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A CRITICAL ANALYSIS OF WHY ANTI-CORRUPTION REFORMS IN KENYA SO OFTEN FAIL

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Ever since the 1990s, anti-corruption scholars and practitioners became aware of the reasons for failures of anti-corruption reforms in developing countries from different theoretical perspectives. Yet the pieces of specific case analysis with newly emerged approaches – neo-institutional approaches – are still limited. This dissertation addresses the limitations and shows the usefulness of neo-institutional approaches by providing an in-depth analysis of the possible reasons for failures of anti-corruption reforms in Kenya mainly from the new approaches. In the case of Kenya, donors’ interests, citizens’ collective action dilemmas, presidents’ political will, and weak institution are shown to be central challenges for the success of anti-corruption reforms.
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A CRITICAL ANALYSIS OF WHY ANTI-CORRUPTION REFORMS
IN KENYA SO OFTEN FAIL
By
Yusuke Ishikawa
A dissertation presented to
School of Law, Politics, and Sociology
in partial fulfillment of the requirements
for the degree of
Master of Arts in Corruption and Governance
University of Sussex, Falmer, UK
September 2019
1
SUMMARY
Ever since the 1990s, anti-corruption scholars and practitioners became aware of the reasons for failures
of anti-corruption reforms in developing countries from different theoretical perspectives. Yet the pieces
of specific case analysis with newly emerged approaches neo-institutional approaches are still
limited. This dissertation addresses the limitations and shows the usefulness of neo-institutional
approaches by providing an in-depth analysis of the possible reasons for failures of anti-corruption
reforms in Kenya mainly from the new approaches. In the case of Kenya, donors’ interests, citizens’
collective action dilemmas, presidents’ political will, and weak institution are shown to be central
challenges for the success of anti-corruption reforms.
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TABLE OF CHAPTERS
SUMMARY ................................................................................................................................................... 1
TABLE OF CHAPTERS ............................................................................................................................... 2
ABBEREVIATIONS ...................................................................................................................................... 3
TABLES AND FIGURES .............................................................................................................................. 4
PREFACE ..................................................................................................................................................... 5
CHAPTER 1: INTRODUCTION ................................................................................................................... 6
Background ............................................................................................................................................... 6
Intellectual puzzle ..................................................................................................................................... 7
Rationale and focus .................................................................................................................................. 9
Study aims, objectives, and outline ........................................................................................................ 11
Summary................................................................................................................................................. 12
CHAPTER 2: ANTI-CORRUPTION REFORMS IN KENYA ...................................................................... 13
History of anti-corruption reforms in Kenya ............................................................................................ 13
Are reforms really failure? ...................................................................................................................... 18
Summary................................................................................................................................................. 23
CHAPTER 3: ANALYSIS ........................................................................................................................... 24
Reason 1. Lack of interests for foreign aids lead anti-corruption is likely to explain why anti-corruption
reforms so often fail ................................................................................................................................ 24
Reason 2. Collective action dilemma for citizens on combatting corruption are likely to explain why
anti-corruption reforms so often fail ........................................................................................................ 28
Reason 3. Lack of presidents’ political will to tackle corruption are likely to explain why anti-corruption
reforms so often fail ................................................................................................................................ 32
Reason 4. Weak institutions are likely to explain why anti-corruption reforms so often fail .................. 37
Summary................................................................................................................................................. 42
CAPTER 4: CONCLUSION ........................................................................................................................ 43
Summary of dissertation contributions ................................................................................................... 43
Limitations and direction for future work ................................................................................................ 44
BIBLIOGRAPHY ......................................................................................................................................... 46
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ABBEREVIATIONS
ACA: Anti-Corruption Agencies
ACPU: Anti-Corruption Police Unit
CPI: Corruption Perception Index
DPP: Director of Public Prosecution
IMF: International Monetary Fund
KACA: Kenya Anti-Corruption Authority
KACC: Kenya Anti-Corruption Commission
KANU: Kenya African National Union
EACC: Ethics and Anti-Corruption Commission
WGI: World Governance Indicators
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TABLES AND FIGURES
Table 1: KACC and EACC’s implementation on investigation…………………………………………….....19
Graph 1: Control of Corruption in East African Countries……………………………………………………..21
Table 2: East African Bribery Index (Land Service in Kenya)………………………………………………...22
Figure 1: Main motives for giving foreign aids………………………………………………………………….25
Figure 2: Analysis of motives rather than anti-corruption for giving foreign aids in Kenya………………..29
Table 3: Stakeholders’ Contributions to Policy Agenda and Involvement to Policy Making
as well as the Results of these Attempts…………………………………………………………….34
Table 4: EACC’s planned expenditure as well as planned and allocated budget from the government...36
Table 5: Political will summary of the analysis through Brinkerhoff’s framework………………..…….37
Table 6: Levitsky& Murillo’s framework on institutional strength……………………………………………..38
Table 7: Levitsky& Murillo’s framework on institutional strength: Analysis………………………………….41
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PREFACE
The purpose of this dissertation is to investigate what factors give an impact on the degree of the
success of the anti-corruption reforms land patronage and looting corruption in Kenya as well as to
examine whether the success and failure of anti-corruption reforms are explained through neo-
institutional approaches. It is expected that this paper will serve to help scholars and practitioners of anti-
corruption reforms, especially for those who are interested in anti-corruption in Kenya, and inspire
scholars to develop their theories of anti-corruption as well as practitioners to create or improve their
anti-corruption reforms.
