previously published on http://nairobilawmonthly.com/index.php/2016/12/01/corruption-important-perspectives-we-must-consider/
By Shadrack Muyesu
As long as human want persists and the principles of scarcity, choice and opportunity cost remain true, corruption can only be mitigated, not eradicated. It’s time the debate on corruption moved away from enumerating its instances to concentrating more on finding out its causes. Only then can we find a real solution.
While public intellectualism recommends a change of mind-set, public morality cannot be coerced. The required mind-set is the result of a gradual evolution, which comes about as the historical socio-economic factors influencing a people’s thinking periodically diminish. Similarly, tougher regulations are bound to fail as long as the public remains “intellectually immoral.”
As the post-August 2010 period has demonstrated, a good constitution without a progressive civic-minded population to supervise its implementation is a failure ab initio. One cannot effectively critique corruption without equally critiquing the law, the system of government and the supervening socio economic environment, without asking themselves what influences voter choices and government action (or inaction).
Human beings are by nature selfish. When required to make a choice, they pick the outcome that best guarantees their continued prosperity. The result is either a widely beneficial outcome common in elite states or a system failure synonymous with primitive states. In elite states, the population is predominantly urban with most of the people either business owners or pursuing white-collar careers. As such, most of the choices they make, while selfish, are informed by the well being of long-term business; the principles of competition, demand and supply guarantee that any goodness is spread across the board.
Primitive states are those whose populations are starkly divided across social, cultural and economic lines. They are predominantly rural, with a general population of subsistence farmers. Unlike the former, they tend to respond to outcomes which even if not demonstrably beneficial, guarantee that the rivals (tribes) do not benefit. Such benefits can only be pursued within an intricate ethnic collective, not individually. Poor and without business interests to protect, they favour short-term economic aggrandisement.
Adopting the Constitution of Kenya, 2010, effectively transformed Kenya into liberal democratic state (at least on paper) – which meant the institutionalisation of free market, constitutionalism, the rule of law, unrestricted universal suffrage and the protection of minorities. The new system created an interdependent relationship between government organs, as well as between elected government and the electorate. Among others, the Executive would rely on parliamentary goodwill to pass policy and, on an understanding of the impeachment module, to survive. Yet most importantly, it would also require the electorate’s favour to get and stay elected.
To guarantee constitutionalism and the rule of law, the Constitution divided norms hierarchically as well as set in place an elaborate system of checks and balances. At the top of this system was the electorate. Presidential powers were significantly curtailed – a novel idea yet one which de facto elevated Parliament to a superior status. As some of its most eloquent proponents in Alexis de Tocqueville and Francis Fukuyama have argued, this system could not succeed where, like Kenya, the public remains primitive.
Deep-seated historical stratification has rendered many citizens incapable of effectively and objectively electing and supervising government. When making political and policy choices, they are influenced more by choice factors such as tribe, political party affiliation, religion and bribes more than they are by nationalistic rationale. The same applies to government.
While the concept of “tyranny of numbers” has been severely criticised, it is the natural result of a healthy democracy. The Executive can only be successful when it has the requisite numbers to galvanise support for its policies. In primitive societies, such support can only be gained (and consolidated) through manipulating choice factors.
Though the Constitution (2010) attempted to address these factors, their effects persist. Generally, norms set out in law merely respond to choice factors in a formal sense. They acknowledge the existence of choice factors without addressing themselves on why they manifest. This brings us to a simple conclusion: however progressive a country’s laws may be, identity politics and tribalism will continue to manifest – which phenomena are most prevalent in primitive societies.
Apart from a change in mind-set, a number of solutions have been suggested. Chiefly, citizens have been asked to register and vote in mass if only to elect an alternative government. This position is built on the unproven logic that an alternative government will perform more soundly.
But as long as our democracy persists within a primitive environment, a change in government will hardly translate into a significant, permanent change in fortune – or else Hobbes’ theory on the selfishness of man is rendered untrue. The call for the President to summarily round up and jail all corruption suspects similarly gains traction. Yet it flies off the handle of the rule of law and separation of powers.
On corruption, the new regime has significantly dimmed presidential powers, choosing instead to spread them across a number of other arms and independent bodies. The power to appoint and dismiss is shared between the Presidency and the Legislature; the power to investigate lies with the Ethics and Anti Corruption Commission and the Directorate of Criminal Investigations; the power to prosecute lies with the Directorate of Public Prosecutions, and that to determine culpability lies with the Judiciary – which culpability is assessed on the assessment of evidence, not intuition or public perception. To take over one body’s functions is to defy law even as the malfunction of one of the bodies in the chain corrodes the whole idea of holding suspects accountable.
While the system occasionally malfunctions, a laudable feature of the Constitution is that it anticipates such malfunction and offers ways of addressing it through its checks and balances. Where any of the agencies below the Presidency (bar the Judiciary) act mala fides, they can be realigned through a combination of parliamentary procedure and presidential action. Where the Presidency fails to act, the electorate can always be pacified through invoking the impeachment modules numbered by the Constitution. The Judiciary can always be monitored through a combination of internal and presidential procedures.
To buttress the initial argument regarding parliamentary supremacy, at the centre of the legal framework on corruption lies the Legislature. It is therefore, important that Parliament acts independently and “civic mindedly”. Unfortunately, Parliament has so far been unable to do so – a situation that can be attributed to the deep-lying stratification earlier highlighted, and the inability of the public to properly audit it.
In summary, while a lot can be inferred from the actions of the President, the other duty bearers below him need to take responsibility as well. Corruption is not only an indictment of the Presidency; it also casts responsible institutions and Parliament into negative perspective. Ultimately, it is the citizens who stand to be blamed, as it is they that fail to hold these institutions accountable.
To clamour retributive justice (at the instance of the Presidency) is to sacrifice constitutionalism, the rule of law and separation of powers. While “let’s overlook the Constitution for the greater good” would be a natural response to this thinking, adopting it would see Kenya slide back into the period of anarchy, extrajudicial killings, imperial presidency and arbitrariness she was just emerging from. Not only so, it points towards a malady greater than the Presidency – the government system contemplated by the Constitution.
Does the answer lie in backtracking on liberal democracy (and universal suffrage)? Not at all; a permanent solution means tailoring the current system to something sui generis to our situation. We should restrict universal suffrage, expand the Presidency and separate it from the electorate, vet all political aspirants, thoroughly observe Chapter Six and limit the Senate to independently elected elites (civic minded persons demonstrably least affected by choice factors who are also opinion leaders in their areas of expertise). It is from such a Senate that Kenya should pick her presidents – not directly from the electorate.