Current Status of Corruption in Kenya

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Corruption can be seen as various types of unlawful acts, they however, will usually all involve a person abusing their power for their own benefit, or for the benefit of people closely associated with them such as family. This can be public officers using public resources for their own private good, or improper contracts awarding by corporate executives or taking other decisions in exchange for bribes. Corruption is not an isolated case to this country but to every country a certain level of the same goes. However, the issue of corruption in Kenya is a real big problem. According to Transparency International, Kenya scores only 28% on the corruption Perception Index an index that rank country score out of 100 with the zero being most corrupt and 100 being cleanest. In fact the average Kenyan get involved in 16 graft acts each month just in the normal everyday life. A study by Forbes magazine released in December 2015 stated that even though the country had made significant improvement in many areas, corruption in public and private sector is a serious impediment hindering the country from achieving its full potential. Kenya competitiveness has been frustrated by high corruption levels that entrench every sector of the economy. Frequent demand for bribes by officials lead to increased business cost for investors. Widespread tax evasion and fraud in public procurement is rampant. In 2013 a survey indicated that a third of companies viewed corruption in the country as a major constraint to their ability to operate efficiently and effectively. This serves an indicator of the detrimental effects of corruption to business.

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In Kenya, the performance of businesses has been held back a great deal with high corruption levels in almost all sectors of the economy

The judiciary

The Kenyan judicial system has been a Centre of public scrutiny over allegations of bribery and corruptions threatening its very mandate of providing justice and legal redress to Kenya citizens and more importantly a safe business environment. The conduct of some judicial officers has raised eyebrows rubberstamping the erosion and miscarriage of justice. A case in point is the one involving former registrar of the judicially Ms. Glady Boss shollei. She had been charged together with her former deputy Kissinger kaikai, former director of supply chain management Martin Otieno Okwata, former finance director Benedict Abonyo Omollo and tender committee members. They had been accused of flouting procurement law on construction awarding of construction tenders for building of pre-fabricated court buildings in Tawa , Garsen ,Mavoko and garsen. On the pre-fabricated court houses, they were accused of offering the tender to Timsales Ltd, flouting procurement laws. They were alleged of failure to seek the tender committee approval in conducting pre-contract negotiations. They were also accused of varying terms and conditions of a contract without approval from the committee. The charges were however withdrawn by the Director of public prosecution. The DPP’s withdrew the charges following a Court of Appeal decision, which illegalized any case by the Ethics and Anti-Corruption Commission (EACC) between May 2015 and June 2016, when the anti-graft body was not properly constituted. Businesses in Kenya usually face a risk of corruption when dealing with judicial system, some companies especially smaller ones face unfair competitions from the giant companies due to bribes and irregular payments to those in the judiciary in order to delay or cover up for their illegal dealings. There are so many unresolved bribery scams that are court related in Kenya where companies and managers involved haven’t been investigated and legal actions taken against them e.g. Goodyear’s tyre deal-this scandal involved Goodyear tyre and Rubber Company, a foreign company that operates tread setters tyre limited as its Kenyan subsidiary. The US regulators on the allegations that its subsidiary had engaged in graft in order to secure business in Kenya fined it sh1.5 billion. It is alleged that the bribery involved cash payments and expensed for promotional products in the trendsetter books. Another 8.3 million is alleged to been paid to the local government officials in Nairobi county including the city council employees, police and building inspectors. The Sanofi bribery scandal-it involved Kenyan doctors over the claims that Sanofi Company, a French firm bribed them to secure sale contracts in Kenya. The Kenyan judicial system has not taken any legal actions despite the claim raised by Sanofi CEO Mr. Chris Viehbacher.