On corruption in Kenya, the dissertation covers mainly (i) the history of anti-corruption reforms and
failures of the reforms and (ii) possible reasons why anti-corruption in Kenya so often fail. The reasons
include diversified interests for donor countries to fight against corruption, collective action dilemma for
Kenyan citizens, and the lack of presidents’ political will to tackle corruption, and weak institutional
enforcement and durability.
My work in this dissertation is based on qualitative and quantitative secondary sources, which includes
academic literature, media sources, reports and records from Kenyan public institutions, and research by
Non-Governmental Organisations.
This research was supported by many faculty members in the School of Law, Politics, and Sociology at
the University of Sussex. Prof. Dan Hough, Dr. Liz David-Barrett, Mr. Francis Mcgowan, Dr. Olli Hellman,
and Dr. Sabina Avdagic kindly helped my research of corruption studies throughout the academic year.
Prof. Dan Hough kindly supported organising this dissertation as a supervisor as well. In addition, faculty
members in the School of Global Studies at the University of Sussex, particularly Prof. James Fairhead
and Dr. Fredrick Ajwang, also supported me to gain a solid understanding of contemporary African
issues including contemporary socio-political issues in Kenya. I would like to express my deepest
appreciation to these faculty members.
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CHAPTER 1: INTRODUCTION
Background
Corruption in Kenya has been tenacious over history and reported by a variety of people and institutions.
One the one hand, many citizens experience small cash payments to the public. According to a recent
survey conducted by Afrobarometer, twenty per cent of ordinal citizens have experienced bribe
payments to get civil services, and around 10 % of people responded that they often or a few times
paid bribes to them for services. That corresponds to the result of The East African Bribery Index 2017,
which revealed that citizens said they would pay bribes to get a service, for instance, in the police
(83.3%) and civil services (41.7%) (Transparency International Kenya, et al., 2017).
On the other hand, there have been many massive corruption scandals revealed in Kenyan politics since
its independence. They include Goldenberg scandal in Daniel arap Moi regime (from 1978 to 2002);
Anglo leasing and maize scandal in Mwai Kibaki regime (from 2002 to 2013); as well as National Youth
Service scandal, Standard Gauge Railway, and Eurobond scandal in current Uhuru Kenyatta regime
(from 2013 to the present). For example, maize scandal, which was a scandal in Kenya about sales of
illegally imported maize including allocation of ‘maize to some individuals allegedly on the strength of a
call by Mr Ruto’ (Namunane & Dave, 2009, paragraph 3), was revealed in 2006. That caused a debate
on politicised and stolen maize among Kenyan citizens, particularly among Kenyan maize farmers
(Dauti, 2019).
In addition to such big scandals, the public land has been hugely related to massive corruption in Kenya
as well. It can be traced back to the unequal distribution of the land to maximise each ethnicity, often for
Kikuyu (majority ethnic group) but for other minority groups in reverse when a government is under
minority ethnic groups. Between British government and Kikuyu in the colonised period as well as
between Kikuyu and other minority grous afterword, land ownership and distribution are one of the most
significant issues in Kenyan politics due to unequal land distribution: for example, patronage of land to
Kikuyu in Kenyatta regime and one to Kalenjin one of the minority ethnic groups in Kenya in Moi
regime (Wrong, 2009).
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However, Kenyan government, indeed, has attempted to reduce corruption since the end of the
colonised period. It initiated from the Prevention of Corruption Act in 1956, which made it clear that
‘those who engaged in corrupt practices were caught and punished’ (Gathii, 2010, p. 186). That was
followed by amendment of the law in 1967, having a huge debate on what constitutes ‘gift’ yet being
amended on that part (Gathii, 2010). Afterword, Kenya government started to attempt initial reforms to
combat systematic corruption rooted in Kenyan politics, which was difficult to tackle with existing bills.
