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Ombo D. Malumbe

CORRUPTION AND SOCIAL ECONOMIC

RIGHTS IN KENYA

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Published by: Kenya Journal of Law and Justice Copyrights © KJLJ Year of Publication August 2015

Ombo D. Malumbe*

* LLB (Hons) Mount Kenya University School of Law; Chairperson Kenya Journal of Law and Justice; 2nd Vice President International Youth Action Against Terrorism.

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Table of Contents 1.0 CHAPTER 1 ..................................................................................................................... 1

1.1 Background of the Study ............................................................................................ 1

1.1.1 Introduction ............................................................................................................. 1

1.1.2. Kenya ........................................................................................................................ 3

1.2 Statement of the Problem .......................................................................................... 4

1.3 Objectives of the research .......................................................................................... 4

1.4 Research Questions ..................................................................................................... 5

1.5 Justification of the study ............................................................................................. 5

1.6 Literature Review ......................................................................................................... 6

1.7 Limitation to the study................................................................................................ 7

1.8 Research methodology ................................................................................................ 7

2.0 CHAPTER 2 ..................................................................................................................... 8

2.1 Introduction.................................................................................................................. 8

2.2 The History of Corruption in Kenya ....................................................................... 9

2.3 Cases and Scandals of Corruption in Kenya .........................................................15

2.4 Definition of Social Economic Rights ...................................................................17

3.0 CHAPTER 3 ...................................................................................................................21

3.1 Introduction................................................................................................................21

3.2 Constitution of Kenya ..............................................................................................22

3.3 Leadership and Integrity Act of Kenya .................................................................30

3.4 Other Statutes ............................................................................................................36

3.5 Case Law .....................................................................................................................37

4.0 CHAPTER 4 ...................................................................................................................39

4.1 Introduction................................................................................................................39

4.2 The African Union Convention on Preventing and Combating Corruption ..41

4.3 United Nations Convention Against Corruption .................................................44

5.0 CHAPTER 5 ...................................................................................................................47

5.1 Conclusion ..................................................................................................................47

5.2 Recommendations .....................................................................................................47

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1.0 CHAPTER 1 “If you serve for a whole term, you have refused to fight corruption”

- Professor Patrick Loch Otieno Lumumba

1.1 Background of the Study

Kenya is one of the countries located in the African Continent. Just like the

majority of other States in Africa, Kenya is regarded as one of the States suffering

from corruption.2 However, the citizenry are too ignorant to understand what

corruption is all about. Majority of the citizens do presume that corruption is only

about bribing a person in order to attain certain service or goods and/or help.

Corruption is more than what the layperson may presume. Hence, this research

paper is to enlighten the citizenry and any person who is an enthusiast of the

division of corruption and understanding the ramifications of corruption. As

provided herein above (the title page) corruption is delved into as to make one

understand why and how it affects Human Rights and more specifically social

economic rights.

Human Rights in this sense is Social Economic Rights. Herein under, the general

history of Corruption is delved into prior to discussing any other imperative

matter.

1.1.1 Introduction

Corruption as per the Black’s Law Dictionary:

Depravity, perversion, or taint; an impairment of integrity, virtue, or moral

principle; esp., the impairment of a public official's duties by bribery.

The word ‘corruption’ indicates impurity or debasement and when found

in the criminal law it means depravity or gross impropriety.

2 Business Corruption <http://www.business-anti-corruption.com/country-profiles/sub-saharan-africa/kenya/business-corruption-in-kenya.aspx> (Accessed on the 8th Day of February 2015)

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The act of doing something with an intent to give some advantage

inconsistent with official duty and the rights of others; a fiduciary's or

official's use of a station or office to procure some benefit either personally

or for someone else, contrary to the rights of others.3

For purposes of initiating the discussion, it will be prudent to cling on the

aforementioned definitions, irrespective of the very fact that the same is not

conclusive in nature, but they sprout what corruption is all about. Therefore, the

same will be pegged to Human Rights. Among the three excerpts elicited from the

Dictionary, the third definition of corruption is quite relative to how Human Rights

can be impaired.

It will be prudent to utilize hypothetical examples so that one can understand how

corruption does impair Human Rights.

a. On bribery in the event a Police officer receives a bribe of whatsoever

nature so that he or she can lessen the rules or policy. For instance, such

an act happens in the northern part of Kenya, thereon, some terrorists

manage to transport explosives that will later on be utilized to explode

buildings and/or market places or areas where there is a huge crowd. Such

acts by terrorist will lead to death of many people or injuries and

destruction of other imperative sectors in the society. The inactions and/or

actions of the Police Officer would have majorly regarded to have led to

impairment of Human Rights especially Civil Political Rights, but the same

activities do impair Social Economic Rights: this will be expounded later on.

b. In the event a Public Officer employs a relative, he or she being

incompetent or lacks the required credentials, thereon, the persons

happens to cause death of a person and or make some loose his abilities

(walking, seeing, listening, talking, sense of touch et al.). This will be abuse

of Humans Rights: Social Economic Rights; Thus, one can access the basic

3 Black’s Law Dictionary 8th Ed

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socio-economic rights, however, the standards are poor to an extent that

people do demise due to that oddity.

There are many examples that can be utilized; however, it is presumed that with

the two examples, one can deduce the concept behind this research paper.

1.1.2. Kenya

Not so long ago the President of Zimbabwe Mr. Robert Mugabe asserted the

following as warning to his General, that Zimbabwe should not be "like Nigeria and

Kenya, where you have to reach into your pocket to get anything done,"4 the sentiment was

highly reverted to by the citizens of the aforementioned countries through Social

Media.

Corruption in this sense is not settled to mean Grand Corruption only; this is

because, the kind of corruption that can be uttered as trivial can be give birth to

precarious effects. The famous corruption cases are: The Goldenberg,5 The Czech

Fighter Jets, Passport Equipment System, banking fraud scam worth $1.5 billion,

Grand Regency Scandal, Aglo-Leasing et al.6

The aforementioned cases involve the loss of monies and/or directing monies for

purposes that seems to be below the belt. Therefore, the expected outcome is that,

most citizens will suffer in one way or another due to these activities.

It will be prudent to acknowledge that the application of the fundamental human

rights is not only vertical but also horizontal in nature; thus, a citizen can bring an

action against a fellow citizens, organization, or company et al.7

4 FP ‘Everyone is Corrupt in Kenya, Even Grandmother’ <http://foreignpolicy.com/2014/05/06/everyone-is-corrupt-in-kenya-even-grandmothers/> (Accessed on the 8th Day of February 2015) 5 Charges in Kenya Corruption Scandal <http://www.theguardian.com/world/2006/mar/16/kenya.jeevanvasagar> (Accessed on the 8th Day of February 2015) 6 Shocking Corruption Scandals in Kenya Since 2000 To Present Which Have Never Been Resolved <http://whereiskenya.com/part-2-corruption-scandals-kenya-since-2000-present-day/> (Accessed on the 8th Day of February 2015) 7 Enforcement of The Bill of Rights – Art. 22 (1) & (2) of the Constitution of Kenya, 2010

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1.2 Statement of the Problem

There are many factors that portray why Africa and specifically Kenya is not

developing despite having attained independence half a century ago. This can be

attributed to the poor leadership, the leverage the leaders have towards the

citizenry, the laxity of citizenry to accommodate independent views, the inability

of citizens to detach from negative ethnicity, the element of impunity in various

leaders and other persons who feel are the sole reason the stem of a tree is still

functioning as it supposed to.

