How Corruption Cartels Operate in Kenya Government

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Investigative Report:

How Corruption Cartels Operate in Kenya Government

 

 

 

 

By Kenya Confidential Financial Editor

How corruption seamlessly propagates itself in Kenya Government ministries

A lot has been talked about corruption in Kenya with politicians attributing graft to their fellow rivals. No one seems to be prepared to accept that corruption is a personal choice that one can say no to and live with a clear conscience. No one also seems to admit that corruption in government establishments cut across political persuasions, ethnic roots and religious believes. Corruption is a self-determined activity that amounts to self-inflicted crime.

That said the first thing Kenyans need to understand is that that corruption is far far deeper rooted in Kenya that we ever thought. Not only is that the case but, it manifests itself in inefficiency which is contrived not incidental. It is a deliberate, calculated sinister and sustained effort by individuals across the public and private sectors with a similar agenda and attitude – steal from public coffers.

It works through inefficiency, deceit, outright lies, manipulation of accounting systems (especially the now notorious Integrated Financial Information Management Information System (IFMIS), manipulation of budgets, procurement systems, rules and regulations, threats, intimidation, liberal bribery, of colleagues and outright blackmail. Often both ministers and permanent secretaries are hostage to these groups.

Their one aim – Milking the system to line their pockets in the fastest way possible. Most public officials are not interested in making a contribution to the growth of the nation and subsequently living off their retirement benefits. Many are quite prepared to make a killing even if caught and use the normal systematized protection of the public service, transfers and in worst case scenario sackings to buttress themselves from the legal system.

In the event of actually finding oneself in court, the public official must then have stolen enough to pay lawyers, bribe judges and generally muddy up the waters so much and for so long that a proper trial becomes impossible. This has been the case in Kenya so far. Case files disappear, witnesses die and judges take bribes.

The scandal about the missing money in the school education fund last year got me thinking about cartels in ministries and how they operate. The genesis of this goes back even to the mid sixties and the first ‘mafia’ that surrounded the then President Jomo Kenyatta. They and the fact that public officers were by law allowed to have private business (thanks to former Central Bank Governor Duncan Ndegwa) provided for this most unholy of alliances between cartels and private companies, that have now broken the back of government procurement systems and led to the loss of 100’s of billions of tax payers money.

ndegwa copy

Duncan Ndegwa: Father of civil servants corruption?

There is no question about it, the single largest loss to corruption of public funds is through these cartels, faceless and ruthless, they design internal systems (IFMIS) that to all and sundry look like they are protecting public funds but because they themselves have designed them, they also know their inherent weaknesses and how to exploit the same.

Further to this. The cartels position themselves, again by design so that they control the paper trial in ministries, from procurement to minutes of meetings, to employment records to inventories of equipments, materials, vehicles, schedules and all other paperwork that a Ministry uses to function. Where and when necessary, paperwork is altered, minutes doctored, letters disappear and reappear when the ‘deal is done’, anything that can implicate them in any wrongdoing is systematically destroyed and a good measure of threats and blackmail ensure that sleeping dogs lie…never to get up again.

Ndungu

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Let me introduce the players in this despicable game.

Basically the players are the same across the public service and have their colleagues in crime in parastatals, commissions, Government projects and collaborations with donor agencies and secretariats. They are a close knit cobweb spread over all government Ministries.

Ministers and their permanent Secretaries are rarely part of these cartels. Their jobs being too much in the public eye and the politics of their work making it to involving for them to work behind the scenes as well as in forefront. They are simply put, too busy with public engagements. Therefore, the real players in cartels remain faceless to the public.

They are normally, the deputy secretary: This person will normally double as the administrator for the Ministry and will have a corresponding AIE, they will also sit on the Ministerial Tender Committee often as chair. The head of procurement for the ministry, the directors in ministry projects and commissions, committees, parastatals and other strategic projects in ministries that have their own budgets, this includes the Provincial administration, DC’s and heads of departments at the district and county level. All these individuals will hold separate AIE’s and or head secretariats where they will have the final say over who is employed directly or seconded from other ministries.

