Corruption in Kenya: An analysis of the inadequacies in the Kenyan legal and institutional

regimes in combating corruption.

Recently the Chief Justice of the Judiciary, Dr Willy Mutunga expressed his frustrations in the
war against corruption in the judiciary saying that the country was being run by criminal cartels
working with politicians. As long as I fight the cartels and they are protected, you cannot
achieve anything, you are taking these people into a corrupt investigating system, through a
corrupt anti-corruption system and a corrupt Judiciary, Dr Mutunga said.1 Corruption in Kenya
is the greatest challenge to the social economic development agenda of the country. This is
despite the numerous laws enacted to combat corruption in the country. Over the years several
legal and institutional regimes have come up in the fight against corruption.
The history of fighting corruption in Kenya dates back to colonial times. The collaborating chiefs
unduly enriched themselves by taking advantage of colonial practices such as livestock tax. The
colonial masters enacted the Prevention of Corruption Act, chapter 65 of the Laws of Kenya,
PCA, in 1956 to address public corruption.2 It provided for punishment of bribery involving
holders of public office. During the postcolonial period there was little compliance with this law.
The Police Anti-Corruption Squad was established in 1993 by the Government to fight
corruption and was disbanded in 1995. In 1997, the Prevention of Corruption Act was amended
to establish the Kenya Anti-Corruption Authority (KACA). It was disbanded in 2000 after it was
declared unconstitutional by the High Court based on inter alia, that the powers of KACA to
prosecute went against Section 26 of the then Constitution which had vested the powers of
1 : http://www.standardmedia.co.ke/article/2000193065/survey-kenya-ranked-third-most-corrupt-country-in-theworld/?pageNo=2

2 The Role of Parliament in Curbing Corruption edited by Rick Stapenhurst, Niall Johnston, Riccardo Pelizzo

prosecution on the Attorney General only3. Subsequently the Anti-Corruption Police Unit was
formed to fight corruption.
During the 2002 general elections a new government led by Mwai Kibaki was voted into power,
pledging to address the vast corruption menace that existed under the previous regimes.4 In 2003
the Anti Corruption and Economic Crimes Act (ACECA) was enacted. It established the Kenya
Anti-Corruption Commission (KACC) as the main legal body with the mandate to fight
corruption in Kenya. Further the Act provided for the various offences of corruption, their
investigation and penalties. It established special magistrates to preside over corruption cases.5
In August 2010 a new constitution was promulgated. It required Parliament to enact legislation to
establish an independent body to ensure compliance with and enforcement of Chapter Six of the
Constitution6. Pursuant to this Article, Parliament enacted the Ethics and Anti Corruption
Commission Act, No. 22 of 2011 which came into effect on 5th September 2011. It amended the
Anti-Corruption and Economic Crimes Act (ACECA) by repealing the provisions establishing
Kenya Anti Corruption Commission and its Advisory Board.7 It retained all the other provisions
relating to corruption offences and economic crimes, their investigation and prosecution. The
Ethics and Anti-Corruption Commission, EACC, is mandated with implementing the provisions
of the Anti-Corruption and Economic Crimes Act.
3 case
4 PNU MANIFESTO NARC ON CORRUPTION
5 Sx aceca
6 Article 79 ,The Constitution of Kenya 2010
7

In 2015 a bribery bill was introduced in parliament in a bid to address the supply side of
corruption. It was signed into law by the president. It aims at punishing the perpetrator s of
corruption.
It is against this evolution of legal and institutional regimes in Kenya that this study aims to
establish the shortfalls in their ability to fight and eliminate corruption. The study will also look
at several major corruption scandals in the country how they have been handled despite the
shortfalls in the legal and institutional regimes.
Statement of the problem
This study will investigate the shortfalls of the Kenyan legislation and institutional frameworks
on combating corruption with reference to several case studies of corruption scandals.
Research questions
1. What is the legal and institutional framework on fighting corruption in Kenya?
2. What are the shortfalls, if any, in the legal and institutional framework on curtailing
corruption?
Research objectives
1. To analyze the legal framework on corruption in Kenya.
2. To analyze the institutional framework on fighting corruption in Kenya.
3. To investigate inadequacies of the legal and institutional regimes have been fighting
corruption.
4. To investigate the shortfalls of the legal and institutional regimes in combating
corruption.