The first Anti-corruption Squad was established in 1993 with an amendment of the Prevention of
Corruption Act and, then in 1997, the Squad was replaced with the Kenya Anti-Corruption Authority
(KACA). The Anti-Corruption Agency in Kenya has existed since the establishment, although it keeps
changing its name: Kenya Anti-Corruption Commission (KACC) from 2003 to 2011 and Ethics and Anti-
Corruption Commission (EACC) since 2011.
Furthermore, bills aiming to achieve more specific reforms on corruption have been passed in the
parliament in the last decades. It includes land law reforms from 2009 to 2012 (new National Land Policy
in 2009; the new constitution in Kenya in 2010; and the Land Acts in 2012), the Proceeds of Crime and
Anti-Money Laundering Bill in 2009, and Access to Information Law in 2016 (although it has exemptions
on security issues: Freedom of House, 2017). Nevertheless, the extent of corruption has not changed for
a long time regardless of these reforms, as this paper reviewed at the beginning. Why did these anti-
corruption reforms fail to reduce corruption in Kenya? What specific factors make anti-corruption reforms
ineffective to reduce corruption in Kenya?
Intellectual puzzle
Scholars of studying the success and failure of anti-corruption reforms have experienced a similar
dilemma and attempted to overcome it. Particularly since the middle of 1990s after the ‘cancer of
corruption’ speech by James David Wolfensohn as the president of the World Bank (World Bank, n.d.),
scholars have actively engaged in analysing what causes corruption and how to combat corruption
through anti-corruption reforms. That corruption study has been traditionally dominated by rational
analysis of institutions and individuals, which scholars categorise as institutional economics. This strand
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of scholars originated to economics scholarship who regard institutions and individuals as rational actors
meaning that they act based on their self-interests for maximising their benefits (as such
characteristics of human behaviours are represented as Homo Ecnomicus). They use principal-agent
theory, as Rose-Ackerman (1978) initially explored in the introduction of a book, Corruption: A Study in
Political Economy, as follows:
‘The “agency” relationship is the basic unit of analysis. The relationship links at least two
actors. On the one hand, the superior [principals] expresses a set of preferences which
specify desired outcomes. On the other hands, there is the agent, whom the superior has
directed to achieve there outcomes. Thus democratic legislators are the agents of voters;
agency heads, of legislators; and bureaucrats, of agency heads. (p.6)
In that theory, whilst principals monitor and punish agents’ corrupt activities for public gains, agents are
likely to act for escaping these monitoring as well as punishments and use their delegated authority for
personal benefits due to ‘structural incentives’ (Rose-Ackerman, 1978, p. 5) which they have. Kiltgaard’s
(1988) successfully summarised that idea into one formula as ‘Corruption equals Monopoly plus
Discretion, minus Accountability’ (p.75).
Considering Rose-Ackerman’s idea or Kiltgaard’s equation as anti-corruption tools, it is needed for
agents to have less manageable resources (monopoly) and higher risks for punishments (discretion and
accountability) from institutions in order to reduce corruption by agents. For example, Kunicová (2006)
claimed, from a literature review on the types as well as nature of institutions including theories of veto
players that closed-list proportional representation, federalism, and presidentialism are institutionally
prone to corruption.
On the contrary to studies from this perspective, many actual reforms based on the approach have not
succeeded, and the majority of developing countries still struggle to fight against corruption. Starting
from Lambsdorf’s (2006) contribution, scholars called neo-institutional approaches started to examine
other causes of corruption that can explain the persistence of corruption despite reforms against it. They
opposed that ‘individuals’ honesty or dishonesty can be assumed to be fixed exogenously; instead,
whether an individual decides to remain “clean” or engage in corrupt behaviour is a function of
interactions between individuals’ (Hellmann, 2015, p. 5). In other words, they disagreed with
assumptions among institutional economists which are based on rational individual’s behaviour in
political-institutional settings. Furthermore, they criticised institutional economics in terms of the views of
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principals. Perrson et al. (2013) claimed that academic and practitioners begin to realise that there are
no principals in highly corrupt countries in practice, arguing that institutional economists’ theory is
possible only when there are principals who are willing to act for anti-corruption.
As alternatives to solutions proposed by theories of neo-institutionalism found, from theories of either
rational or normative institutionalism, that principals thought to act for public gains rather than personal
ones do not operate monitoring or sanction mechanisms due to domestic social norms (e.g., Batory,
2012), principals’ political interests, or how others behave (collective action dilemmas) (Perrson, et al.,
2013). Batory (2012) found ‘that both incentives and normative judgments are skewed towards non-
compliance with anti-bribery laws’ (p.66) from case studies in Central and Eastern Europe with a variety
of secondary survey data. Perrson et al. (2013) argued that principals can be corrupt as well as agents in
countries where the level of corruption is high because of how other behaves, which Johnston (2014) call
‘first-order collective-action problem’ (p.15).