The police service

Corruption is rampant in Kenya’s police sector with the sector been ranked as the most corrupt sector in the country. Research shows three out of four Kenyans consider all Kenyan police officers as corrupt. More than half of all Kenyans who have come in contact with the police is reported that in one way or the other have paid a bribe to be let free even when they haven’t any crime. Corruption in the sector has made it difficult for businesses in the country to operate efficiently for example, bribes on Kenyan roads are the daily business as usual where matatu operators have to pay to survive.’Hata kachai’ is not a new term to most matatu operators. Traffic policemen are spread all over the country to ensure safety on our roads but on the contrary they are even worsening safety on the same roads they are required to guard because of bribes. Lack of safety on the roads is a big challenge to businesses and even individuals as accidents occur day in day out causing a lot of losses, time wasted, lives and destruction of business assets. A case in point is Joshua Muindi Maingi v National Police Service Commission, Inspector General of the National Police Service & Deputy Inspector General, Kenya Police Service. The outcome was declaration of section 88(4) of the National Police Service Act that provides for disciplinary proceedings as unconstitutional. The petitioner was subject to criminal proceedings in Anti-Corruption Case No. 2 of 2012 in the Chief Magistrate’s Court at Nyeri. The petitioner in that case was charged with 7 counts under the Anti-Corruption and Economic Crimes Act. The charges included corruptly soliciting for a benefit contrary to section 39 as read with section 48(1) of the Act; corruptly receiving a benefit contrary to section 39(3) as read with section 48(1) of the Act; and concealing evidence contrary to section 66(1)(c) as read with section 66(2) of the same Act. The trial court found that the evidence could not sustain a conviction on all counts as the petitioner was given the benefit of doubt and was acquitted under section 215 of the Criminal Procedure Code on all the 7 counts. After the acquittal the petitioner wrote to the 3rd respondent asking for the lifting of the suspension in accordance with section 62(3) of the Anti-Corruption and Economic Crimes Act. The 3rd respondent lifted the interdiction and directed the petitioner to report back on duty awaiting further instructions.

Public services

The competitiveness of business environment in Kenya is impeded by rampant corruption in the public service sector, complying with administrative requirements takes too long i.e. business and licensing can’t go through as fast as possible without bribes playing the game. Firms and individuals are forced to make persuasion in form of some irregular payments in order for them to be served with operating licenses. Sometime appointment into public offices lack transparency and therefore people of questionable integrity ends up holding public offices for example a case Benson Riitho Mureithi (Suing On His Behalf and on Behalf of the General Public v J. W. Wakhungu Cabinet Secretary Ministry of Environment, Water and Natural Resources& Attorney General. The petitioner filed a petition before the High Court challenging the constitutionality of the appointment of the interested party as the chairman of the Athi Water Services Board by the 1st Respondent. He argued that the respondent failed to take into consideration the provisions of Article 73 in Chapter 6 of the Constitution of Kenya, 2010 when making the said appointment.

The petitioner sought for nullification of the appointment of the interested party, a direction to the Cabinet Secretary to take into consideration factors under Article 73 of the Constitution of Kenya, 2010 and to demonstrate to the public that the interested party was the most suitable person for the office .The court The respondents’ failure and omission to have regard to the provisions of Chapter 6 of the Constitution of Kenya 2010, when making the appointment of the Chairman of the Athi Water Services Board was unlawful and unconstitutional and therefore appointment of the Interested Party as the Chairman of the Athi Water Services Board was declared null and void and subsequently quashed.

Land administration

Land is a very vital factor of production in an economy, it is a backbone of economic and a facilitator of business activities as without land, there shall be no business locations neither business existence. In Kenya, corruption in land administration is very high with Kenyans reporting a high possibility of bribery demands when in contacts with land service officials. The practices reportedly occur in almost 20% of all interactions. Corruption in the sector is so rampant that even possession of a land title deeds by businesses is not guarantee for the legal ownership of the land as someone can easily bribe the land registrar to revoke your title deed with cases of disappearance of real land title deeds from the land registrar’s office occurring frequently with no attempts made to trace them. An example Daudi Kiptugen v Commissioner Of Lands Nairobi Lands & 4 others the case by plaintiff contending that action by Commissioner of Lands in issuing a lease in favor of 4th defendant was improper; plaintiff holding a registered lease over suit land; defense that the lease to plaintiff was issued improperly; evidence showing that plaintiff was not allotted the suit land but another parcel of land; improper therefore for him to have been issued with a lease over land that was not allotted to him; order that plaintiff's lease be cancelled.

There have been so many instances of land grabbing in the country with the land grabbers providing legal prove of full ownership of the land at the end leaving many mouths open not knowing how it even happened. A recent pull and push land grabbing instant involved the school children of Lang’ata Road primary and the management of Weston Hotel, a hotel that is owned by Kenya’s deputy president. It was a rare show of impunity in land grabbing crime for many decades, the poor children lobbed with teargas by the police instead of helping them get their land back and learn comfortably.

Another hundreds of acreages of land including the agricultural development corporation, national youth service land and many more which have been grabbed by powerful in government have been traced either e.g. the waitiki land scam where since 1997, it has been at the center of political animosity at the coastal region with the three governments failing to bring the land matter to amicable close.