In addition cartels rope in the ministries designated legal secretaries. These are often lawyers with no real world prowess. The cut and thrust of private sector criminal and commercial law well beyond their capabilities….but in a static environment…in a place they can call home, where they can grow and adjust legal policy and environment and mould it to the ministries requirements they have no peers. These, then act as the ‘AG’s’ of the cartels….advising them on how to create and manipulate legal loopholes to suite their purposes, cover their agendas and seal their exits.

Most of these individuals will have godfathers, also behind the scenes in the office of the president and by virtue of the same in the provincial administration in order to tap into projects, programmes at the district level. Incidentally, the Provincial Administration is the single largest, most ruthless cartel in Kenya. This is why despite many attempts, and changes in legislation to rid Kenyans of it, it still exists today.

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This loose group over a period of time will coalesce into a notorious and greedy cartel that will have billions of shillings at its fingertips. This will be used to bribe and intimidate any who oppose it including ministers and the PS’s in their own ministries. This is a brief example of how they work:

A certain Ministry has a number of projects under it. The various boards commissions and committees that oversee them are normally appointed by president in consultation with the minister. These may have varied and distinct functions.

The first thing cartels will do is study the board, committee, commission. Looking for a way to divide them. The age old divide and rule practiced by the colonialists in pre independent Kenya still is the mainstay of this ugly game. Many public officers still view with great hostility those from the private sector. More so those who however and for whatever reasons have managed to catch the eye of the powers that be and secure appointments to government driven and funded projects and programmes.

As such, those on boards, committees, and commissions face from day one a more or less hostile facilitating arm of Government. You can see this by the extent of shenanigans in them today. If its not one thing its another, more often than not driven by cartels in the parent institutions.
The directors and secretariats thereof quickly resort to underhand means to demonstrate, stamp their ‘authority’ on the programmes and projects in an anticipated turf war to control the funds.
Gichuru and OkemoSamuel Gichuru (Left) former Kenya Power and Lighting Company MD and Former finance minister Chris Okemo, facing extradition charges to Jersey for corruption

The methods of division can range from simplistic and basic arguments as to how the programme, project will best function to interpretation of the terms of reference of the secretariat vis a vis the board. More outrageous scenarios occur when secretariats actively try to underfund components of the budget (in the hope that they will fail), interfere with payments claims and allowances, and hide documents, minutes and other crucial working papers to deliberately derail the programme in the hope of forcing a crisis. This is normally done with the full support of the directors and public officers in the ministry who hold related AIE’s and supposed goodwill to the projects.

Further to this. Less critical or outspoken members of commissions’ boards and committees will find favour with the cartels and a speedier and more positive response to their requests even when these pertain to rights that are guided by law and current Government guidelines.

Some commission members will suffer the indignity and (illegal) prying of their private lives where even directors and secretariats will try to bribe ministry staff and or members of the publics to find out information about appointees that may prove detrimental to their positions. In some cases even having board committee members followed around even to their homes to try pick up any dirt they can find on them. Such methods of harassment and intimidation occur across the board when cartels feel threatened.

The belligerence of some public officers even extends to challenging board members as to the fact that they are not appointing authority of directors and or other public official and so should mind their own business since that official reports elsewhere. This of course can be couched in politically correct language but its intent is well conveyed.

Where a commission, board or committee refuse to give in to the cartels impunity they escalate the challenge and can become quite coarse in their drive to stake their own illegitimate grounds. In seminars and capacity building programmes, consultants have been cajoled and or bribed to give a skewed interpretation of the functions and methods of implementation of a programme or project in the hope that the policy makers give up their mandate to a secretariat and public officers who should in effect be under their instruction.

Further to this, secretariats in collusion with the ministries administrators will source and second inept, corrupt and otherwise compromised staff to the same to enhance their own ability to manipulate the resources.

Complains from boards committees and commissions again (through poor design or protocol perpetuated by the so called legal secretaries) are still to be channelled through the same directors who the complaints are against and further to the same administrators who are the kingpins of the cartels for evaluation. Requests to meet with PS’s and Ministers directly are strenuously opposed. Many times outright lies that the two are unavailable or busy when in fact the requests have been sidelined and have not reached them are the order of the day.