Hypothesis
1. If the legal and institutional framework in Kenya was competent corruption
would be eradicated.
2. The shortfalls of the institutional and legal framework combating corruption are
responsible for the prevalence of corruption in the country.
Theoretical framework
Economic Theory
The theory considers corruption as behavioral phenomenon occurring
between the state and the market domains, or a symptom of dysfunctional
governance within the public sector. Economic theory assumes that people
and firms respond to incentives by taking into account the probability of
apprehension and conviction, and severity of punishment. The theory takes
cognizance that ethical attitudes matter and the temptation threshold is
subject to individuals moral foundation. The theory stress that, to a lesser or
greater degree, people respond to incentives and that changes in corrupt
activities occur if the marginal returns from crime exceed the marginal
returns from legal occupation by more than the expected value of the
penalty. This theory is focuses on behavior, benefits obtained and the penalty
and is relevant in analysis of anti-corruption law and penalty as deterrence to
corruption.
Research Methodology
The study relies on secondary data. Library based materials such as
textbooks, articles, published journals, statutes, case law, international and
domestic instrument reports provided a large knowledge base from which

data was gathered. Other sources include media publications such as

newspapers and the internet.

Literature Review
UNITED NATIONS CONVENTION AGAINST CORRUPTION
The foreword by the then secretary general Kofi A. Anan of the United Nations notes
that corruption is an insidious plague that has a wide range of corrosive effects on
societies by undermining democracy and the rule of law, violating of human rights,
distorting markets, eroding the quality of life and allowing organized crime,
terrorism and other threats to human security to flourish. This evil phenomenon is
found in all countries it is in the developing world that its effects are most
destructive. It disproportionately hurts the poor by diverting funds intended for
development, undermining a Governments ability to provide basic services, feeding
inequality and injustice and discouraging foreign aid and investment. Corruption
leads to economic underperformance and is a major obstacle to poverty alleviation
and development.
Akech 8states that corruption in the Kenyan government is an institutional problem
attributed to the predominance of arbitrary power in the statutory order. The
executive, legislature and the judiciary arms of government are found to have
engaged in corruption. It was established by the Commission of Inquiry into PostElection Violence that the executive improperly used public service. Prior to the
2007 general elections the head of Public Service ordered senior police officers to
train a large pool of junior police officers to act as agents for the ruling party, the
Party of National Unity. They were to disrupt polling and where possible ensure that
government supporters amongst the candidates and voters prevailed. In the
legislature special interest groups influence legislators jeopardizing their ability to
uphold the public interest as evidenced by the events surrounding the tobacco
control act 2007. Since the late 1990s, the Kenyan government has attempted to
regulate the sale, marketing, and consumption of tobacco products, with the aim of
implementing the World Health Organization's Framework Convention on Tobacco
Control. However, tobacco companies saw these attempts as a threat to the
profitability of their businesses and therefore lobbied against the enactment of any
adverse legislation. A bill introduced in the legislature in 1999 did not make any
progress until 2004, thanks in large part to the resistance of the tobacco lobby.
When the bill was reintroduced in the legislature in 2004, the tobacco lobby
8 Akech, Migai (2011) "Abuse of Power and Corruption in Kenya: Will the New
Constitution Enhance Government Accountability," Indiana Journal of Global Legal
Studies: Vol. 18: Iss. 1, Article 15. Available at:
http://www.repository.law.indiana.edu/ijgls/vol18/iss1/15

organized a retreat for more than forty legislators at which it prevailed upon them to
make certain desired changes to the bill. Reports revealed that the legislators were
each flown to the beach resort that served as the venue for this meeting,
accommodated, and entertained at the expense of the tobacco lobby. While the
tobacco lobby was perfectly entitled to seek favorable, legislation, this retreat
arguably undermined the ability of the legislators to act free of undue influence. The
judiciary too is culpable of condoning corruption as demonstrated in the handling of
the Goldenberg scam affair. It was found that abuse of power and corruption in
Kenya can be attributed to the absence of effective regulatory principles and
mechanisms.
Mutual and muna outline the corrupt practices of the Kenyan government regimes
under presidents Kenyatta moi and Kibaki. Under the Kenyatta regime the president
amassed immense political power through various constitutional amendments.
Kenyatta having inherited the colonial structures designed to serve british imperial
and financial interests