In addition to that attempt, there is another strand of studies in neo-institutional approaches to overcome
failures of anti-corruption reforms. This strand of neo-institutional approaches critically points that
previous studies from institutional economics as well as many scholars of neo-institutional approaches
failed to include informal institutions in their analysis. As well as the argument by new institutionalism in
political science that informal institutions (such as ethnic-based community) can complement, co-exist,
compete with, or substitute for formal institutions (Helmke & Levitsky, 2004), they argued that irrational
aspects of human behaviour affected by informal institutions may give an impact on the failure of anti-
corruption reforms.
Rationale and focus
This dissertation, with these discussions in mind, will seek to analyse and find the possible reasons
which have influences on the success of anti-corruption reforms in Kenya. Kenya is chosen as the
country to be examined because of the variety of anti-corruption efforts and failure of these reforms over
time. Also, Kenya is one of the few countries which there are relatively large amount of available
information on corruption itself as well as anti-corruption reforms, as Bachelard (2010) explains Anglo
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leasing scandal as one of the rare cases which, ‘unlike most cases of grand corruption in Africa, which
remain in the shadows, … is well documented’ (p.191). Records in the National Assembly in Kenya
(Kenya National Assembly, 2012) and Insider’s records are available as well (e.g., Wrong, 2009).
Considering new theoretical lenses to the case of Kenya having such rich and variety of information
enables scholars, not just to find what affects the effectiveness of anti-corruption reforms in Kenya, also
to examine the effectiveness of neo-institutional approaches to explain the failure of anti-corruption
reforms in developing countries.
Within a range of types of corruption, this dissertation will specifically focus on looting corruption as well
as land corruption in Kenyan land (patronage) as defined in the following. That is because corruption
which is often just quite broadly defined as abuse or misuse of public power for the personal use
includes many types of corruption which it is quite challenging to deal with in one study. Small-scale
corruption often referred as petty corruption includes vote buying (i.e., vote, abstention, or turnout
buying depending on voters’ political preferences and whether they apt to or not to vote) in exchange of
jobs and small amounts of bribe payment to public officers for service (Nichter, 2014), whereas big-scale
corruption so-called grand corruption includes closed tendering, which shields the awards of
enormous amounts of taxpayer money to select companies that may not necessarily offer the lowest bid
(Gathii, 2009, p. 412), as well as large amount of bribery, embezzlement or other corruption offence
(Transparency International, 2016). In addition, these types of corruption are selected because these two
types of corruption are significant issues yet have not been actively analysed from anti-corruption
students. Whilst the failure of overall anti-corruption reforms regardless of subsequent reforms is broadly
examined by scholars (Perrson, et al., 2013), the question on why anti-corruption on specific types of
corruption so often fails have not well researched regardless of pieces of work on land reforms and Anti-
Corruption Agencies (ACAs). In addition to the fact that these types of corruption is pervasive in Kenya,
these two (see the following definition and Chapter2), the existence of a variety of corruption and lack of
active analysis of the two types of corruption, are the reasons why my dissertation will mainly focus on
rather than anything else.
The following is the simple summary on the definitions of each term:
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Looting is defined as corruption, which ‘involves payments made by the government to
individuals or corporations of monies for goods and services that are never delivered’ (Gathii,
2009, p. 412). As Mutonyi (2002) noted, this type of corruption is likely to give a negative impact
on microeconomics in the country. In Kenya, there is this type of corruption happening on a
frequent basis: represented by Goldenberg, Anglo leasing, maize, National Youth Service,
Standard Gauge Railway, and Eurobond scandal.
Patronage: although sometimes it is used similarly as vote buying, clientelism, or
neopatrimonialism, it is defined as an ‘incentive system –a political currency with which to
purchase political activity and political responses’ (Sorauf, 1960, p. 28). Patrons provide
contracts, employment, or revenues to clients as ways to purchase them. For example,
discerning acknowledgement of rights and budget redistribution are used as patronage (Utas,
2012). Patronage is different from vote buying in that it is more likely to represent small cash
payments or provisions of services. Nichter (2014) visually illustrated that only a small number of
academic papers regard corrupt employments as vote buying, whilst all of them consider small
cash payments as vote buying. In Kenya, unequal distributions of land according to providers’
ethnic belongings is often used as a way of patronage (land patronage).
Study aims, objectives, and outline
Study aims and objectives of this dissertation are the following.
