to have failed in the performance of such a
         duty.


3.   What results can the KACC show?


     3.1 Rome was not built in a day. On its mandate as I have already
         mentioned, what does the Commission have to show for its two and
         a half years in office? As I have alluded to earlier when discussing the
         public’s fixation with prosecution as the perceived solution to the
         cancer of corruption, the Commission has employed a holistic, three-
         pronged strategy of public education, corruption prevention and law
         enforcement.




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3.2 Public education is a distinct mandate of the Commission. The
    ultimate objective of public education is not merely to ensure that
    Kenyans know and understand what corruption is, that it is greatly
    disadvantageous to our society, and that it is an enemy of social and
    economic development. That knowledge is peripheral to the ultimate
    objective of public education which is to foster and inculcate, in
    Kenyans, an ingrained sense of anti-corruption, and personal
    attitudes and behaviour choices that shun corruption and corrupt
    conduct. This is a pillar of the anti-corruption effort which, if
    achieved, has a sustainable and self-perpetuating long-term effect.


3.3 In Public Education, the Commission’s outreach is extensive. Purely
    for illustration, under the Public Service Integrity Programme (PSIP),
    12,229 public sector employees have been trained to date, while
    under the Training, Research, Advocacy and Governance (TRAG)
    Programme, 145 senior officers from the public, private and civil
    society sectors have been trained.          Strategic interventions in
    mainstreaming anti-corruption, ethics and integrity content into the
    formal education system have been made.


3.4 The Commission has also sponsored categories in the Kenya Music
    Festival and the Kenya Drama Festival. This is additional to the
    holding of sensitisation seminars for all staff of the Kenya Institute of
    Education, all heads of secondary schools, the Kenya Nation
    Examinations Council and the sensitisation of 96 Provincial
    Directors of Education, District Education Officers and Municipal
    Education Officers.


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3.5 The second main plank of the anti-corruption effort and strategy
    adopted by the KACC is Corruption Prevention. Even from a
    chronological point of view, prevention ought to follow education.
    You will agree with me that it serves no useful purpose to preach
    strenuously to a hungry man against greed, and then proceed to leave
    him in a place with large pieces of roast meat hanging in front of him
    with the admonition that he should not help himself because greed is
    bad.


3.6 What corruption prevention seeks to do is to ensure that the
    opportunities and loopholes that might tempt even Angels are taken
    away and closed. The KACC does this through the systemic analysis
    of processes, practices and procedures in public institutions that
    either facilitate corruption or are a conduit for it. The main concern
    in corruption prevention is to address and deal a death blow to the
    twin evils of impunity and discretion. Impunity means that stewards
    of public funds and property do not fear the consequences of
    breaking the law. Discretion means that stewards of public funds and
    property can make subjective decisions that may be at odds with the
    public interest. Corruption prevention therefore comes in to ensure
    that the boundaries are clear, that honest public servants find it easier
    to remain honest, and dishonest public servants find it extremely
    difficult to pilfer public funds and property.


3.7 In pursuit of corruption prevention as described, the KACC has
    already analysed, with a view to sealing loopholes and corruption-
    facilitating processes, the systems and practices of the Kenya Medical


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    Supplies Agency (KEMSA), The Registration and Licensing of Motor
    Vehicles and Enforcement of Traffic Laws, the Department of
    Immigration in the Ministry of Immigration and Registration of
    Persons, the City Council of Nairobi, the Municipal Council of
    Mombasa, and, presently underway, an Examination into the Roads
    Sector and the Teachers Service Commission.


3.8 In corruption prevention, it is important to note that the work of the
    KACC is not completed when an Examination Report is handed
    over to the subject Ministry or Department. The KACC works in
    partnership with the examined institution to ensure that the
    recommendations are implemented in a timely and monitored
    manner.


3.9 The third plank of the KACC’s anti-corruption strategy is Law
    Enforcement. This comes in to punish those who have turned their
    backs on anti-corruption education, and to punish those who have
    found it irresistible to take advantage of weaknesses and loopholes in
    the public sector to perpetrate petty and grand corruption.


3.10 The Anti-Corruption and Economic Crimes Act 2003 captures, in the
    offences it creates, a wide cross-section of illegal conduct compositely
    referred to as corruption and economic crimes. The KACC
    investigates suspected corruption and economic crime and, on
    completion of the investigation, forwards the investigation file to the
    Attorney    General     with    recommendations     for    prosecution,
    administrative disciplinary action, or closure.


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3.11 Up to February 2007, the Commission has forwarded 254 files to the
    Attorney General with recommendations for prosecution in 185 files,
    administrative disciplinary action in 11 files and closure for lack of
    evidence in 58 files.


3.12 In the civil courts, 94 cases for the recovery of embezzled public
    funds amounting to Ksh 121,072,800.15, of which Ksh 12,585,583
    has already been recovered; 37 suits for the recovery of illegally
    allocated public land valued at Ksh 909,000,000; 48 applications for
    preservation of assets valued at Ksh 1.19 Billion and 1 application for
    joinder of the Commission in ongoing proceedings to protect public
    property valued at Ksh 50 million.