When one incorporates the aforementioned factors, it shows how corruption

invites itself from various ventilations afforded to it (corruption) by our poorly

structured society. However, as corruption takes it course as a general societal norm,

every person thinks it is ok. Not because they are not arrested but because most

people take part in it: thus, from the person having low social status to those with

high profiled social status.

It can be asserted that it is due to ignorance. Ignorance is deep in our hearts and

minds; hence, we are blinded like the power of love. However, just like a Religious

Leader who does not tire until his or her demise, it will take us the enlightened to

address the same core issues to the latter without giving up at all. For that reason,

this paper is to enlighten citizens on how corruption affects human rights directly

and indirectly; hence, they should stop taking part in it.

1.3 Objectives of the research

The research paper is to fulfill the mental health of the majority of persons who

will set their eyes on this document. Herein, there will be rich content on what

actually entails corruption and why citizenry and other persons should not make

corruption sufferable.

However, one cannot deviate from a certain malnourished activity unless they

understand the basics, hence, this research paper will interlink corruption and the

two Generations of Rights elicited from the Universal Declaration of Human

Rights. However, the second (2nd) Generation of Rights will be given much weight.

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The two Generation of Rights are currently regarded as those which are

interrelated, hence, one cannot be looked into and disregarding the other.8

Hence, by persons understanding the basics of what can make a society develop

and that which can make it stagnant or destroyed, it will help us come up with new

laws in action that are sound and complement the law in form rather than mocking

the law in form.

1.4 Research Questions

a) What is corruption to the normal citizen and why is corruption highly

appreciated in the Developing Countries like Kenya.

b) What is corruption as per the legal instruments of Kenya; and how

are corruption cases handled?

c) What is corruption as per the legal instruments of African Union?

d) What does the International Legal instruments provide about

Corruption?

e) How can the issue of corruption be sensitized to an extent that a

majority of citizenry will avoid the same?

1.5 Justification of the study

Many persons have addressed the issue of corruption, be it within Kenya, East

Africa, Africa and other Nations. However, the same writings have not

concentrated much on the evils of corruption towards Human Life.

In the contemporary society, there are many activities that when effected through

the means of corruption, the activities lead to gross violation of human rights. As

it has been provided herein above: corruption can gravely clog the effecting and

accessing of socio-economic rights.

Therefore, this research paper will address the Kenyan and African legal academic

text and relate on how deep corruption affects our lives. In doing that, it will also

help persons understand how wide corruption is as per the various writings: thus,

8 Limburg Principles; See also, Maastricht Guidelines; See also, The Banjul Charter

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be it municipal, sub-regional, regional, international legal instruments and writings

of eminent authors. Therefore, this is paper is peculiar, because it is not in place

to mention the ‘great’ corruption cases and scandals ever known by mankind, but

it is to portray that irrespective of those ‘great’ cases and/or scandals of corruption

any element of corruption is a grave action or inaction that will violate Human

Rights.

1.6 Literature Review

Corruption is not a peculiar division neither a new division in Kenya. It is

something that has been extant since independence. Thus, if one has been keeping

close tabs, he or she will not that corruption cases in Kenya have been like an early

morning fog – that which disappears when the sun shimmers, and everyone

surprisingly forgets about the same just like nothing had happened.

There are various writings that have depicted corruption in Kenya; for instance,

Michael Wrong9 depicts the change of politics in 2002 when KANU10 was

appreciating its political sunset as NARC11 was enjoying the political sunrise. The

corruption in this case was that based on tribalism.

John Githongo – he is a man regarded as among the few who were ready to fight

corruption but his ‘naïveness’ almost made him dive in a pool full of ‘machete’ and

‘Somali swords’. As he had to run for his dear life.12

John Mutonyi: addresses the question of whether Kenya is on the right track as it

tries to fight corruption.13 Therefore, it is clear that most authors have proffered

books that have rich knowledge regards to fighting corruption but not the deep

root ramifications of the same.

9 Michela W It's Our Turn to Eat: The Story of a Kenyan Whistle-Blower () 10 Kenya African National Union 11 National Alliance of Rainbow Coalition 12 The Economist <http://www.economist.com/node/13176864> (Accessed on the 10th Day of February 2015) 13 “Fighting Corruption: Is Kenya on the Right Track” (2002)

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The Political Economy of Corruption in Kenya14 – This book addresses the in-

depth of corruption in Kenya. It can be attributed to some sort of religion that

persons seem to respect and adore with all their heart and soul. However, Prof.

Anyang’ Nyong’o did address the issue of MDGs15, which are quite close to what

this paper will discuss.16

Peter Annasi tackles the division of corruption with a peculiar view. In the sense

that, he recommends that corruption should be part of the syllabus; thus, from

primary level to secondary.17 This shows how many persons hope Kenya will curb

the issue of corruption so as to make the life of many citizens more better.

It is noteworthy that most persons are concerned about corruption and its

ramification and how it is derailing developments in Kenya and Africa as a whole.

However, the discussion herein under is majored on showing readers that

corruption gravely violates human rights.

1.7 Limitation to the study

The limitation of the study is that the matter is of grave nature, and when

personally I could find it much more prudent to execute personal interviews with

persons of interest, the same is hard because of the following reasons: the persons

are hardly available and they still value their ‘reputation’ within the eyes of various

persons in the society.

1.8 Research methodology

I will appreciate both doctrinal and non-doctrinal methodologies of research.

Owing to the serious nature of the division, more reliance will be made towards

the reports that are made by the Government, Private individuals or Corporations,

and other persons out of the Kenyan Jurisdiction.

14 Hon. Prof. Peter Anyang' Nyong'o 15 Millennium Development Goals 16 As it is known, MDGs touch on divisions such as Mortality Rate; Education et al., if one visits Article 43 of the Constitution of Kenya, he or she will note that MDGs and the Article 43 do relate. 17 Annasi P. Corruption in Africa: The Kenyan Experience (Trafford Publishing 2005)

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2.0 CHAPTER 2

2.1 Introduction

By keeping close tabs with the previous Chapter of this research paper, it should

be borne in within one’s mind that the grave matter of concern is how corruption

does affect Social Economic Rights. Herein, the paper will expound on what

corruption is, in terms of history, the major scandals, why most Kenyans (if not

all) are somewhat appreciating corruption religiously. Thereafter, the definition of

social economic rights will be given so as to give the reader an opportunity to

understand what social economic rights are and what is the nexus between social

economic rights and corruption.

Irrespective of the aforementioned, it should be noted that Kenya is one State that

is challenged by curbing tribalism and/or nepotism and not precluding cronyism

too. These elements among many others are also religiously protected by the

Kenyan citizenry;18 some persons who happen to hold contrary opinion to that,

are ‘swallowed’ by the system: as per the words of Roscoe Pound this is when law

in action defeats the law in form.

Precisely, as the paper advances, it will be noted that if Kenyans as whole; thus,

the bourgeoisie, proletariat, the elite and those who have not attained the substantive

amount of education and those who have attained the same education but have

wrapped their ill activities to the ideology of Africanism or being an African

18 Corruption on The Agenda <http://www.cisu.dk/Default.aspx?ID=23469>

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Conservative could have suffered if the law on corruption was or is to be applied on

their various action and inaction.

2.2 The History of Corruption in Kenya Definition of Corruption

Prior to appreciating the rich history of this beautiful country called Kenya vis-à-vis

corruption and how it has tainted its image, it will be prudent to have a simple and

general definition of what corruption is or rather entail. For purposes of this

Chapter, a legal oriented definition of corruption will not be adopted as the same

is set to be discussed in Chapter Three (3) of this research paper.