Study aims:
To analyse why anti-corruption reforms on land patronage as well as looting corruption so often
fail in Kenya
Study objectives:
To examine whether the success and failure of anti-corruption reforms are explained through
theories of neo-institutional approaches
To investigate what factors give an impact on the success and failure of the anti-corruption
reforms land patronage and looting corruption in Kenya
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This dissertation will proceed as follows. This study will begin from Chapter 2 by reviewing anti-
corruption reforms in Kenya since its independence. History of anti-corruption reforms on corruption in
the land in Kenya and looting corruption (ACAs, the position of Permanent Secretary for Governance
and Ethics, and the land reforms) will be provided. This will be followed by defining the ‘success’ or
‘failure’ of anti-corruption reforms with traditional and recently-innovated measurement tools as well as
other researched findings. Chapter 3 will be the main part which identifies possible reasons that may
affect anti-corruption reforms on land and looting. This will include the discussion on theories,
framework, and Kenyan case analysis of each potential factor.
Summary
Corruption in Kenya widespread from local to national level. It includes small cash payments, land
patronage, or looting corruption. These types of corruption persist regardless of subsequent reforms
done from the end of the colonised period. Traditional approaches (loosely termed institutional
economics) to anti-corruption faced the same difficulty, yet recent scholars argue the assumptions they
make explain only part of corruption happening in developing countries and they attempt to have more
convincing explanations such as through the prisoner’s dilemma model. Reflected on Kenya’s many
reforms and these failures as well as relatively well-documented corruption scandals and records in the
process of policy-making, this dissertation will critically analyse why anti-corruption reforms on land
patronage as well as looting corruption so often fail in Kenya (particularly focusing on land patronage
and looting corruption).
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CHAPTER 2: ANTI-CORRUPTION REFORMS IN KENYA
Kenyan government attempted to tackle corruption on looting and land patronage through mainly the
Anti-Corruption Agencies, but also, in terms of land patronage, tried to combat this type of corruption
through Kibaki’s order on investigations on land patronage in the Moi presidency as well as the land
reforms around 2010. This chapter will take a look at each reform and the underlying ethnic contexts in
Kenya since the colonisation. It will be followed by a review on the extent of success of these reforms in
order to have deeper understanding on subjects of the analysis in this dissertation.
History of anti-corruption reforms in Kenya
Until the Establishment of the Kenya Anti-Corruption Authority (KACA)
The origin of KACA traces back to the establishment of the Anti-Corruption Squad in the Criminal
Investigation Department of the Police Department in 1993. On the contrary to the expectation to look
‘into the issue of high-level corruption among corrupt Government Officers’ (Mutonyi, 2002, p.21;
originally from Cartoon humorist, The Daily Nation, 28th October, 1997), it was dispersed in 1995 without
giving any influence on reducing corruption, after credible sources revealed that officers in the Squad
‘received bribes from those they are investigating’ (Kibwana, et al., 1996, p.218; originally cited in East
African newspaper on 23rd June, 1995). However, a massive corruption scandal around the year
Goldenberg scandal soon gave a huge pressure to the government in Kenya to establish alternative
anti-corruption authority for combatting corruption including looting. Goldenberg scandal was one of the
biggest corruption scandals in the history of Kenya, which Goldenberg International and top politicians
including Vice President and Minister of Finance transferred funds on exchanges of ‘foreign currency
earned into Kenyan shillings’ with no transparency and no evidence of exporting golds and diamonds
which Kenya can produce few amounts of (Branch, 2011, p. 219; Gathii, 2009). To the scandal, as Gathii
(2010) effectively reviewed with sources from Daily Nation in 1993-5, top politicians actively attempted to
close the discussion regarding the scandal: the chairman of the Public Accounts Committee closed the
motion on the scandal by claiming 'there had been nothing irregular or illegal in Goldenberg's operations'
(Gathii, 2009, p. 431); the Attorney General refused to prosecute those who are suspected to involve the
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scandal due to 'incompleteness of investigations and lack of evidence' (Gathii, 2009, p. 433). Observed
such political reaction to the scandal which International organisation and donor governments do not
expect Kenyan government to do strongly condemned the affair and pressured Kenyan government to
act against corruption through suspending aids. They decided to suspend offerings of aids to Kenyan
government as a counter-reaction to the lack of active investigation of the scandal as well as
institutionalisation of anti-corruption authority (Hornsby, 2013).
