Kenya’s debate around corruption with respect to education and maize illustrates, once again, just how seemingly impossible it is to do the right thing and how cynical many public officers have become.

In both scandals, the debate followed the predictable cycles: Initial denial; pressure from the domestic public; pressure from the international public; half-hearted capitulations in the form of promises of investigations; investigations; the release of an array of names of public officials; calls for going beyond strictly legal accountability to political accountability; refusals to accept the same – and then the tedious allegations of political motivations in those calls.

But the existence of such motivation doesn’t change the fact that eventually we must move to a more ethical response that shows concern for how the public’s money is used.

Such a response would, ideally, go something like this: Accusation or revelation; the institution of immediate investigations from the highest levels; followed by the equally immediate voluntary removal of those at the highest levels to generate confidence in the investigative process; and then what should be the normal course of the law.

But this being Kenya, impunity is so deeply entrenched that it has become a sort of public office entitlement or perk.

This thinking followed the aftermath of the 2007/8 political crisis, where accountability for what happened with the presidential elections was neatly swept under the carpet.

The thinking has been somewhat shaken up by the failure of the Commission of Inquiry into the Post-Elections Violence (CIPEV) to follow the Independent Review Commission’s (IREC) route – waiting for the decision of the pre-trial chamber of the International Criminal Court (ICC).

There are two ways to look at the situation.

We can feel angry at our executive’s and our parliament’s failure to get a grip on the situation and institute a credible national process for criminal justice at all levels, or we can be happy that, at the very least, the unfolding of the CIPEV and ICC processes has clearly shaken up the expectation of impunity as an entitlement and a perk of public office.

But behind all of the public smooth-talking and behind-the-scenes manoeuvring, there is a real sense of shock that this has not simply gone away, petered out in the never-ending stream of public office abuses and insanities.

This is a good thing. But still, we need to be concerned at the alacrity with which the Ministry of Foreign Affairs is pursuing the African Union’s position with respect to granting the African Court of Justice criminal jurisdiction.

Realistically, it will be a long time before the African Court can offer credible criminal justice to the continent.

But politically, a decision that it should can – and most definitely will – be used to complicate any ICC role with respect to the Kenyan situation.

We should also be concerned with the consequences of an ICC take-up, most notably with respect to witness protection.

The proposed amendments to the Witness Protection Act go some way to expanding the scope of protection to more than whistle-blowers but they fail to address the role of the attorney general’s office in determining who is worthy of protection – or how to best ensure impartiality of those of our security agencies in providing such protection within the country.

These two problems (and there are more) make the proposed agency insufficient with respect to handling any witness protection needs that may arise in connection with criminal justice proceedings for Kenya’s post-elections violence.

Accountability, it is true, comes at a cost. But that cost should not be at the expense of the survivors and victims.

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* This article first appeared in The East African.
* L. Muthoni Wanyeki is the executive director of the Kenya Human Rights Commission (KHRC).
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