Corruption Watch:

Corruption is the abuse of public resources to enrich or give unfair

advantage to individuals, their family or their friends (own bold).19

Corruptie:

Corruption is the misuse of public power (by elected politician or appointed

civil servant) for private gain.20

Corruption on The Agenda:

19 Corruption Watch <http://www.corruptionwatch.org.za/content/what-corruption> (Accessed on the 22nd Day of February, 2015) 20 Corruptie “What Is Corruption?” <http://www.corruptie.org/en/corruption/what-is-corruption/> ; See also, < http://www1.worldbank.org/publicsector/anticorrupt/corruptn/cor02.htm> (Accessed on the 22nd Day of February, 2015)

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[It] is a broad term covering a wide range of misuse of entrusted funds

and power for private gain: Theft, fraud, nepotism, abuse of power etc. A

corrupt act is often – but not necessarily – illegal. In handling

corruption, you will often face a gray zones and dilemmas (own

bold).21

Swedish International Development Cooperation Agency:

[This is] when institutions, organisations, companies or individuals profit

inappropriately from their position in the operations and thereby cause

damage or loss. This includes giving and receiving bribes, extortion,

favouritism and nepotism, embezzlement, fraud, conflict of interest, and

illegal monetary contributions to political parties.22

There are tens of definition that try to exhaustively and/or precisely define what

corruption is, however, the aforementioned definitions seem to incorporate at least

a peculiar element or show consistency; hence, portraying the image of them being

relevant to this matter.

At least in the three out of the four definitions afforded, there is mention or terms

relating to mean “Public Office, Officer(s), or power…” to be utilized for private

gains.

21 Corruption on The Agenda <http://www.cisu.dk/Default.aspx?ID=23469> (Accessed on the 22nd Day of February 2015) 22 Corruption on The Agenda <http://www.cisu.dk/Default.aspx?ID=23469> (Accessed on the 22nd Day of February 2015)

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As provided by the definition number three, one will note a peculiar term –

corruption is the misuse of entrusted power for private gain. Well, the term private gain is

elusive herein or rather it a wide term that incorporates more than what an ordinary

person will imagine or think about: For instance, in the event Members of the

National Assembly and/or Senate come with laws that are contrary to the hopes

and wishes of the Constitution of Kenya, thereon, the President of Kenya and/or

any person acting in the Presidents capacity assents to that given Bill then they are

deemed to be corrupt. This is as per the definition afforded by Corruption of The

Agenda.

In general and the most simplistic terms, corruption is an action or inaction by a

person acting as a public offer23 that defeats the principles and values24 of the

Constitution of Kenya. It is noted that through the definition penned, it

incorporates the term “Public” unlike the one utilized by Swedish International

Development Cooperation Agency that lacks a term that directs that corruption is only

committed by Public Persons, this is because, in this matter, the corruption

committed by the Government or through its various official irrespective of their

rank in the society is the one being delved into.

History of Corruption in Kenya

It is clear that corruption is not something of the twenty first (21st) Century; rather,

corruption has been exhibited in Kenya even before the attaining of

23 “Interpretation” Art 260 of The CoK 2010 24 “National Value and Principles of Governance” Art 10 of the CoK 2010

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independence.25 This means that the system of corruption is healthy within the

fabrics of the Kenyan society. Corruption is more sufferable than anything else is,

moreso when it relates to matters of attaining service from the Government.

Six years after half a century of the twentieth (20th) century, there was the

introduction of the first Kenyan lex specialis that addressed matters of Corruption.

The statutory provision did not establish a complex organisations or institutions that

dealt with corruption; surprisingly, it was left under the hands of the police officers

to enforce the same.26

The Government of Kenya quashed the Anti-Corruption Squad of 1993 that

executed the Prevention of Corruption Act (Cap. 65) in the year 1995. The same

Squad had not established a case or executed one major case by the time it was

disbanded.27

“The first Kenya Anti-Corruption Authority (KACA) was set up in 1997”28 this

was an effort to establish substantive structures that could deal with corruption.

25 U4 Expert Answer (Transparency International; The Global Coalition Against Corruption) <www.u4.com> (Accessed on the 22nd Day of February 2015): After independence, founding President Jomo Kenyatta (1963/1978) and his successor Daniel Arap Moi (1978/2002) established and sustained an increasingly corrupt one-party authoritarian rule under the Kenya African National Union (KANU). 26 Ethics and Anti-Corruption Commission: Tukomeshe Ufisadi, Tujenge Kenya <http://www.eacc.go.ke/default.asp?pageid=2> (Accessed on the 22nd Day of February 2015) 27 Ethics and Anti-Corruption Commission: Tukomeshe Ufisadi, Tujenge Kenya (Supra) 28 War on Corruption <http://republicofkenya.org/reform/war-on-corruption/> (Accessed on the 22nd Day of February 2015)

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However, the same did not last, due to the conflicting of duties as the then

Attorney General and the Commissioner of police asserted.29

U4:

A report by international risk consultants Kroll commissioned by the

government to investigate claims of corruption carried out by Mr. Moi’s

regime and delivered in April 2004 alleges that more than £1 billion of

government money was stolen (own bold) during his 24-year rule and

details assets still allegedly owned by the Moi family in 28 countries (The

Independent, 2007).30

May be for lack of a suitable term is why the term stolen was utilized instead of lost

monies through corrupt means. As it is well known that with such a regime

domesticating one tribe in the throne, it meant that most favours were or

‘blessings’ were showered towards that given ethnicity.31 Under this context, it is

Former President of Kenya: Mr. Moi’s lineage in terms of: cronies, relatives

(nepotism) et al.

The corruption in Kenya is essentially inspired, nourished through the highly

fertilized land known as tribalism. Unfortunately, irrespective of the ramifications

of corruption, the leaders are impetus towards their descendants.

29 War on Corruption (Supra) 30 U4 <http://www.u4.no/publications/kenya-overview-of-corruption-and-anti-corruption/downloadasset/3114> 31 The Economist (Supra)

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In the year 2002 when the former President of Kenya Mr. Daniel Arap Moi was

passing tools of power to the former President Mwai Kibaki, it was stated by

various leaders from Mr. Mwai Kibaki’s wing that “It is our time to eat.”32 This is how

deep corruption is in Kenya, it is like a cloth that one has to put on – It is the best

outfit embraced by most leaders.

Corruption might be based on the it is our time concept but some zones are denied

the opportunity to enjoy it is our time or when it is our time, other regions of the State

will remain looking at the government like malnourished children and adults living

in the streets hoping for a penny so as to place some meal on the ‘table’. However,

due to the fact that the Kenyans are entertaining this matter, can it be regarded as

a misplaced concept of Social Justice.33

Social Justice is:

[P]romoting a just society by challenging injustice and valuing diversity. It

exists when all people share a common humanity and therefore have a right

to equitable treatment, support for their human rights, and a fair allocation

of community resources. In conditions of social justice, people are not

discriminated against, nor their welfare and well-being constrained or

prejudiced on the basis of gender, sexuality, religion, political affiliations,

age, race, belief, disability, location, social class, socioeconomic

32 Wrong, Michela. It's Our Turn to Eat. London: Fourth Estate, 2010. 33 The Preamble of The Kenyan Constitution, provides that “RECOGNISING the aspirations of all Kenyans for a [G]overnment based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law:”

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circumstances, or other characteristic of background or group

membership.34

The leaders in Kenya and their cronies happen to bury their heads to what Social

Justice ought to be. Rather they consider their ‘own people’.