3.13 Still on recovery, 48 land title deeds and deed plans with an acreage
    of 89.5 Hectares and a value of Ksh 144 million have been
    surrendered. Further, not less than 13 Notices have been issued
    requiring their addressees to explain how their wealth was acquired.


3.14 As I have pointed out earlier, while the three-pronged strategy is a
    practical imperative for long-term success as opposed to short-term
    gains, the focus of our citizenry and the opinion-shaping Media
    remains firmly on the symptomatic aspect of Law Enforcement
    through prosecution of suspected criminals. I hope that my
    discussion this evening has brought home the importance of the
    longer-term view and perspective of a holistic approach to fighting
    corruption and economic crime.


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     3.15 The Kenya Anti-Corruption Commission embraces this three-
         pronged strategy in its institutional set-up, in its Strategic Plan 2006-
         2007, and in its participation in the National Anti-Corruption Plan
         that brings together all sectors of Kenyans society onto the same
         page in the war on corruption.


4.   What challenges does the Commission face?


     4.1 The first problem is that corruption did not begin with the
         establishment of the Commission. Indeed, corruption is so deep-
         rooted, and has such a wide network, that it permeates our society at
         all levels. Corruption, unfortunately, is institutionalised in the national
         psyche.


     4.2 The hard fact is that laying the foundations of an institution like the
         KACC, establishing its internal processes, recruiting staff worthy of
         its scope and mandate, and actually undertaking its mandate as
         described, takes time and resources.


     4.3 Changing minds and attitudes is no easy task. Kenyans have, through
         the years, adopted an ambivalent attitude towards corruption. The
         attitude is one of uncertainty compounded by tolerance, indifference
         and/or resignation - that corruption is so pervasive that fighting it is
         like trying to empty the Indian Ocean with a bucket.




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4.4 The legal process itself, riding on the Constitutional guarantee of Due
    Process, is often used and abused by accused persons to frustrate the
    progress and hearing of cases. Well-paid, senior lawyers mount great
    resistance, employ every trick in the book and make it virtually
    impossible to conclude matters. Constitutional applications and
    applications for adjournment for one reason or another are legion.


4.5 Corruption     also   fights   back.    Suspects    routinely   intimidate
    investigators and witnesses. The public money and property stolen is
    itself employed to fight the legal process.


4.6 The link between grand corruption and politics also comes to the
    fore. Politicians routinely pour cold water on the Commission’s
    attempts to get a grip on corruption. When targeted, as they often
    are, politicians regularly resort to tribal or ethnic bunkers, claiming
    that it is their community that is under unwarranted attack, whereas
    in actual fact it is their personal actions that are under scrutiny.


4.7 Fighting corruption is very much like a dog chasing its own tail. No
    sooner than you are following up on one investigation than another
    one comes to light that makes the one you are following up look
    fairly pedestrian in nature. This poses a problem to ongoing
    investigations. Distractions, often fuelled by great public pressure, are
    normal. The public expects newly uncovered cases of suspected
    corruption to be investigated immediately and the suspects
    prosecuted and jailed, preferably immediately. I leave it to you to
    imagine what happens when the Commission tries to point out that


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          every Kenyan is presumed innocent until proved guilty, and that Due
          Process is as important, if not more important, than the war on
          corruption.


     4.8 The Anti-Corruption and Economic Crimes Act 2003 is not itself a perfect
          piece of legislation. Indeed, no legislation can claim perfection. The
          KACC as the primary user of the legislation has made and continues
          to make proposals for legislative reform.


     4.9 Finally, grand corruption invariably has international connections.
          Suppliers, Ghost suppliers, foreign payments and remittances,
          technology, international travel and commerce all combine to make
          the investigation of grand corruption a feat of unimaginable
          proportions. Legal systems are different in different countries. It is
          not possible for KACC investigators to enter foreign countries to
          conduct investigations at will. Much lies on International Law and
          Treaties, and Diplomatic cooperation. These processes are slow,
          cumbersome and complicated.


5.   Partnership in the war against Corruption with St. Andrews Church
     and with its organs


     5.1 The country is currently implementing the National Anti-Corruption
          Plan. This Plan brings together all sectors of our society on the same
          platform and seeks to create synergy towards achievement of the
          objective of Zero Tolerance to corruption.




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    5.2 St. Andrews Church, and its organs such as the Justice, Peace and
        Reconciliation Committee, should seek to engage the National Anti-
        Corruption Plan either formally and directly through the Religious
        Sector representatives, or informally and indirectly by adopting the
        national anti-corruption objectives as its own and implementing them
        in its activities and plans. Both ways, the noble objectives of the
        National Anti-Corruption Plan are upheld, and national synergy is
        focussed towards achieving Zero Tolerance towards corruption.


    5.3 I thank you again for inviting me here this evening, and for taking the
        time to listen patiently and without interruption. I am now yours for
        interrogation.




Justice Aaron G. Ringera
Director / Chief Executive




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