Another tool the cartels may use again through the designated directors is to delay and derail the filing of official reports that in most cases are required on a quarterly basis. Some commissions may fail to submit reports for years because a director is still seeking through protocol to have the report delivered to their patron yet the same person will deceive his commission that the requests for an official audience are pending when the truth is that none have been forwarded in the first place.

The ultimate aim of this is to bring the commission into disrepute and point out their failure to comply with their terms of reference while hiding the fact that the same directors may, using skewed legal inference from the ministry ‘AG’s’, try to convinced members of the commission to embargo the reports until they are first presented to the appointing authority.

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The Kenyan public need to look at the other side of the coin when they see so many failed commissions and reports on corruption scattered throughout Government. It is often not the fact that the executive does not have the will or teeth to release or make public and act on the reports, but may be that the cartels have made such a killing in the process that they will deliberately delay the release and even doctor the contents to protect themselves. They may even withhold certain information from the reports to be ‘released’ later with the express intention of discrediting the whole process. Such are the machinations of cartels.

When all is said and done, the fight against corruption is dead in the water if only factual evidence can be used to contain it. There is a huge amount of circumstantial evidence that can at least be used to justify probes and or surveillance to uncover the methods cartels employ to work and thrive which they do.

It will never be enough to adopt the attitude that only when enough evidence has been gathered will a suspect be arraigned in court and prosecuted. The very nature of Government in this country means that will probably never happen. Government, and the executive must be proactive in seeking out corruption in its hidden niches. Waiting for it to surface through allegations whistle blowing and then investigating and prosecuting will only ever scratch the surface.

The whole nature of how Government functions needs to be put under the microscope and analysed with a view to ensuring that public funds meet public needs.

A quick fix would be to conduct an audit on AIE holders within government. AIE (Authority to Incur Expenditure) are the most coveted positions in Government. There are thousands of officers holding these, from Permanent Secretaries all the way to heads of Departments at district levels. All cartels seek to rope in as many AIE holders as possible. Only through an AIE can money move and thus procurement. AIE holders can use as both carrot and stick approach to deal with officers who don’t ‘toe the line’. Bribery between government officers for different favours, as threats, inducements and other forms of harassment is RAMPANT.

The starting point would be an fiscal audit by the Ethics and Anti Corruption Commission to capture all AIE holders throughout government, their names, positions and amount of AIE for the last financial year. This would be cartels’ worst nightmare as for first time, the public would be able to see exactly who handles public funds, how much and put faces to the names.

This would cause a huge stir in government. The cartels always want to remain anonymous. Immediately the public who rub shoulders with them on a day to day basis would know them. Their neighbours would suddenly understand where the wealth had been coming from. The results of this audit would be then made public.

Within hours, the rate of corruption in government will decline.
Tobiko - Caught between hard place and stoneTobiko: Difficult to tell whether he is public prosecutor or persecutor as criminal cartels reign supreme?

In a number of developed countries there are what are known as departments of ‘Public affairs’. In Kenya today we have a unit known as the EMU (Efficiency Monitoring Unit) and the office of the Ombudsman which in effect function much like a ‘public affairs’ department.

I would propose the merging of these two units and their increased capacitation in both financial and legislative terms to create our own department of public affairs. This would be a quasi Government body in that it would receive (but not be limited to) Government funding but source its personnel from private sector. Anyone seconded to the same would then cease to be a government employee. The details of how it would function to give it the desired level of autonomy could be improvised from those countries in which it has proved effective.

The ‘PA’ would not be a prosecutorial body as this would overload it from day one. It should be a body that functions are limited to Public sector and punitive action within (this would include the Ministry of Internal Security and all its departments including the Police, Provincial administration. CID). That is, it would compile reports on those found abusing office and corrupt practices and forward to minister for action.