2.3 Cases and Scandals of Corruption in Kenya

There are numerous cases of corruption in Kenya; thus, be it minor or major. The

paper is not in place to scrutinize the truth and lack of evidence to approve the

allegations, however, the paper is to raise the eyebrow of the reader so as to

understand the amount of monies being lost by the Government of Kenya.

Corruption cases ever heard, raised and/or discussed in Kenya are as follows:35

a. Turkwell Hydroelectric Power Station36 - The contract signed was

for $250 million (£157 million), some $102 million (£64 million)

more than an original estimate, and $60 million (£37 million) more

than was judged economically feasible by the French consulting

firm, Sogreah;37

b. Goldenberg Scandal - According to the Goldenberg Report

conclusion, the “minimum of what the country lost through the

34 What Is Social Justice? <http://gjs.appstate.edu/social-justice-and-human-rights/what-social-justice> (Accessed on the 28th Day of February, 2015) 35 This paper does not intend to implicate any person whatsoever of the heinous acts or omissions yet to be mention. Rather, the information is elicited from other secondary sources. 36 <http://www.thecornerhouse.org.uk/pdf/document/correcgd.pdf> (Accessed on the 28th Day of February 2015) 37 Ibid n19

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Goldenberg Scam” totaled KES. 37,463,616,294 which, at the time

of the report (Oct 2005), exchanged at (0.0135226504 to USD)

making the conservative total estimate $506,607,386;38

c. Kshs. 360 Million Helicopter Service Contract offered to South

Africa;39

d. The Nexus – Secret Military Communication Centre;40

e. The transfer of GBP 1 Billion;41

f. The Grand Regency42 - The government sold the Grand Regency

Hotel, a five-star property in downtown Nairobi, to a group of

Libyan investors for US$45 million (Dh165m), according to Amos

Kimunya, the finance minister;43

g. Imported Maize44 et al.

The aforementioned cases are among the many that have taken place in Kenya

since independence to date.

38 <http://star.worldbank.org/corruption-cases/node/18610> (Accessed on the 28th Day of February 2015) 39 <http://kenyastockholm.com/2007/03/21/purchase-of-jordanian-fighter-jets-stinks-of-high-corruption/> (Accessed on the 28th Day of February 2015) 40 <http://allafrica.com/stories/200602090740.html> (Accessed on the 28th Day of February 2015) 41 <https://wikileaks.org/wiki/The_looting_of_Kenya_under_President_Moi> (Accessed on the 28th Day of February 2015) 42 <http://www.thenational.ae/news/world/africa/hotel-scandal-shakes-kenyan-politics> (Accessed on the 28th Day of February 2015) 43 Ibid n25 44 <http://www.africog.org/reports/Maize%20Report.pdf> (Accessed on the 28th Day of February 2015)

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Without delving into how much was lost, it is clear that if the monies that have

been wasted for purposes of private gains and/or an entity favour were injected in

the right project(s) and/or activities, it could make Kenya be at a different

standing.

2.4 Definition of Social Economic Rights

It should be noted that social economic or economic and social and/or socio-

economic rights are terms that are used interchangeably while addressing the same

matter Nationally and Internationally. The Kenyan Constitution does have a

provision of the same nature,45 it is also vivid that Kenya has domesticated various

Regional and International legal instruments that address on matters of socio-

economic rights.46

Socio-economic rights are better explained than defined, thus, for Art. 43 of the

CoK, 2010 provides that:

Under the umbrella of Economic and Social Rights the people shall have the

right –

a. To the highest attainable standards of health, which includes the

right to health care services, including reproductive health care;

b. To accessible and adequate housing, and to reasonable standards

of sanitation;

45 Art 43 of the Constitution of Kenya, 2010 46 This is by the dictations of Art 2 (5) & (6) of The CoK, 2010

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c. To be free from hunger, and have adequate food of acceptable

quality;

d. To clean and safe water in adequate quantities;

e. To social security; and

f. To education.

2. A person shall not be denied emergency medical treatment.

3. The State shall provide appropriate social security to persons who are

unable to support themselves and their dependants.47

These rights are absolute but are not immediate. Thus, they cannot be attained in

totality in one day or even in fortnight; therefore, the CoK provides that, the

fundamental human rights under Art. 43 will be realized in a progressive manner.48

These terms are also reflected directly and/or indirectly in various Regional and

International legal instruments such as: The Universal Declaration of Human Rights

(herein after it is referred as UDHR),49 these rights are regarded as Second Generation

of Rights. The same rights were expounded on under The International Covenant

on Economic and Social Cultural Rights (herein after the ICESCR),50 The Banjul

Charter51 does afford the same diction.

47 Ibid n28 48 Art 21 (2) of the CoK 49 Art 22, 25 & 26 50 Art 10, 11, 12, 13 & 14 51 African Charter on Human and Peoples Rights’

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The striking element is that the socio-economic rights or the Second Generation of rights

are to be attained depending with resources of a State. However, this derogation

in innuendo is not in totality; thus, the Limburg and Maastricht Principles provides

that irrespective of the circumstances in which a State is in, the issue of Social

Economic rights should be realized no matter how the resources of the State is

low or scarce.52

As it has been noted that Socio-Economic Rights can be limited, the same has to meet

the five-pact test provided for under various Regional and International

documents and other writings of eminent persons. The five-pact test is also traced

into the Kenyan Constitution, 2010.53

The aforementioned test should meet the National Values and Principles of

Governance.54 As it can be noted, Corruption is not one of the National values and

Principles of Governance. Thus, the Governments that condones corruption, is

limiting the attainment of socio-economic rights by illegal means. This sentiment

will instill the actual meaning if one reflects the phraseology provided for under

Chapter 2 part 2.3. The cases or scandals provided therein are not the only matters

relating to corruption that have taken place, but there are more than ample of

which lead to loss of huge amount of wonga that could be utilized for attaining

socio-economic rights, but due to the greed of the public officers and their cronies,

52 Mathew Okwanda v Minister of Health and Medical Services & 3 others [2012] HC Nrb eKLR 53 Art 24 (1) (a) – (e) 54 Art 10 of the CoK, 2010

20

Kenya is slagging behind unlike other States that started ‘living’ and/or ‘crawling’

with it.55

55 Singapore

21

3.0 CHAPTER 3

3.1 Introduction

In a society, there exists a social disorder. The social disorders are dealt with in

different ways for purposes of deterrence by weighing of the severity. For instance,

there are countries that prefer hanging56 while other opt for life imprisonment.

Thus, each State differs from how matters of law are dealt with.

Kenya having suffered from activities of corruption, the people of Kenya through

their representatives have managed to establish various laws and institutions to

deal with the issue of corruption. For instance, there is the Constitution of Kenya;

The Anti-Corruption and Economic Crimes Act; Leadership and Integrity Act;

Ethics and Anti-Corruption Act; The Proceeds Of Crime And Anti-Money

Laundering Act; and the Evidence Act. However, herein the Evidence Act will not

be discussed as it will divert the topic of discussion as provided herein above in

this document. It should be noted that not all the legal instruments mentioned

herein will be delved into as the division of Social Economic and Cultural Rights is

quite specific on what law if flaunted there will be violation of the aforementioned

Human Rights.

This paper does not delve into the surcharge or punishments a persons who

violates the law through corrupt means, rather, it focuses on how corruption

violates the Second Generation of Human Rights.

