This dissertation seeks to prove that the EACC has been ineffective in the fight against corruption. It also analyses the history of corruption in Kenya in order to determine the various factors which frustrate the fight against corruption. It also analyses the legal framework of the EAC, in order to establish the existing loopholes within the system and how these loopholes have been exploited. This is with respect to the lack of prosecutorial powers of the EACC.
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This dissertation shall be limited to corruption offences that have occurred within the territory of Kenya. This dissertation shall only deal with a specific types of corruption; grand corruption. It exposes the corruption within the public sectors, and their prosecution for the offences of grand corruption or lack thereof. It shall also look at factors that impede prosecution of these corruption cases.
The justification for undertaking this dissertation is due to increased number of corruption cases that go unresolved. There have been huge economic losses over the years and they are unjustifiable. The anti-corruption initiatives undertaken should be more effective for their purposes, the EACC should in this regard be empowered as is necessary to ensure efficient prosecution of graft. The dissertation recommends that the current anti-corruption law be amended in order to confer prosecutorial powers upon the EACC.
This chapter introduces the research that influenced the topic of this dissertation. It presents the research problem and sets the objectives of the dissertation while delineating the scope of the study. It provides the justification for this study and provides a summary of all the chapters of this dissertation.
There is no universal definition of the word corruption as it takes various forms. Despite this, corruption is the unlawful use of official power or influence by an official of the government to either enrich himself or further his course and/or any other person at the expense of the public, in contravention of his oath of office and/or contrary to the conventions or laws that are in force. It has also been defined as the abuse of entrusted power for private gain. However, for the ordinary Kenyan it basically means that a person in power has stolen their hard-earned money. The term corruption has become a household name and a practice that has been widely accepted and normalized. Despite the various legislations and anti-corruption initiatives put in place to tackle this menace, the scourge has rapidly grown over the years. Corruption cases have been on the increase based on Transparency International’s Corruption Perception Index.
This study seeks to address the deficiency in Ethics and Anti-Corruption Commission, the body that has been mandated to combat corruption and economic crimes through law enforcement, creating awareness, preventive measures, asset recovery and conducting investigations. However, EACC has been faced with various challenges in carrying out its mandate such as a slow judicial process impunity of some members of the executive and its lack of prosecutorial powers.
Before the creation of EACC, a similar statutory body was instituted with the same mandate. Kenya Anti-Corruption Authority(KACA) preceded Kenya Anti-Corruption Commission(KACC),which eventually failed in the fight against corruption. The current Ethics and Anti-Corruption Commission was formed. The EACC is established pursuant to article 79 of the 2010 Constitution read together with section (1) of EACC Act of 2011.
Corruption in Kenya can be traced back to the early fledgling years since independence through the president had extreme powers vested in him that was constitutionally backed. In the case of Mwangi Stephen Muriithi v Attorney General for example, the Plaintiff in this case was working in the Intelligence Branch of the police, he was forced to retire for reasons unknown to him, he thereafter sought for his pensionable rights as an officer to which the court held that his retirement was effected by virtue of Section of 25 of the 1963 constitution, which provided that ‘every person who holds office in the service of the Republic of Kenya shall hold that office during the pleasure of the President.’ The suit was thereafter dismissed with costs.
Constitutional offices were occupied by persons whom the president appointed without being subjected to the vetting procedures in place. However, with the coming of the 2010 Constitution, presidential powers became limited and his duties were clearly stated. In nominating persons to constitutional offices, the National Assembly’s approval is required.
Since the establishment of Ethics and Anti-Corruption Commission, corruption cases have exponentially been on the rise especially within the executive which has led to the dwindling confidence level by the public in the governance of the country.
As a good population of the country deal with issues of drought, flood, lack of educational and medical facilities, the leaders so rightful elected to these prestigious offices, loot aimlessly without thinking of its dire consequence on the people.
This research address the various impediments in the realization of EACC’s mandate and whether it’s been effective in combatting corruption. Justice seems a very elusive concept especially for the poor and vulnerable, while the rich who are politically connected get their way. For example, the Kenya Anti-Corruption Unit has time and again been blamed for undertaking ‘small fish’ prosecutions while the ‘big fish’ are left free.
The government has incurred grave financial cost in establishing a body to combat corruption, which has so far proved ineffective. Corruption is a cancer in Kenya and therefore the need to examine why the body mandate to fight corruption has been reluctant in pursing the grand looters. Economic development and growth has been greatly affected by corruption.
This section attempts to understand the causes of corruption. Despite the lack of a universal definition and the broad context, there have been various theories attributed to the causes of the corruption.
The Public-Choice theory is premised on the view that politicians and government bureaucrats as motivated by the same economic interests as private individuals and firms. This theory further posits that the ‘corrupt official’ know that there have a higher chance of getting away than being caught. Studies conducted by the USAID have shown that, increasing of salaries for the government bureaucrats does not necessarily reduce corruption. This theory states that public officials are corrupt because they perceive that the potential benefits of corruption supersedes the potential cost.
Correlation theory is based on a mutual connection between social, political, institutional and individual factors
Corruption is fostered where one has a monopoly of power over resources and this is combined with discretion and a lack of accountability. In this way, it is proposed that the absence of these factors would frustrate and reduce corruption, that corruption would unlikely strive where there is no monopoly over resources, where the authorities do not have discretionary powers and where the authorities are held accountable for their actions.
This study approaches its objective by use of primary and secondary sources. The primary sources include the 2010 Constitution, the existing legislations on corruption and case laws. The secondary sources include books, online journals and extensive reports available online. This dissertation is strictly based on a desktop research and does not involve any active field research due to time constraints.
The focus of this dissertation is limited to grand corruption and looting within the public sector. Its aims at corruption by public officials within Kenya. However, its shall entail an analytical and comparative study of anti-corruption regime in Kenya and that of foreign jurisdictions.
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