STATUS OF THE UTILIZATION OF THE PRIVATE SECTOR IN THE
FIGHT AGAINST CORRUPTION IN KENYADavid Gathii

I. INTRODUCTIONCorruption in Kenya, like in all other parts of the world, remains a major challenge. Studies
undertaken by local and international organizations releases credible reports indicating Kenya isamong the countries in the world badly affected by corruption. In response, Kenya has adopted amulti-pronged approach to the fight against corruption.

II. UNITED NATIONS CONVENTION AGAINST CORRUPTION
On 9 December 2003 when the United Nation Convention against Corruption (UNCAC)was opened
for signature in Merida,Mexico,Kenya became the first country in the world to sign and simultaneously ratify UNCAC.This strengthened the fight against corruption and the country has continued to put
in place measures, both within and outside the purview of UNCAC, to address and mitigate anticorruption.Kenya undertook a gap analysis on the implementation of UNCAC and presented a reportduring the International Conference held in Doha, Qatar in 2010. It is also currently preparing its
country report for the peer review slated for 2014.

III. THE FIGHT AGAINST CORRUPTION IN KENYA
The war against corruption in Kenya is Government driven. While fighting corruption dates backbefore independence in 1963,it was not until 2003 when serious efforts began.Keyamong these included
the following:
A. Legal Reforms
Enactment of various laws critical to the fight against corruption such as the Anti-Corruption
and Economic Crimes Act, 2003, Public Officer Ethics Act, 2003;Code of Conduct for PublicServants,Public Procurement and Disposal Act ,2005 and Rules,2006;Anti-MoneyLaundering
Act (which created the Financial Reporting Centre)
Establishment of anti-corruption agencies
Appointment of Special Magistrates to try corruption cases
Establishment of a Cabinet Committee on Anti-Corruption
Strengthening prosecutions and undertaking reforms in the public service
To augment the above legal initiatives, the Government also embarked on a nationwide sensitization and awareness creation campaign aimed at changing the behaviour and attitudes of the people
towards corruption to prevent corruption.
B. Enactment of the Constitution
Kenya promulgated a new Constitution in 2010, which has various provisions that boost the fightagainst corruption;key among them are the following:
Acting Director, National Anti-Corruption Campaign Steering Committee, Kenya.

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PARTICIPANTSʼPAPERS(i)National values (art 10)(ii) Access to information by the public (art 35)(iii) Ethics and Anti-Corruption Commission (art 79)(iv) Independent Judiciary (art 160)(v)

Auditor General (art 229)(vi) Public Service Commission (art 233)
(vii) Police obligated to fight corruption (art 244)
C. Anti-Corruption Agencies
The Government established anti-corruption agencies and continues to support and facilitate themto implement various anti-corruption strategies and activities. The Ethics and Anti-Corruption Commission (EACC) is the national institution dedicated to deal with corruption through enforcement,
prevention and education while the National Anti-Corruption Campaign Steering Committee (NACCSC) undertakes the nationwide sensitization and awareness creation campaign. These two anticorruption agencies (ACAs) have been granted substantial requisite autonomy to discharge theirmandates.Other key organizations critical to the fight against corruption include the National PoliceService, Kenya Revenue Authority, Auditor General, Director of Public Prosecutions. The following
are the approaches to the fight against corruption:
1. Investigations
EACC is the body set up to enforce the law through receipt of complaints,detection,investigation
and assets tracing.EACC also recommends to the Director of Public Prosecutions cases where there issufficient evidence of wrongdoing.
2. Prevention
EACC undertakes system and procedure audits to identify loopholes, corruption risk assessment;
and development of anti-corruption plans and codes of conduct for publicly funded institutions and,upon request, for private firms. It also conducts the Public Service Integrity Programme to train
Integrity Assurance Officers who then spearhead the formation and facilitation of M inisterial/Departmental Corruption Prevention Committees.
3. Education
EACC discharges its education mandate through the development of the anti-corruption education
curricula for primary,secondary and tertiary institutions,sponsorship of the anti-corruption category
in the annual national drama festivals for schools and colleges in Kenya,establishment and sustenanceof Integrity Clubs in schools and educating the public on the dangers ofcorruption and to foster support
for EACC. It also undertakes research and corruption perception index studies.
4. Anti-Corruption Awareness Campaign
The awareness campaign mainly targets the ordinary Kenyan citizen who is on the supply side of
the corruption equation. The war against corruption cannot be won without the support and active
participation by the members of the public.The campaign is implemented by NACCSC in partnershipwith various stakeholders such as civil society, religious organizations, youth and womenʼs groups,
among others. Key interventions include multi-media anti-corruption programmes through television,
radio including community radio,print media,Internet and social media;conducting capacity building
and sensitization seminars, workshops, religious forums and rallies; undertaking social audits andpublic-reporting forums on projects and programmes funded by the tax payer.
Others are advocacy campaign programmes such as marking the UN International Anti-Corruption
Day on 9 th December every year and organizing national Prayer Days for religious organizations;anti-corruption music,production and distribution ofInformation,Education and Communication (IEC)237