Reflected on the scandal and reaction from the West, the government of Kenya decided to establish a
new anti-corruption authority. In 1997, the Prevention of Corruption Act was amended in order to
establish KACA, and the president appointed John Harun Mwau as the director of the KACA. Although it
succeeded to investigate cases including corruption on daily land service in City Hall which caused
lower-quality roads and insufficient services, investigation of more prominent corruption cases
immediately led the Authority to face difficulty to sustain the institution (Hornsby, 2013; Gathii, 2009): not
only the Attorney General refused to prosecute the cases on Kenya Revenue Authority (Gathii, 2009),
but also John Harun Mwau was removed from his office in 1998 with intentions to pass an amendment of
the Prevention of Corruption Act (Mutonyi, 2002; EACC, n.d.; UNDOC, n.d.). KACA investigated cases
for two more years directed by Aaron G. Ringera, yet KACA was finally regarded as unconstitutional and
lost legal foundation in 2000 through the case of Gachiengo V Republic (2000) 1 EA 52(CAK) which
concluded that 'the existence of KACA undermined the powers conferred on both the Attorney General
and the Commissioner of Police by the Constitution of the Republic of Kenya' (EACC, n.d., paragraph 9)
Anti-Corruption Reforms at the Beginning of the Mwai Kibaki Presidency
It was not until the beginning of Kibaki’s presidency that the next active anti-corruption reform aiming to
tackle corruption on looting or patronage was attempted. After the collapse of KACA, the Anti-Corruption
Police Unit (ACPU) was set, yet little independent actions were taken by the ACPU due to its institutional
setting ACPU under the police department (Hough, 2013). Kibaki, in turn, ostensibly attempted to ‘give
the impression that it was taking the initiative in fighting corruption’ (Hough, 2013, p. 66) unlike the
previous Moi regime. In the speech in the parliament as the president, he clearly declared willingness to
fight against corruption in his presidential regime:
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Corruption is one of the most serious problems Kenya faces. It has undermined our most
important institutions and tarnished our reputations as Kenyan leaders. This is going to
change. As President, I intend to lead this change. Corruption, they say, starts at the top.
Now the fight against corruption in Kenya will start from the top. (Italic original; African
Minds, 2015, p.12)
As concrete policies, Mwai Kibaki firstly created a new post for anti-corruption: a presidential advisor on
anti-corruption. Mwai Kibaki asked John Githongo to seat the position, and, based on experiences in TI
and the other NGO (Series for Alternative Research in East Africa), John accepted his job as a
presidential advisor with hopes that ‘since corruption started at the top, it could only effectively be fought
from the top’ (Wrong, 2009, p. 17). John had his jobs of collecting information on corruption from
citizens, telling the information to the president, and assisting the president regarding on anti-corruption
comfortably and intimately as if his position is ‘an NGO at the heart of government’ (Wrong, 2009, p. 35).
Secondly, the Kenya Anti-Corruption Commission (KACC) was established in 2003, based on two bills
enacted on the year: The Anti-Corruption and Economic Crimes Act and The Public Officer Ethics Act.
John assisted the initial activities of the newly established anti-corruption institution, and the commission
includes main elements suggested by the United Nations Convention against Corruption, which Kenya
ratified first in the world (Wrong, 2009; Hope Sr, 2011). Anti-Corruption and Economic Crimes Act aims
to engaged in the following activities through KACC:
Investigate corrupt conduct and activities;
Recommend for prosecution persons suspected of corruption;
Prevent the occurrence of corrupt practices;
Advise public institutions on how to eliminate corruption;
Educate the public on the dangers of corruption;
Enlist and foster public support in fighting corruption and economic crime;
Bring civil cases in court for recovery of public property, or for forfeiture of unexplained
assets
(Wachanga, 2008, p. 675)
Although John was forced to resign after Anglo Leasing scandals, KACC kept its form until its
replacement with Ethics and Anti-Corruption Commission (EACC) in 2011. In 2011, EACC was
established by the Ethics and Anti-Corruption Act based on the statement in Kenya's Constitution of
2010 (chapter 79) which asks the government to 'establish an independent ethics and anti-corruption
commission' (National Council for Law Reporting& the Authority of the Attorney Genera, 2010).
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Despite expectations by John from 2003 (Wrong, 2009), the power to prosecute is still not given to the
commission and in the hands of the Attorney General as well as the previous anti-corruption agency
(KACC). Activities of the commission were similar to of KACC, except EACC adds measurements of
corruption as an activity of EACC:
(a) educate and create awareness on any matter within the Commission’s mandate;
(b) undertake preventive measures against unethical and corrupt practices;
(c) conduct investigations on its own initiative or on a complaint made by any person;
(d) conduct mediation, conciliation and negotiation; and
(e) hire such experts as may be necessary for the performance of any of its functions.