56 <http://www.bbc.com/news/world-asia-pacific-14197485> (Accessed on the 21st Day of May 2015)

22

It is also clear that irrespective of the numerous legal instruments addressing issues

relating to corruption, Kenya still suffers from corruption.57

3.2 Constitution of Kenya

Generally, the Constitution of Kenya has provided a wide segment that addresses

issues relating to corruption or what can be termed as corrupt means of gaining

property or exercising duties.58 Herein under, the paper will discuss specific areas

of Chapter Six of The Constitution of Kenya. The Articles that will be mentioned

herein after are regarded as the most reasonable provisions that relate to the topic

of discussion herein.

Prior appreciating the legal text in Chapter Six, the Constitution also reminds its

citizenry and the leaders that at any point when one is executing his or her

mandate, he or she should observe The National values and Principles of

Governance.59

The National Values and Principles of Governance are as follows:

(1) The national values and principles of governance in this Article bind

all State organs, State officers, public officers (own emphasis) and all

persons whenever any of them (own emphasis) –

57 Transparency International Kenya <http://www.tikenya.org/index.php/press-releases/225-kenya-s-anti-corruption-laws-need-to-be-amended-to-strengthen-the-fight-against-corruption> (Accessed on 26th Day of May 2015) 58 Chapter Six of The Constitution 59 Chapter Two of The Constitution

23

(a) applies or interprets this Constitution;

(b) enacts, applies or interprets any law; or

(c) makes or implements public policy decisions.

(2) The national values and principles of governance include –

(a) patriotism, national unity, sharing and devolution of power, the rule of

law, democracy and participation of the people;

(b) human dignity, equity, social justice, inclusiveness, equality, human

rights, non-discrimination and protection of the marginalised;

(c) good governance, integrity60 (own emphasis), transparency and

accountability; and (d) sustainable development.61

Therefore, it is clear that when the drafting of the Constitution of Kenya were

drafting this legal document, now considered as the Supreme Law of The Land or

Grundnorm of Kenya. The peculiar matter is that the constitution does not

necessarily point it ‘finger’ towards public officials alone but also the general public

and foreigners. In appreciating the term utilized under Art. 10 (1) it is clear that

the term “…all persons whenever any of them…” is not limited to any class of persons

60 The writing of Art. 10 of The CoK is expounded under Chapter Six of The CoK. 61 Art. 10 of The CoK

24

unless it is a child of twelve (12) years and below62 whom they are exempted from

criminal liability as per the Penal Code of Kenya.63

For purposes of clarity, a person who is a State Officer and Public Officer is

defined in the Constitution under Article 260. However, it will be unnecessary to

touch on the definitions proffered by the Constitution concerning the terms

provided herein above because the Constitution stipulates that it will apply to

everyone vis-à-vis The National values and Principles of Governance.

Chapter Six of The CoK entails provisions about Leadership and Integrity. As

aforementioned herein above, this Chapter of the Constitution does reflect the

wording of Article 10 (2) (c) of The Constitution where-by it discusses about

Integrity.

Under Chapter Six, the areas of concern are as follows:

Article 73 (2)

Article 75 (1)

Article 7964

Article 73 (2) of The Constitution of Kenya

(2) The guiding principles of leadership and integrity include –

62 Immature Age: Below 8 years cannot be criminally liable; between 9 and 12 years are not criminally liable but it is rebuttable. 63 Section 14 of The Penal Code. 64 Constitution of Kenya

25

(a) Selection on the basis of personal integrity, competence and suitability,

or election in free and fair elections;

Integrity is defined as the quality of being honest and having strong moral principles.65

Definitely, with such values one is expected to meet the provisions of Article 10.66

Theoretically, it is clear that the State Officers in Kenya meet the aforementioned

standard. However, going by the reports being produced in Kenya then the

writings of the Law are being ridiculed day in day out.67

(b) Objectivity and impartiality in decision-making, and in ensuring that

decisions are not influenced by nepotism, favouritism, other improper

motives or corrupt practices;

(c) Selfless service based solely on the public interest, demonstrated by –

(i) Honesty in the execution of public duties; and

(ii) The declaration of any personal interest that may conflict with public

duties;

(d) Accountability to the public for decisions and actions; and

(e) Discipline and commitment in service to the people.

In Kenya, the following subjects are elusive as much as they are vividly provided

for in the Grundnorm of Kenya. The terms are:

65 Oxford Advanced Learners Dictionary 8th Edition 66 Constitution of Kenya 67 Transparency International Kenya

26

Objectivity and impartiality in decision making

Selfless service based solely on the public interest (own emphasis)

Accountability

Discipline and commitment in service to the people

The term Objectivity and Impartiality in decision-making is quite elusive in

nature once the term Public Interest is invited into the topic. This is because the

term Public Interest does not necessarily refer to the whole population of a State

based on the Principles under the Montevideo Declaration68. However, the term public

interest can be defined in different ways, as it will be noted when cases of Public

Interest are taken to Court.

Public Interest can be in relation to various classes of people.69 This means that

they can be businesspersons; a minority community; the Gender Rule Principle;

teachers at a certain level et al. hence, the duties might sound imprudent but might

have a sense of legal touch in it. However, this is not the case in Kenya as at no

point has this term public interest been invoked by advocates of the persons

accused of committing economic crimes or indulged into Corruption.

Justification of Public Interest as provided herein above calls for the help of the

court in some cases. As it can be noted in The Hermanus Philipus Steyn Case the

defining the term Public Interest is quite easy; however, when appreciating some

68 Art. 1 69 Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone [2012] Supreme Court of Kenya App. No. 4

27

type of facts when defining the term makes it hard for one to come up with a

persuasive definition of how the law and the facts intertwine.70 Therefore, it is

more prudent to let the court or a cohort of reasonable advocates to deliberate on

the same matter as compared to an individual who lacks that knowledge of the

law.

In doing so, one will be appreciating the National Values and Principles of

Governance of Kenya.71 That will also be in line with what can be termed as

Accountability72.

Accountability is when one is capable to being responsible for [his or her] decision or

actions and expected to explain when asked.73 Accountable is responsible; answerable.74

This connotes that Accountability will be the first stage of one trying to exonerate

him or herself from liability. However, not all forms of accountability will suffice as

the matter is to be deliberated upon by the Judicial Organisations or Anti-

Corruption Commission of Kenya.

Article 75 (1) of The Constitution of Kenya

(1) A State officer shall behave, whether in public and official life, in

private life, or in association with other persons, in a manner that

avoids (own emphasis) –

70 This appreciates the Maxim of Equity: the law comes from the facts. 71 Art. 10 of The CoK 72 Art. 73 (2) (d) of The CoK 73 Oxford Advanced Learner’s Dictionary 8th Ed 74 Black’s Law Dictionary 8th Ed

28

(a) Any conflict between personal interests and public or official

duties;

(b) Compromising any public or official interest in favour of a personal

interest; or

(c) Demeaning the office the officer holds.

Under this Article of The Constitution of Kenya provides, it is more specific that

the actions and/or inactions of a State Officer should reflect the National Values

and Principles of Governance75 by avoiding to create whatsoever conflict between personal

interest interests and public or official duties.76 Unlike Article 10 of The CoK that seems

to apply its arm across the whole population in Kenya, Article 75 (1) is more

inclined towards the State Officers.

Owing to the diction utilized in this contest, it is clear that if a State Officer does

take part in any activity that is off tangent with the provision of the Grundnorm and

other Lex Specialis he or she is likely to suffer the ramifications of his or her actions.

Under Chapter One and Two of this discussion paper, one will notice the actions

that if are taken by the State Officers and are contrary to the law will lead to

dangerous ramifications that can lead to violation of Social Economic and Cultural

Rights of the public.

