UNIVERSITY OF OXFORD

OXFORD INSTITUTE FOR ETHICS, LAW and ARMED CONFLICT

(Conference on the Legal Remedies for Corruption on 28/6/2014)

EMERGING LEGAL TOOLS IN CIVIL SOCIETIES FIGHT AGAINST
CORRUPTION (KENYA EXPERIENCE)
By Wamuti Ndegwa
ABSTRACT
The focus is on the new legal tools emerging in Kenya in civil societys fight against
corruption.
Briefly, the new tools include,
a. Participating in law making by direct petitions to Parliament to debate matters relating
to corruption, amend, repeal, or enact corrective legislation. Private persons have
petitioned Parliament to enact a qui tam law similar to the US False Claims Act. The
law if enacted will empower private persons to institute asset recovery claims on
behalf of the government but in return for a commission.
b. Litigation to enforce the values and principles of good governance, accountability, and
integrity now enshrined in the 2010 Constitution. Civil societies have obtained court
orders removing public officers from public office on account of allegations of
corruption and lack of integrity. Other actions sought release of public documents
evidencing corruption while others seek to stop payment of public funds in corrupt
transactions.
c. Private criminal proceedings. By express provisions, statute law now empowers
private persons to institute criminal proceedings without leave of Court. No
proceedings have been brought under the provisions.
d. Criminal proceedings in foreign courts. Civil societies have instigated institution of
criminal proceedings in foreign courts against Kenyas officials for corruption
offences committed in Kenya.
The first three tools emerge from a very progressive constitution enacted in August 2010. The
constitution expressly embodies the principles of good governance, openness, integrity, public
trust, and accountability. Further, it expressly empowers every person to protect and enforce
the principles. Though the success of the new tools in Kenya may be attributed to the new
Constitution, the tools may in the absence of express prohibition, apply in other jurisdictions
because the principles of law are largely the same with or without supporting constitution or
legislation. With the new tools, civil societies have in the last three years registered significant
success in challenging, deterring, and remedying corruption.
However, there are still remains significant challenges in translating the principles into
effective tools. The most significant challenges are lack of sufficient evidence of the
criminality, lack of legal expertise in litigation and legislative drafting, and reluctance of the
state institutions including courts to embrace the new rights.
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