(National Council for Law Reporting& the Authority of the Attorney-General , 2011,
Section 13)
Ethnicity in Kenya: Backgrounds
Ethnicity in Kenya has been a substantial political issue since the colonisation. Whilst different ethnic
groups interacted and traded each other (e.g., Luo and other Bantu groups) in the pre-colonisation
periods (Ogot, 2012), senses of belongings to specific ethnicity started to invented after British
colonisation. It is argued that ethnicity began to be invented not only due to British colonial policy,
namely ‘divide and rule’ policy, but also due to ‘an African response to radical changes in the socio-
economic and political environment (Ajulu, 2002, p. 252; Ogot, 2012). Indeed, in 1937, Jomo Kenyatta
the first president of Kenya from 1964 after the independence wrote a book called Facing Mount Kenya
on what would be regarded as the Kikuyu culture, which he explored the origins of Kikuyu ethnic group
and its customs including education, marriage, religion, and medical practices (Kenyatta, 1967).
This notion and solidarity of ethnicity began to be politicised after the process of the independence. As
Ogot (2012) expressed effectively, different ethnic groups debated over the following questions: ‘Who
would control the nation-state and take over the apparatus of power and wealth created for the purposes
of colonial oppression and exploitation? Who was to inherit the settler economy and to what purpose?
Who would own Kenya? (Ogot, 2012, p. 109). Despite the fact that they agreed to allow each ethnic
group to have some extent of local autonomy, Jomo Kenyatta as one may easily infer from his book in
1937 prevented to do so through non-distributions of budgets, bills to take powers away from local
government (Ndegwa, 1997). The tension among ethnic groups became fierce further in the next Moi
presidency. He, especially latter half of his presidential terms, ruled Kenya largely in favour of his
17
ethnicity (Kalenjin: one of the minority groups in Kenya). According to the data collected extensively by
Hornsby (2013), Moi’s cabinet in 1998 included no Luo (second largest ethnic group in Kenya) and less
than one-third of Kikuyu (compared with the 1960s). Ethnicity also played a big role in politics in Kenya
after democratisation, as particularly represented by huge ethnic violence after the 2007 Kenyan
elections in the president of Mwai Kibaki, which caused around 600 citizens’ death in total (Cheeseman,
2008). Although 2013 Kenyan election did not cause massive conflict because of ‘peace narrative’ and
devolution (Cheeseman, et al., 2014, p. 2), it is still one of the biggest political issues in Kenya (Boone,
2012; Kibwana, 2019; Barasa, 2019).
Land Patronage and Reforms
The issue of ethnicity and land distribution has been closely linked to each other. Majority of Kikuyu's
land and other ethnic groups' land was reallocated to white settlers at the beginning of the twentieth
century (Mackenzie, 1998), as Cheeseman (2008) analysed that one of the major reasons why conflicts
occurred in 2007 elections was ‘historical grievance over land ownership, economic inequality, and
political exclusion’ (Cheeseman, 2008, p. 167) and John Githongo expressed ethnicity and corruption in
Kenya as ‘are the Siamese twins of our politics (Githongo, 2017, p. 5). Reflected on traditional role land
played for Kikuyu’s male to sustain their status in their families (Wrong, 2009) as well as the invented
notion of ethnicity, Kenyatta started to patronage land taken from white settlers in favour of Kikuyu ethnic
group after the independence (Wrong, 2009; Blundell, 1994). Rather than attempting to solve land
patronage, following Moi presidential regime repeated it in favour of particular Kalenjin (Lynch, 2011),
except some attempts by KACA on City Hall cases. In other words, as Wrong (2009) expressed simply
and effectively, ‘it was now Kalenjin’s turn to ‘eat’ at the trough of the state’ (p.113).
In the presidency of Kibaki, it had efforts to fight against land patronage as well. He ordered a
commission to investigate illegally allocated land and housing in the Moi presidency. As the Ndung’u
Commission’s report, with pieces of evidence of over-1700-pages lists on illegal land allocation
practices, they identified that every politicians, president’s relatives, public and military officers in the
Kenya African National Union (KANU) ruling party in the Moi regime involved in the corrupt activities
regarding to the land (Republic of Kenya, 2004; Hornsby, 2013; Southall, 2005). They concluded that
18
illegal land patronage ‘intensified in the late 1980s and … [l]and was no longer allocated for development
purposes but as political reward and for speculation purpose’ (Republic of Kenya, 2004, p. 8). Wikileaks
also revealed that more than two billion dollars were stolen from the state budget during the Moi regime
through corrupt dealings with more than twenty-five countries (WikiLeaks, 2007). Reflected on that, the
government asked corrupt politicians including former president Moi to pay fines (The Guardian, 2004),
yet this Kibaki’s effort is only to punish those who had corrupt deals in land and does not aim to prevent
land patronage in Kenya. Prevention or reduction of land patronage started in and after the process of
the 2010’s new constitution. Around the year of 2010, three bills were enacted or amended for
preventing land patronage: the 2012 Land Act, Land Registration Act, and National Land Commission
Act. In particular, the National Land Commission Act marked a significant role in Kenyan history, which
states that the commission acts to ‘manage public land on behalf of the national and county
governments’ (Republic of Kenya, 2012, Article 5) in order to prevent using land as a source of
patronage in favour of specific ethnic groups (Boone, et al., 2019). The Commission also takes
responsibility for advising, investigating, and monitoring land-related issues.