Poor land administration with corruption in the sector makes it hard for businesses to efficiently operate in the country with cases of many businesses and property built on lands allegedly illegally acquired being demolished without prior notice to the effect. Billions of money has been lost in such instances rendering some businesses unable to operate as ongoing concerns.

Tax and customs administration

Tax administration carries a high risk of bribery and corruption in the country. Companies operating in Kenya claim that irregular payments and bribes in the process of tax payments are very common. Most Kenyans perceive most all tax officials as being corrupt. Tax rates are identified among the most difficult factors for businesses and the yearly tax return filing is seen as being burdensome and unnecessary, failure to which attracts heavy penalties to firms and even individual residents.

There have been cases of corruption witnessed in the sector with one involving KRA officials and the BAT company being on the limelight, the cigarette scandal where KRA officials accepted bribes so that the BAT company could an upper hand in the east African cigarette market over a local firm in Kenya. KRA undermined itself from performing its role and keeping strict confidentiality in handling tax matters of individuals and firms in the country. Maximum level of integrity is expected from it as it is an entity that has been entrusted with the duty of collecting taxes but instead it gets involved in unexpected crimes.

It was also reported in the Daily nation news’ report about corruption behind KRA failure to map property. It had failed to heed to a directive given through the finance bill budget 2013/14 to map all property with most plausible reason being that, the KRA staff including the senior managers are the landlords of those property. They feared being exposed as major thieves of government revenue through bribes and revenue under-declarations to share the difference amongst themselves. An example of a case is Republic v Kenya Revenue Authority. In this case the commissioner of customer service a Mr. Julius Musyoki Ex-parte Darasa Investment Limited where in the court proceedings it was argued that Darasa Investment Ltd had access to insider information in an attempt to evade tax payments summing to 2.5Billion.EACC undertook investigations of ten KRA officials including two commissioners believed to have colluded with the company to aid it tax evasion. Darasa Investment Ltd had imported brown sugar from Brazil for which customs duty had not been paid. The revenue authority could not initially levy the 2.5billion.Justice Eric Ogola Ruled that Darasa investment Ltd was to be cleared duty free. However later on a lot of contractions and inconsistent paper work were discovered on the part of Darasa Investment Ltd and was therefore found liable.

Public procurement

This sector has been on the attentions of almost all Kenyans due to frequent corruption cases in the sector. Companies report that in order to secure a public contract in the country, bribery and fraud must play the game. Allegations exist that high-level corruption takes place in energy, airport construction and infrastructure procurement processes. Many firms are usually awarded procurement contracts even when they do not comply with public procurement laws in the country. The one involving former registrar of the judicially is Ms. Glady Boss shollei. Ms. Shollei had been charged together with her former deputy Kakai Kissinger, former director of supply chain management Martin Otieno Okwata, former director of finance Benedict Abonyo Omollo and tender committee members Wycliffe Wanga Ombunde, Nicholas Moturi Okemwa, Nicholas Mbeba and Thomas Oloo Atak. They had been accused of failing to comply with procurement law on tenders for the construction of pre-fabricated court buildings in Mavoko, Runyenjes, Tawa and Garsen On the pre-fabricated court houses, they were accused of offering the tender to Timsales Ltd, in breach of procurement laws. They were accused of failing to seek approval from the tender committee to conduct pre-contract negotiations. They were also accused of varying terms and conditions of a contract without approval from the committee. The charges were however withdrawn by the Director of public prosecution. The DPP’s move was informed by a Court of Appeal decision, which stated that cases brought by the Ethics and Anti-Corruption Commission (EACC) between May 2015 and June 2016, when the anti-graft body had no commissioners, were illegal.

The legislature

The legislative arm of the government has had its fair share of effects of corruption rot. The Parliamentary Service Commission has been accused of scheming to vary the construction cost of a storey building meant for MP’s offices by around 1billion.The speaker of the national assembly Mr. Justin Muturi had to issue a statement to refute the allegations. Cases have emerged where parliamentarians have been accused of mismanagement and embezzlement of public funds. In cases of Hon James Ondicho vs. Attorney General, the Anti-corruption commission and the Commissioner of police the Member of Parliament had appealed a previous court ruling claiming his rights had been violated during his arrest, arraignment and prosecution. He had been accused of withdrawing cash from West Mugirango CDF account and diverted the money to his personal use violating the rules under the CDF act. The sum amount involved was Kes1,050,000 where the court ruled it be deposited back to the CDF account. His appeal was however dismissed and the prior ruling upheld.

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