Corruption: Kenya’s Uhuru has to make difficult choices

In her 1969 book Death and Dying, Elisabeth Kubler-Ross, the Swiss psychiatrist, set out a five-stage emotional path to death, namely: Denial, anger, bargaining, depression and, finally, acceptance. The Kubler-Ross model describes, roughly, how most people face any deeply unpleasant experience: It isn’t true, they first say.

Then they lash out and blame others. As the inexorable comes ever closer, they cast around for relief, hoping for a little good news; that is then followed by despair before, at last, they calm down and accept what must surely be.

President Uhuru Kenyatta’s mortal problem is corruption and if his wretched helplessness at the State House Governance and Accountability Summit last month represents his state of mind, the president has, finally, arrived at stage four, just one before acceptance. That is good news: until the president accepts that Kenya has a deadly problem, he cannot fix it.

When the president was first told about the scandal in the National Youth Service (NYS) and that his most trusted minister and her senior officials were corrupt, he rushed to their defence, denying that there was a problem. Later still, he was presented with a list of 175 senior officials that the Ethics and Anti-Corruption Commission was then investigating and warned that graft was a bigger problem than initially thought. His response was an ill-tempered speech, during which he sent most of them home.

He has since been cantering along the grief-path and only now despairingly admitting that he is unable to fight corruption. What could possibly make president Kenyatta finally accept and confront the pestilence that Kenya faces? If anything could, it would be the latest scandal in the health sector. It has the right spurs to action.

It has sucked in his relatives — including his sister — and friends. Two, it affects one of his flagship projects — maternity health. Three, perhaps most inconveniently, it comes less than a year to an election in which corruption must figure.

Health funds

At issue in the scandal is a Ksh5 billion ($50 million) scandal, out of which, Ksh800 million ($8 million) had been set aside for the government’s flagship maternity project, which an internal audit now says has been allocated in questionable ways by the Ministry of Health.

In a vociferous denial, the ministry lists projects that it says the money has funded and claims that no monies have been lost. The denial is implausible: even if the ministry’s account of the matter is credible, the spending is full of irregularities and illegalities.

One, the way this money was appropriated and then disbursed is plainly unconstitutional. The fiscal structure set up by the constitution has two parts; all public money either belongs to the national government or to county government.

In the main, money follows function. So if a function belongs to the county government, the money that funds that function belongs to counties. In 2013, health was transferred to counties. That means that money for health belongs to counties, not to the national government. In this case, the national government grabbed the health funds, re-baptised those funds as its own funds and has been doling them out to counties as “conditional grants.”

That is illegal. “Conditional grants” are funds that the national government gives to counties- at its own discretion and with its own conditions — out of its own share of the budget. It cannot give conditional grants from county funds that it has illegally sequestered, even if, as here, those funds are donor funds. It is the nature of the function that the money is meant to fund — county or national — not the source of funding that makes a grant a conditional grant.

If it is true that the President Kenyatta’s relatives got a share of the money, the ministry cannot defend such payouts with the argument that the services were competitively procured and that Kenyatta’s relatives gave value to the public. The president’s sister should not be bidding for government jobs under the country’s procurement rules as they stand. The argument made in some quarters that those rules don’t apply because Kenyatta does not run the Ministry of Health is oafish. The law’s intention is to stop influence peddling, not to invite officious bickering about who really runs the ministry of health. What are the chances that the ministry would knowingly knock out the president’s sister from bidding?

Even if the legalities of this suspect spending were kosher, the president would still look bad. President Kenyatta’s supporters usually defend his anti-corruption credentials with the non sequitur that his family is filthy rich, meaning that he has no money needs that would tempt him into corruption. If true, why are his relatives scrambling for public procurement under programmes set aside for marginalised categories? There is also the delicious if cutting paradox that the First Lady has been so active mobilising the nation to raise private funds to eliminate maternal and early childhood deaths through charitable events — including marathon runs — even as Kenyatta’s other relatives queue up for a slice of public money set aside for the very purpose. What will dinner conversation on this topic be at the next family reunion?

PR-driven campaigns

It is a ticklish problem: Kenyatta would not want to go into the next election with his corruption problems emblazoned on his opponents’ billboards. Even this late, there are three things he could do to salvage some credibility. However, all three are difficult, counter-intuitive, contrary to his instincts and unlikely to be popular with his cabal of inept advisors.

He must abandon his PR-driven anti-corruption campaigns. So far, his entire strategy rests on glitzy stagecraft. Behind the scenes, what is publicly announced is immediately clawed back to the point of origin. Officials are sacked or sent on leave “pending investigations” but both the public and the culprits are wise to these moves: They know that the deck is merely being shuffled. Those “sacked” will be packed somewhere else until the heat cools off. Similarly, a slew of impressive reforms are announced to great ceremony but the point is to impress the gawkers out there, not to change things.