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materials such as banners, brochures, caps, t-shirts; establishing civilian oversight committees toreceive complaints and address corruption issues at the grassroots and generating credible data to
inform and affirm campaign strategies and activities through research/studies on corruption.

IV. IM PLEMENTATION OF UNCAC
Kenya has been implementing the UNCAC and the following is the status of the provisions ofarticles 12, 13 and 39 of the convention:
A. Article 12 ― Private Sector
Article 12 requires each State Party to UNCAC to take measures to prevent corruption involving
the private sector, enhance accounting and auditing standards in the private sector and provide
effective,proportionate and dissuasive civil,administrative or criminal penalties for failure to comply
with such measures. The following is the progress on the implementation:
1. M easures to Prevent Corruption in the Private Sector
The private sector in Kenya is well developed and the Government has made big strides in involving
the sector in the fight against corruption mainly through the umbrella body Kenya Private SectorAlliance (KEPSA). Corruption in the private sector pushes up the cost of doing business and may, inthe extreme deny firms business. The following measures have been implemented:(i)

KEPSA is one of the agencies that implement the National Anti-Corruption Plan (NACP)
under the Kenya Integrity Forum (KIF)through the Association of Professional Societies ofEastern Africa (APSEA) and Institute of Certified Public Accountants of Kenya (ICPAK).
These professional bodies regulate the conduct of their members which is important in thefight against corruption.

(ii) All companies listed at the Nairobi Stock Exchange (NSE) are regulated by the Capital
M arkets Authority(CMA)Act,Cap 485A and Regulations,2009.They are required to publish
half and full year audited reports in the local dailies as well as display them in conspicuousplaces.
(iii) ACECA was amended in 2007 by deleting the words “public officer”from section 55(2)so thatproceedings may be commenced against persons whether in public or private sectors.
(iv) The Public Procurement and Disposal Act (PPDA), 2005 prohibits any person from engaging
in corrupt practices in the procurement process and outlines the penalties for such offences.
Specifically, private individuals are debarred from government tendering process on accountof having been convicted by a court of law on a corruption case.
(v)

The Kenya Revenue Authority (KRA) introduced Electronic Tax Register (ETR) System
which has substantially reduced incidences of corruption within the tax regime.

(vi) The Centre for Corporate Governance trains private companies on proper corporate governance including development of necessary instruments.
2. Implementation Gaps
The following gaps have been experienced during implementation:(i)

Lack of laws that expressly disallow tax deductibility of expenses that may constitute bribes(ii) CMA Act is limited to companies that are listed in NSE while strict enforcement of theCompanies Act is weak by provision that directors may appoint nominees to take their places
and can then trade with the same companies.
(iii) The Companies Act is outdated and does not address the emerging issues such as good
governance, information technology and corruption risk management, among others.

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16TH UNAFEI UNCAC TRAINING PROGRAM MEPARTICIPANTSʼPAPERS(iv) The provisions under ACECA do not specifically tackle corruption in the private sector.
(v)

Cooperation between law enforcement agencies and the private sector entities is weak.

(vi) Internal audit controls are insufficient and,at times,optional.There are no structured internal
corruption reporting mechanisms in the private sector.
(vii) Enforcement of most codes of conduct lacks the backing of the law and heavily relies on thegoodwill of members.
(viii)There is ineffective monitoring of public disclosure requirements in corporate entities.
(ix) Stakeholders awareness on existing anti-corruption measures like Codes ofConduct is still low
in the private sector(x) Ineffective mechanism to monitor abuse of procedures regulating private entities(xi) There is lack of effective enforcement of the existing legislation.
3. Recommendations(i)

M ore efforts should be put to curb corruption in the private sector.Such measures mayinclude
development and adoption of codes of conduct and best practices.