United Nation Development Programme:

75 Art. 10 of The CoK 76 Art. 75 (1) (a) of The CoK

29

The negative impact of corruption on development is no longer

questioned. Evidence from across the globe confirms that corruption

impacts the poor disproportionately. Corruption hinders economic

development, reduces social services, and diverts investments in

infrastructure, institutions and social services (own emphasis).

Moreover, it fosters an anti-democratic environment characterized by

uncertainty, unpredictability and declining moral values and disrespect for

constitutional institutions and authority. It also undermines efforts to

achieve the MDGs (own emphasis). Corruption therefore reflects a

democracy, human rights and governance deficit that negatively impacts

poverty and human security.77

UNDP being one of the reputable and persuasive authorities under the cohort of

United Nation, it is worth to appreciate its report on the issue of Corruption as it

seconds the birth of this discussion paper as it states that corruption does

undermine Social Economic and Cultural Rights of a given State; not forgetting to

mention it also delays the achievement MDGs.

Article 79 of The Constitution of Kenya

Under the Constitution of Kenya, the Parliament is given the authority to come

up with a Lex Specialis that expounds on the provisions of Chapter Six of The

77 UNDP Practice Note: Anti-Corruption (February 2003)

30

Constitution of Kenya. The Parliament of Kenya did heed to the provisions of

The CoK and came up with Leadership and Integrity Act 2012.

3.3 Leadership and Integrity Act of Kenya78

As mentioned under section 3.2 of this Chapter, it is vivid that the aforementioned

Article is a replication of Chapter Six of The CoK; however, in this case it

expounds its diction on what actually Chapter Six does and should entail

extensively.

The Statute delves into other Chapters and Articles of the CoK that should be put

into consideration when any Public Officer of the Government of Kenya should

put in mind whilst undertaking the step to execute his or her mandate irrespective

of his or her position in the Government of Kenya.

Section 379 does provide that the Guiding values, principles and requirements that the

State officers should observe are derived from the Constitution of Kenya.

The areas that are given much weight are as follows:

Article 10 The CoK

Chapter Four The CoK (own emphasis)

Article 73 of The CoK

Article 75 The CoK

Article 99(1) (b) and 193(1) (b) The CoK

78 2012 79 Leadership and Integrity Act 2012

31

In the case of County governments, the objectives of devolution

provided for under Article 174 of The CoK

In so far as is relevant, the values and principles of Public Service

as provided for under Article 232 of the Constitution.80

The Statute further provides that nothing in that is provided in the Statute should

be a channel for derogating from the provisions of the Supreme Law of The Land

of Kenya.81

Herein under it will irrelevant to repeat some of the provisions mentioned under

Section 3 of the aforementioned Statute; however, it will be prudent to give

attention to Chapter Four of The CoK. Under the Chapter 4, it is where the topic

of this discussion paper emanates from. This is the Social Economic and Cultural

Rights82 that are provided therein.

Social Economic and Cultural Rights are justiciable,83 this means that the Judiciary

of Kenya has the authority to delve into the same matter; this is because the

protection of the Constitution is on every citizen but the Judiciary is further

entrusted with the duty to protect it.84

80 Section 3 of The Leadership and Integrity Act of 2012 81 Section 3 (3) of The leadership and Integrity Act of 2012 82 Art. 43 of The CoK 83 Art. 20 (5) and Art. 21 (2) 84 Art. 159 of The CoK

32

As provided under The Leadership and Integrity Act and affirmed by UNDP that

corruption does affect Social Economic and Cultural Rights, it will be prudent to

discuss Article 4385.

Article 43 of The Constitution of Kenya

The provisions of Article 43 are also a reflection of The International Covenant

on Economic and Social Cultural Rights. The Right as it is known: Social

Economic and Cultural Rights is supposed to be realized prior the introducing it

into law. However, the laxity of the Politicians failure to acknowledge that fact,

there was need to place the same into law and make it justiciable. This is why the

Governments have tried to contest the element of Justifiability of the Social

Economic and Cultural Rights.86

(1) Every person has the right –

(a) to the highest attainable standard of health, which includes the right to

health care services, including reproductive health care;

(b) to accessible and adequate housing, and to reasonable standards of

sanitation;

(c) to be free from hunger, and to have adequate food of acceptable quality;

(d) to clean and safe water in adequate quantities;

85 The CoK 86 Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169. (CC)

33

(e) to social security; and

(f) to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons who are

unable to support themselves and their dependants.87

In any event corruption is not condoned to the latter, the ramifications of it is that

most of the Rights provided herein above as stipulated by the Constitution will

not be attained or if the same will be attained, the process will protracted.

UNDP:

Corruption is principally a governance issue – a failure of institutions

and a lack of capacity to manage society by means of a framework

of social, judicial, political and economic checks and balances (own

bold). When these formal and informal systems break down, it becomes

harder to implement and enforce laws and policies that ensure

accountability and transparency.88

Kenya is suffering from “Governance Issue” – this can be portrayed by the recent

cases of corruption sprouting within Kenya.89

87 Art. 43 of The CoK 88 UNDP Practice Note: Anti-Corruption (February 2003) 89 <http://www.ft.com/cms/s/0/bf75a7ee-c7f9-11e4-8210-00144feab7de.html#axzz3bVtNtnaX> (Accessed on The 29th day of May 2015); <http://www.reuters.com/article/2015/04/01/us-kenya-corruption-idUSKBN0MR1AI20150401> (Accessed on The 29th Day of May 2015);

34

Johannes Zutt:

Unsatisfied with qualitative data, some people have tried to obtain more

solid quantitative data. But hard data are not easy to find. Often we have

specific indicators that fraud or corruption has occurred—auditors find

companies or contracts that appear to be fictitious; whistleblowers say that

contractors are paying bribes or kickbacks; high bid prices suggest that

companies are colluding to inflate prices and share the rent gained; civil

works exhibit poor quality or lack equipment, suggesting that the

contractor has skimmed off the savings.

These facts are not in themselves proof of fraud or corruption, even if they

are often correlated with it. But even if we investigate and prove the fraud

and corruption, it is notoriously difficult to quantify its extent. If someone

pays $500,000 in bribes to get a $60,000,000 contract, and then uses

substandard concrete to execute the works, what is the total loss? Poor

concrete on a terrace may not be too serious—but in the walls and ceilings

it may impair the entire building and everything inside it. And if it is

difficult to quantify the cost of corruption in specific cases, it is so much

more difficult to quantify it across many cases across a whole economy.

Hence, meaningful cross-country comparisons are virtually impossible.90

<http://www.economist.com/news/middle-east-and-africa/21646811-after-long-era-impunity-crooked-politicians-may-now-have-watch-out> (Accessed on The 29th Day of May 2015) 90 Johannes Z. <www.blogs.worldbank.org/africacan/corruption-in-kenya> (Accessed on The 29th Day of May 2015)

35

In shifting the argument from the collection of data for purposes of substantiating

an argument for purposes of prosecution, it will be prudent to appreciate the idea

of kickbacks or bribes or ‘grease money’ – this can be noted to lead to questionable

situations in the near future. For instance, Mr. Johannes example shows how such

deals can lead to precarious revelations in the near future.

Frank Vogl:

Corruption is a political, social and economic issue of global proportions.

Today, as never before, it is a major cause of the global crises of poverty,

human rights, justice and security. It impacts us all.