So far, President Kenyatta’s anti-corruption strategy has been purposely built to deceive, and not just the public but also the government’s benefactors- including donors and investors. When officials meet donors, they will typically wring their hands and give the usual laments. The government “lacks capacity,” “institutions are weak and need to be refurbished,” “technology can help but the government needs support to build the infrastructure to go digital” and the like. A few are impressed with this “frank talk” and some will inject money if not directly into Treasury then into projects on “capacity-building,” “institutional reforms” and “digital platforms.” These are “reform garnishes” and they do not work.

President Kenyatta needs a proper diagnosis of the malady. The problem is that the legitimacy of both state and government has collapsed. As graft has blossomed, the state has become ineffective. This is in the DNA of corrupt economies: It is impossible to profit illicitly if institutions are strong. Inexorably, corruption must subvert institutions. The corollary is that once institutions are weak, criminals prey on legitimate businesses, driving them under. Corruption is thence the only way to make money.

When corruption becomes the only profitable business, the knock-on effect on quality of government is particularly pernicious. To begin with, it nurtures a predatory public service, because authority and coercion are easily the most effective means of extortion. Inevitably, the public service morphs into an attractive place for those who have no scruples about using the public system for illicit gain.

As Sarah Chayes notes in, Thieves of State: Why Corruption Threatens Global Security, when a mafia hires enforcers, it selects the recruits for criminality. Similarly, if the government fashions itself into a criminal network, it retains the unscrupulous and drives out the honest.

Consider this: Whenever the government has offered golden handshakes to cut down staff, it is the good guys that bail out first, not the nasty.

So even as the president despairs that corruption abounds in his administration, it is because as is, his government just cannot attract good people.

Third, President Kenyatta must have the guts to battle and reform Kenya’s “shadow state,” that is, the combination of the security machinery and illicit businesses that protects the administration and finances politics. The shadow state exists not just in Kenya but also in Angola, the Democratic Republic of Congo, Zimbabwe, Nigeria, Guinea and other high impunity environments. In such countries, called “cryptocracies” by Tom Burgis in his recent book, The Looting Machine, presidents survive by keeping the security forces sweet and wangling illicit payments from bandit businesses to fund elections.

Oversight

Cryptocracies depend on a security system that can be relied on in political turmoil. Since 2013, President Kenyatta, a civilian, has increasingly pivoted to the security forces, inserting retired generals into civilian positions and optically, frequently donning military fatigues. At the same time, both the police and the armed forces have had a free hand to make money. Most senior officers in the armed forces are successful businessmen, beneficiaries of a military procurement industry without public oversight or scrutiny. In places like Somalia, officers have become merchants, profiting from the illicit sugar and charcoal trade.

The police are, in effect, roving bandits, living off the public through bribes and menaces.

It is simple, as Sarah Chayes says in her book — the Kenyan state is a vertically integrated criminal network. At the bottom are junior operatives who act as collection agents. The juniors survive by funneling money to their seniors. These pay-outs to seniors help the juniors in two ways. One, they allow them to milk the system without interference from the top. Two, they guarantee that when under attack, the juniors will be protected by their seniors. If senior officers do not protect juniors under threat, the system will collapse and, with it, the lucre that keeps the system going.

But a cryptocracy must also win power in elections, however fake those are. That means on a lot of money. That also means not being too fussy about how regime financiers make their money. The case of Nigeria’s largest textile smuggler, Alhaji Dahiru Mangal, illustrates this point nicely. It also shows how power and illicit money are linked. Described as a “billionaire, a confidant of presidents, a devout Muslim and philanthropist” Mr Mangal, author Burgis says, smuggles cheap Chinese textiles into Nigeria. These illicit imports have ruined Nigeria’s once thriving textile industry.

Yet, even as he has impoverished Nigerian textile workers, Mr Mangal’s political influence has grown. He and his allies financed the late Yar’Adua’s presidential campaign. When Yar’Adua won, the head of the Nigeria’s anti-corruption commission, Nuhu Ribadu, who had previously targeted Mr Mangal, was forced out of office, underlining the power of corruption to bloc reform.

Here too, there are Mangals. And with political financing as opaque as it is, these shadowy Mangals will always have a disproportionate influence on government policy. It is a vicious cycle because politicians must allow the financiers to play the system for more funds for the next electoral cycle.

It is a brutal picture. What it says is that President Kenyatta faces some stark and unpleasant choices: A frank and difficult family talk about their family businesses, difficult decisions and brutal changes to attract good people to public service; stop coddling security sector businessmen and profiteers and ditch shadowy financiers and influence peddlers. Nothing in his past says that he can do any of that; that is the sad part.

* Wachira Maina is a constitutional lawyer based in Nairobi. This article previously appeared in The East African, a regional weekly published by Nation Media Group.

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