(ii) Public sector anti-corruption measures, especially prevention, should be replicated in theprivate sector(iii) Criminal sanctions should be imposed against companies and their officials found to haveengaged in corruption should.
(iv) Companies should develop corruption prevention measures and internal reporting mechanisms(whistle blower system)(v)

The Companies Act should be reviewed to incorporate provisions that will prevent corruption
and reflect current best practices.

(vi) The partnership between the Government and the private sector through the Public Private
Partnership (PPP)should be strengthened and focused on fighting corruption.
(vii) KEPSA should establish an ethics committee to mainstream ethics and integrity in thecontinuous professional development and enhance transparency in the private sector to limit
the sectorʼ
s engagement in corruption.
(viii)The private sector should propose a regulatory mechanism to enforce ethics and integrity
within its membership.
(ix) There should be no discretion by public officers in the regulation of private entities(x) The relevant laws to address the problem of bribes and other acts of corruption treated asexpenses;fraud and financial malpractices should be reviewed.
(xi) Provisions for the disclosure of accounting scandals in the private sector camouflaged indifferent terms are introduced as is disallowing bribes treated as tax deductible expenses.
B. Article 13 ― Participation of Civil Society
Each State Party is expected to take appropriate measures,within its means and in accordance with
fundamental principles of its domestic law, to promote the active participation of individuals and239

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groups outside the public sector,such as civil society,non-governmental organizations and communitybased organizations (CBOs), in the prevention of and the fight. Kenya has a vibrant civil society andnon-governmental organizations that operate freely without undue control by the Government. They
are free to organize activities, including those that are critical to the Government as well as toparticipate in all public events during which they can air their views.
1. M easures to Promote the Active Participation of Civil Society and Others(i)

Civil society is one of the sectors recognized by KIF to implement the NACP(ii) Societies Act provides for the formation and participation of civil societies to carry out
various activities including public education while the NGO Act regulates the formation of
Non-Governmental Organizations (NGOs).
(iii) Anti-corruption agencies have developed and implemented community based anti-corruption
awareness programmes with the civil society targeting local communities to enlist theirsupport in the fight.
(iv) The Office of Public Communication (Government Spokesman)holds weekly media briefings
on matters of public interest.
(v)

EACC and civil society, and academia are in the process of developing and formalizing
anti-corruption curricula for schools, tertiary institutions and universities(vi) The Public Service Week is held annually and allows members of the public to visit andinterrogate various Government Ministries/Departments stands showcasing their work.
(vii) The Statute Law Miscellaneous (Amendments)Act,2007 allowed the members of the public toaccess wealth declarations upon applying to the relevant Responsible Commission.
(viii)Civil society,religious organizations and non-governmental organizations have representationin NACCSC which affords them opportunity to fight corruption.
2. Implementation Gaps
During the implementation of UNCAC, a number of shortcomings have been detected. Theseshortcoming or gaps impact negatively on the ability of the civil society and NGOs to effectively
unleash their full potential to fight corruption and check the excesses and impunity of the Government.
The following are some of the gaps that have been identified:(i)

Inadequate legal framework for civil society engagement and participation in the fight against
corruption in Kenya.

(ii) The Official Secrets Act curtails the release and access of information to the public.
(iii) There is no mechanism for accountability and transparency in the operations of the civilsociety.
(iv) There is no structured platform for collaboration between the Government and civil society.
(v)

Lack of adequate funding for civil society to effectively engage in anti-corruption activities.

(vi) There is widespread corruption within the rank and file of the civil society(vii) The electronic whistle blower system (website) for anonymous corruption reporting is only
accessible to members of the public who have access to the internet and,therefore,ineffective.