All governments are vulnerable to corruption and no government can

claim that it does not harbor officials who abuse their office for their

personal gain. While it is almost certainly true that corruption in

government will never be ended, it is equally true that much can be done

to reduce its prevalence.91

As it known that, corruption affects all of us directly and/or indirectly, it should

be noted that the same cannot be stalled in totality. This is because the term

corruption is a wide term that incorporates many activities. However, reducing the

actions or inactions that lead to corruption can help improve the social economic and

91 Vogl, Frank. Waging war on corruption: Inside the movement fighting the abuse of power. Rowman & Littlefield Publishers, 2012.

36

cultural rights of a given State. Currently, The Kenyan Corruption Perception Index

stands at 145/175 as per the 2014 results.92

Frank Vogl asserts that corruption is:

Crime against humanity

An economic crime

Crime against taxpayers everywhere

Damages peace and security.93

Clinging on Frank Vogl words it is clear that Corruption affects Social Economic and

Cultural Rights negatively.

3.4 Other Statutes Anti-Corruption and Economic Crimes Act

Ethics and Anti-corruption Act

Kenya Proceeds of Crime and Anti-Money Laundering Act

The aforementioned Statutes do not necessarily approach the term Social

Economic and Cultural Rights but they are utilized to prosecute crimes that cling

to the corrupt activities that occurred and yet to occur: more of an inchoate

offense.

92 Transparency International <https://www.transparency.org/cpi2014/results> (Accessed on The 29th Day of may 2015) 93 Vogl, Frank. (Supra)

37

3.5 Case Law

In most (if not all) of the corruption cases held in Kenya happen to lose touch

with the fundamental human rights as provided in the Constitution of Kenya. This

is irrespective of the weight of the same being discussed under the Leadership and

Integrity Act. However, for purposes of time differences, the cases decided prior

August 2010, it is clear that there were different laws being applied in Kenya.

Irrespective of that, the deterrence effect by the laws in place seem to have a lower

severity impact.94 In the John Gatua Kabira case (supra) the appellant had his

surcharge reduced from Kshs. 128 000 to Kshs. 20 000. Thus, the law provided

he who was found guilty of an economic crime was to pay twice that given

amount.95

Having laws with that kind of severity, it clear that its severity is low; hence, the

element of deterrence cannot be effective. Therefore, people will continue to

condone corrupt activities within the State.

Christopher Ndarathi Murungaru v Kenya Anti-Corruption Commission & Another96 it can

be noted that by then when the promulgation of current Constitution had not

taken course and therefore, the Court happened to have questionable limb of

thought. Herein under the statement is made by the Court is as follows:

Lastly, before we leave the matter, professor Muigai told us that their

strongest point on the motion before us is the public interest. We

94 John Gatua Kabira v Republic of Kenya [2006] eKLR 95 Section 48 (2) (b) of The Anti-Corruption and Economic Crimes Act 96 [2006] H.C. Misc. Civil Appl. No. 54

38

understood him saying that the Kenyan public is very impatient with the

fact that cases involving corruption or economic crimes hardly go on in

the courts because of applications like the one we are dealing with. Our

short answer to Professor Muigai is this. We are aware of the fact that the

public has a legitimate interest in seeing that crime, of whatever nature, is

detected, prosecuted and adequately punished. But in our view, the

Constitution of the republic is a reflection of the supreme public interest

and its provisions must by the courts, sometimes even to the annoyance

of the public. The only institution charged with the duty to interpret the

provisions of the Constitution and to enforce those provisions is the High

Court and where it is permissible.97

Taking a comparative lane between the repealed Constitution and the current

Constitution it is clear that the provisions of the current Constitution is more

Human Rights oriented and also in favour of the Public Good. That is an element

that the repealed Constitution seem to lack and thus why legally walking away from

a liability was more easy. More of this legal hitch was observed in Kenya Anti-

Corruption Commission v L. Z. Engineering Construction Limited & 5 Others.98

However, the main objective of introducing the case laws was not to check the

convictions but if the Courts or Legal Practitioners do have in mind the impact of

Corruption towards the Social Economic and Cultural Rights.

97 John Gatua Kabira (Supra) 98 [2004] eKLR

39

4.0 CHAPTER 4

4.1 Introduction

Corruption is the topic of the day. Currently, President Muhammadu Buhari who

is the only democratically elected leader in Nigeria99 is mentioned to have plans to

fight the rampant cases of corruption in Nigeria. Nigeria is regarded as one of the

States in Africa that seem to find corruption sufferable.100 Corruption is not only

swallowing Nations but also International Organisations; in this case Fédération

Internationale de Football Association (herein after referred as FIFA).101

It would not be advisable to affirm that those are the only case of corruption in

the world; however, during the penning of this paper these were the populous

cases regarding corruption sufficing the International sphere.

Reverting to the alleged cases of corruptions that have emanated, it might seem to

appear that it was only about the Organisations, States, Companies et al. however,

that is not the case on the ground. Thus, corruption negatively impacts various

livelihood directly and indirectly. Opportunities and lives are lost, the indirect

impact of that is having a society that is not developed or if it is ‘developing’ it is

99 <http://www.aljazeera.com/news/2015/05/nigeria-set-historic-democratic-handover-buhari-150529025601554.html> (Accessed on the 31st Day of 2015) 100 136/175 – Transparency International (Supra) 101 FIFA Scandal <http://edition.cnn.com/2015/05/27/us/fifa-corruption-investigation-why/> (Accessed on the 31st Day of 2015)

40

based on sub-standard products or infrastructure.102 With such circumstances, it is

clear the developments are not sustainable.103

Corruption can only be addressed if the private sector is involved to these

objectives of the Government(s).104 Therefore, to fight corruption one does not

need to only to delve into the Government but also other key players within the

building the society: socially, culturally and economically.

Herein under the discussion paper will give much weight on International Legal

Instruments that address topics referring to corruption. This will be

The African Union Convention on Preventing and Combating Corruption

United Nations Convention Against Corruption

The former is based on Africa as a continent and the latter is an International legal

instrument.

102 <http://www.businessdailyafrica.com/Why-substandard-buildings-will-soon-be-part-of-history/-/1248928/1860704/-/ddxi8vz/-/index.html> (Accessed on the 31st Day of 2015) 103 Anti-Corruption Ethics And Compliance Handbook For Business – OECD, UNODC and THE WORLD BANK <http://www.unodc.org/documents/corruption/Publications/2013/13-84498_Ebook.pdf.> (Accessed on the 31st Day of May 2015) 104 Anti-Corruption Ethics And Compliance Handbook For Business (Supra); See also, The African Union Convention on Preventing and Combating Corruption – Preamble & Article 11

41

4.2 The African Union Convention on Preventing and Combating

Corruption

In the 1990’s Africa undertook the initiative to fight corruption as it was growing

too fast and not to forget the ramification it left to the citizenry of the given State

that corruption was sufferable.105 It is not new that corruption has grave impact

on Human Rights and The African union Convention on preventing and

Combating Corruption (herein after referred as AUCPCC) is very clear on the

same division.

The AUCPCC provides that:

Cognizant of the fact that the Constitutive Act of the African Union, inter

alia, calls for the need to promote and protect human and peoples’ rights,

consolidate democratic institutions and foster a culture of democracy and

ensure good governance and the rule of law;

Aware of the need to respect human dignity and to foster the promotion

of economic, social, and political rights in conformity with the provisions

of the African Charter on Human and People’s Rights and other relevant

human rights instruments;

Concerned about the negative effects of corruption and impunity on the

political, economic, social and cultural stability of African States and its

devastating effects on the economic and social development of the African

peoples;

105 The 1994 Cairo Agenda for Action Relaunching Africa’s Socio-economic Transformation

42

Acknowledging that corruption undermines accountability and

transparency in the management of public affairs as well as socio-

economic development on the continent;106

Under The Preamble,107 it is clear that socio-economic or social economic and cultural

rights have been given much more weight. Hence, herein under this paper will

appreciate the content of the Statute. As it known, the Statute is in place to

expound on the respect that ought to be proffered towards the Human Rights

provided in the Banjul Charter.