This would include its recommendations for what action should be taken against the officers implicated (currently most corrupt officers get off with a slap on the wrist as the process of terminating a Government employee is extremely tedious, direct termination of employment and loss of any dues and benefits should be the norm). The minister could then choose to act on recommendations of the report, or issue a rejoinder if he/ she feels that the report is flawed.

The same reports would be made public after a certain period (14 days) regardless of whether minister has taken action or not. The reports could then be used by Parliament, The police, The Kenyan anti corruption commission, the AG’s office and or any other body that may so choose to.

The ‘PA’ would have the power to summon everyone in public service for questioning with regard to issues of abuse of office and or corruption. They would have power to access all information on procurement, tendering, employment, payments, all cash transactions, all files and documents and any such material as would be relevant to their proper documentation of reports. This could be after a 24 hour notice to the minister. All secret documents should be accessed with approval of a higher authority, perhaps the Prime Minister office or Head of Civil Service.

The reason for this is that then the public, through the media get to see for themselves the conduct of public officers who normally are behind the scenes, which is where the real rot in Government resides.

Regardless of how it is formed and its terms of reference, it is clear to me that without a provoked and sustained assault on these cartels the real damage done to the economy and the impact of corruption remains unchallenged. Cartels in Government in my estimate account for the largest loss of public funds to corruption most of which remains undiscovered and undocumented and as such the greatest challenge to the stability of this nation.

1024px-JUDICIARYJudiciary: A cog in corruption wheel effe in Kenya

The acknowledgement of and exposing of cartels is the most crucial and logical move in the fight against graft. It would also be the most serious affront to institutionalized corruption that would ever have been undertaken by any Government in Kenya’s history.

The breakthrough battle in fighting graft in Kenya, is the elimination of cartels in public service.

As a rider to this document I would propose that in the appointment of Public officers to key jobs like directors of parastatals and commissions or other appointments which are publically advertised and competed for. When a final choice is made, the list of all shortlisted candidates should be made public. This makes the process much more transparent as it enables the public to see who the alternatives were and makes it more difficult to select a candidate on anything other than merit.

The following is a brief outline of the department of Internal affairs as constituted in the US with the aim of keeping reign of the police department: This could form the basis of the wider structure of an department of Public Affairs in Kenya. http://www.state.nj.us/lps/dcj/agguide/internalaffairs2000v1_2.pdf

United States Government approach:

Internal affairs

The Internal affairs Section is a component of the Division of Standards and Training and is responsible for conducting investigations into allegations of serious misconduct alleged to have been committed by employees of the Department of State Police. All employees of the Department are trained to conform with the State Police Rules and Regulations and State Police Policies and Procedures and they are mandated to work in conformance to local, state and federal laws.

Kenya has a pale copy of such section at Jogoo House purporting to investigate police indiscipline, cruelty and human right abuses but it never will touch sacred cows protected by the police hierarchy. Complainants are never involved of findings of investigations touching on officers manning the most corrupt police stations like Buru Buru, Pangani and Central Police Stations in Nairobi who enjoy protection if the Inspector General office and previously Commissioner of Police.

Focus on Police Graft

The Public affairs Section is responsible for protecting the integrity of the Department and ensuring that public confidence and support remains strong by fairly and objectively investigating all complaints in a timely manner. Activities of the Public affairs Section include; registering and conducting the investigations of complaints against members of the Department, supervising and monitoring the intake of alleged misconduct within the Department, forwarding the completed investigative reports through proper channels and maintaining all records of investigations and related findings.

The Internal affairs Section is comprised of ten Commissioned Officers including a Captain who is the Section Commander and nine Detective Lieutenants who are responsible for conducting the investigations. The Commanding Officer provides oversight for the administrative operation of the Section, assigns investigations and reviews completed investigative reports.

Detective Lieutenants are assigned cases and conduct complete and comprehensive investigations regarding the allegations. The investigating officers then review the facts and evidence, render findings and submit reports for processing. When necessary, corrective or disciplinary action is taken against employees who found to be in violation of the rules of conduct.

http://www.state.nj.us/lps/dcj/agguide/internalaffairs2000v1_2.pdf

www.state.nj.us

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