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3. Recommendations
Arising from the shortcomings listed in (b) above, the following are suggested possible solutions
which may help address those problems and ensure that the civil society, NGOs and individuals
contribute to the fight against corruption in the country:(i)Engagement between the Government and civil society should be changed from confrontational to collaborative and cascaded to all levels of policy and decision making(ii) There is need to intensify the community-based anti-corruption programmes(iii) Funding the civil society groups, NGOs and CBOs from the exchequer should be considered.
This will enable these groups effectively fight corruption both in and outside government andwatch over the resources the Government spends on behalf of the public(iv) Civil society should address the problem of endemic corruption within ranks by embracing thetenets of transparency, accountability and integrity in all its operations and finances(v)

The NGO Coordination Board should consider starting to publish the audited accounts of allNGOs in Kenya as the first step towards fighting corruption(vi) The Freedom of Information bill should be enacted to facilitate the public access information
including that which touches on corruption in the public service.
(vii) Public institutions should promote an open door policy and employ participatory methods inthe conduct of their affairs so that the public is informed of decisions affecting them.
The recommendation on freedom of information, if implemented, will improve the corruption
reporting system which currently stands at 42.2% as per National Corruption Perception Survey of2011.
4. Article 39 Cooperation Between National Authorities and the Private Sector(a) Measures Taken to Facilitate Cooperation with the Private Sector(i)

Legislation under section 12 (1)of ACECA provides for cooperation with other bodies.

(ii) EACC and NACCSC have, through various public education programmes, been encouraging
people to report all forms of corruption.
(iii) EACC has installed an electronic system for reporting of corruption anonymously.
(b)Implementation Gaps(i)

Insufficient compliance with the obligations of this Article because of weak cooperation
between the anti-corruption agencies.

(ii) Campaigns and sensitization programmes do not cover all parts ofthe countryparticularlythe
far removed areas(iii) Accessibility to anti-corruption bodies by the public at the grassroots level is limited(iv) Inadequate access and utilization of the anonymous reporting facility due to infrastructural
challenges and lack of awareness.
5. Recommendations(i)

Develop rules of engagement between anti-corruption agencies and private sector entities.

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RESOURCE MATERIAL SERIES No. 92(ii) Expand the awareness programmes to all parts of the country and translate IEC materials into
local languages.The presence of anti-corruption bodies at the grassroots should be increased.
(iii) Undertake a campaign to enhance reporting of corruption cases.

V. ANALYSISThe positive steps that Kenya has taken to implement UNCAC,with a measure of success,and thenew Constitution provides the country with special opportunities that boost the fight. Once fully
implemented, the Constitution will augment UNCAC in fighting corruption and all its manifestations.
It will promote transparency and accountability in the management of public affairs and effectively
reduce corruption in all sectors of the economy.
There is, however, need to develop better collaborative efforts between the public and private
sectors given that the two constitute the demand and supply sides of the corruption equation. The
private sector must stop shying from participating in the fight against corruption particularly inreporting corruption and it is only then that the sector will be able to increase their profits.The samecan be said about the civil society,NGOs and CBOs which are expected to not only generally keep theGovernment on its toes but to specifically police the utilization of public funds.To this end,the sector
should be encouraged to first exorcise corruption from its organizations so as to gain the moral groundto deal with corruption in the public sector.

VI. CONCLUSION
The fight against corruption in Kenya is Government driven. The Government must, of necessity,
go out of its way to prompt, pursue and facilitate the participation of the private sector, and civilsociety in the fight against corruption.Further,it should continue to facilitate and provide leadershipin the implementation of the UNCAC to achieve the desired goals,guarantee provision of resources tofight corruption and bring on board the public to actively participate in the war. Overall, Kenya haslargely complied with the provision of the UNCAC articles 12,13 and 39.There is,however,still a lotof work to be done before the fruits of the fight against corruption can be realized.
References
Ethics and Anti-Corruption Commission, National Corruption Perception Survey, 2011, Government
Printer, Nairobi, 2012.
Kenya Government, Constitution of Kenya, Laws of Kenya, Government Printer, Nairobi, 2010.
Kenya Government, GAP Analysis: United Nations Convention Against Corruption, Government
Printer, Nairobi, 2009.
Kenya Government, Kenya Vision 2030: A Globally Competitive and Prosperous Kenya, Government
Printer, Nairobi, 2008.
Kenya Integrity Forum,National Anti-Corruption Plan Implementation Progress Report -July 2010 ―June 2011, Government Printer, Nairobi.
Kenya Government, Anti-Corruption and Economic Crimes, Act 2003, Government Printer, Nairobi,
2003.
Kenya Government, Public Officer Ethics Act 2003, Government Printer, Nairobi, 2003.
Kenya Government, The Public Procurement and Disposal Act, 2005, Government Printer, Nairobi,
2006.
Transparency International, 2008 International Corruption Perception Index, Berlin, 2008.

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Transparency International, 2012 Transparency International Corruption Perception Index, Berlin,
2013.

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