AUCPCC defines corruption as the acts and practices including related offences prescribed

in this Convention.108 The offences are provided under Article 4; 5; 6; 8; 10.109

Well, it will be prudent to restate and affirm that the discussion in this paper is not

about the punishment being in place for persons who intend or take part in corrupt

activities, but to raise the eyebrows of all the persons who seem not to understand

the ramification of corruption. This is because it is not only about loss of monies

but can lead to violating other Human Rights as provided in the various legal

instruments depending on what different States and Regions have incorporated as

their guiding terms.

106 The Preamble of AUCPCC 107 AUCPCC 108 Art. 1 of The AUCPCC 109 The AUCPCC

43

For that reason, the paper is majorly appreciating the text that related to directly

or indirectly towards the terms: socio-economic or social economic and cultural rights.

Principles of AUCPCC

The legal instrument is guided by its own five (5) principles. However, the ones

that are wide ample vis-à-vis the topic of discussion are three (3):

Respect for democratic principles and institutions, popular participation,

the rule of law and good governance.

Respect for human and peoples’ rights in accordance with the African

Charter on Human and Peoples Rights and other relevant human rights

instruments.

… …

Promotion of social justice to ensure balanced socio-economic

development.

… …110

The aforementioned provisions are in line with the Objective of AUCPCC111 that

provides as follows:

110 Art. 3 (1) (2) & (4) of The AUCPCC 111 Art. 2 (4) of The AUCPCC

44

Promote socio-economic development by removing obstacles to the

enjoyment of economic, social and cultural rights as well as civil and

political rights.112

Socio-economic rights are rights that refer to access to better housing, health care,

education et al. as it was mentioned earlier on, these rights are more of meeting

the millennium Development Goals. The MDGs were to be achieved by all States

across the globe by the year 2015.113 However, the developing Nations requested

for more time as they claimed they had no ample resources to meet this goals as

required. Hence, one can note that a State like Kenya came up with Vision 2030.114

South Africa is one of the States in Africa that has taken the initiative to provide

better living standards of its citizenry by proffering reasonable housing.115 The

Grootboom Case116 is one of the South African cases that raised various principles of

establishing socio-economic rights as being justiciable. Well, the case did not come as a

way of economic crimes but a demand of an existing Constitutional Right.

4.3 United Nations Convention Against Corruption

Corruption is an insidious plague that has a wide range of corrosive effects

on societies. It undermines democracy and the rule of law, leads to

violations of human rights, distorts markets, erodes the quality of life and

112 The AUCPCC 113 <http://www.un.org/en/ecosoc/about/mdg.shtml> (Accessed on the 31st day of May 2015) 114 <http://www.un.org/en/ecosoc/about/mdg.shtml> (Supra) 115 Cities Alliance <http://www.citiesalliance.org/node/2964> (Accessed on the 31st day of May 2015) 116 [2000] (11) BCLR 1169 (CC)

45

allows organized crime, terrorism and other threats to human security to

flourish.

Corruption hurts the poor disproportionately by diverting funds intended

for development, undermining a Government’s ability to provide basic

services, feeding inequality and injustice and discouraging foreign aid and

investment.117

The aforementioned excerpt is emphasized as it vividly describes the thoughts of

the author in this discussion paper. The harm of corruption not a myth anymore

as statistics prove that the ramifications of corruption is equal to shooting

someone on his limbs or torturing a human being and leaving him or her for death.

The United nation Convention Against Corruption is legal document that was

brought into place in the year 2004. It is clear that this legal text seeks inspiration

from various International Legal instruments like The United Nations Charter;

The Universal Declaration on Human Rights; The Two (2) Generations of Human

Rights one based on the Capitalist States Ideologies118 and The other Communist States

Ideologies.119

Irrespective of the Legal Instruments echoing other legal instruments that are

already in place, it introduces new factors such as Multidisciplinary Measures120 should

117 The Foreword of The United Nation Convention Against Corruption (herein after referred as UNCAC) 118 The International Covenant on Civil and Political Rights (herein after referred as ICCPR). 119 The International Covenant on Economic Social Cultural Rights (herein after referred as ICESCR). 120 Preamble of UNCAC

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be utilized to address the issue of corruption and it further address on how States

can help each other to fight corruption. This is like the issues of extradition. The

idea of extradition is also echoed by the AUCPCC.121 This is evident in the 2015

FIFA Scandal. Well, as it might seem to implicate the topnotch officials at FIFA

and other Companies, the realities are that from the same actions and/or inactions

most people at the bottom of the triangle suffered due to the corrupt activities of

the entrusted leaders.

121 Art. 15

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5.0 CHAPTER 5

5.1 Conclusion

Whilst coming up with the topic of addressing in this discussion paper, there were

a lot of ideas propelling with regards to corruption. Some had been addressed and

some have not been addressed or if addressed, the same was not given the needed

attention.

For instance, the issue of socio-economic rights is only addressed via reports made by

National and International Institutions. There are also legal documents that have

mentioned how corruption is one of the many factors making states unable to attain

their MDGs and other reasonable forms of developments.

The fact that some legal instruments have acknowledged the fact that corruption

affects Human Rights and mostly socio-economic rights, the ability to bring this

argument in courts seem to be low or even none.

The courts need to take into cognizant that such cases are wide; hence, a wider

definition should be afforded.

Irrespective of having the Anti-Corruption Commission in Kenya, it does not

mean that all the necessary legal aspects are addressed by the Institution. This is

because, the ears and minds of those taking part in the proceedings are less

concerned of the direct and indirect ramifications of Corruption to a State and its

citizenry rather the only matter on the table is guilty or not-guilty concept.

5.2 Recommendations

After a deep research and eliciting of ample information from various sources, it

is noteworthy to state the following:

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The Government of Kenya through its rightful operative should change the

manner in which it addresses the issue of corruption. Thus, the idea of viewing

corruption as an economic crime, it blinds the Justice needed by the citizenry who

entrust the Government through the three limbs of Government it will protect

their interest.

The Judiciary should enlighten the Magistrates and Judges about the impact of

corruption and human rights: socio-economic rights. This will help the Judiciary

analyze a case extensively. Thus, as much as Kenya is not have a Civil Legal System,

the operatives of the Judiciary are supposed to inquire on where they need clarity

or when the law is being misstated.

All the economic crimes should be addressed as Petitions and not criminal matters

as they seem to be addressed. This should be the case because it will help avoid

circumstances where a court or tribunal and/or Commission assert that it does not

have the jurisdiction to address a certain matter. As it is known in Kenya under

the various Courts found under the High Court, it is the only institution that can

address matters of Human Rights and there are channels of appeal the can even

reach the Supreme Court of Kenya.

Making provisions such as that the amount one can be surcharged when found

guilty in a criminal case cannot go beyond one million Kenyan shillings or if below

one will be charged asked to pay twice the amount utilized to effect corrupt deeds

is quite appalling. It encourages corruption, as one will have to take part in

corruption knowing the ramification is not that sever at al. hence, new policies

should be invited and effect to the latter.

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