Are reforms really failure?
Policy Failures in the process of Implementation
Such majority of anti-corruption reforms on land patronage and looting corruption in Kenya, however,
seemingly failed in the implementation stage or were not implemented effectively and impactfully: Many
implementations of KACA was blocked and disbanded; John did not continue his job after Anglo-Leasing
Scandal. Land reforms were also suspended implementations in many regions or forced to shrink its
responsibilities through the Land Law Amendment Act 2016. As Boone et al. (2019) reviews, the Ministry
of Land blocked to transfer the authority of records of public land and land registries to the National Land
Commission until 2016 (Boone, et al., 2019). Furthermore, as the Land Law Amendment Act 2016 states
as follows, the Amendment Act in 2016 degraded the role of the Commission from land allocation ‘on
behalf of the National or county governments’ (Republic of Kenya, 2012, Section 12(1)) to ‘secondary
role’ (Klopp & Lumumba, 2017, p. 588) to take actions on land allocation based on the request from
national or country government:
19
Whenever the national or county government is satisfied that it may be necessary to
allocate the whole or part of a specific public land, the Cabinet Secretary or the County
Executive Committee member responsible for matters relating to land shall submit a
request to the Commission for the necessary action (Republic of Kenya, 2016, p. 579)
Furthermore, even when there are necessary institutional settings being implemented (i.e., KACC and
EACC: see the Table 1 for the performance of the agencies), existing data shows these do not lead to
less corruption regarding land and looting. Due to the significance of examination on changes in the level
of corruption ‘before and after policy interventions’ (Central European University, 2017) for assessing the
failure and success of the reforms, it is these that this section will review on in the following.
Measurement of Corruption and its Application to the Effectiveness of Anti-Corruption Reforms in Kenya
Scholars in social science, international organisations, and Non-Governmental Organisations started
discussing corruption since the 1990s. During the time, scholars also explore how to measure corruption.
In the process of these explanations, they first needed to explain which countries are more corrupt than
others. Proxy measurement was used firstly to measure corruption at the beginning, yet it cannot solve
many problems regarding the hidden nature of corruption. Instead, expert-based assessments, including
Corruption Perception Index (CPI) which is widely regarded as most important and reliable comparative
Table 1: KACC and EACC’s implementation on investigations
Complaints
received
Investigations
arising from
complaints
Investigation files forwarded to
Attorney General (AG: before
2010 Constitution) / Office of
the Director of Public
Prosecution (DPP: after new
2010 Constitution)
Prosecutions
approved by
the AG/DPP
(number)
Prosecutions
approved by
the AG/DPP
(percentage)
3552
242
0
0
0%
3234
384
35
23
65%
7888
1150
84
70
83%
8188
1611
111
70
63%
4485
1232
86
70
81%
4335
1270
122
87
71%
4372
1281
104
75
72%
7106
2445
134
95
70%
5250
2183
89
54
60%
3355
1668
32
28
87%
4006
1950
68
44
64%
5660
2747
117
N/A
N/A
7929
3856
167
136
81%
8044
3735
143
110
77%
6235
2898
183
135
74%
Source: AfriMAP (2015) p.41; added recent available data from FY2013/2014 by the author based on the
recent available information in EACC. (EACC, 2014; EACC, 2016; EACC, 2017; EACC, 2018)
20
corruption indicators (Andersson, S & Heywood, 2009, p. 755; citation originally from Transparency
International, 2005) as well as World Governance Indicators (WGI) developed later by Daniel Kaufmann,
started to be used as main indices for measuring the extent of corruption . Both expert-based
assessments are subjective assessments of corruption in public sectors by experts. The main strength of
these assessments is that scholars can compare the extent of corruption across the states. For example,
although they have possibilities to overestimate the incidence of corruption based on their ideologies
such as ‘low tax and minimal regulation’ (Heywood, 2015, p. 144; see also Razafindrakoto & Roubaud,
2006), CPI and WGI can show hidden corruption which is not likely to be reported by other survey-based
measurements (i.e., surveys of experience of corruption to individual /organisation or subjective
perceptions of corruption of citizens). As Sequeira (2012) points out, ordinary citizens can underreport
the extent of corruption since they cannot notice the existence of hidden grand corruption.
In addition, the assessments allowed scholars to compare corruption in different states. As these
indicators provide specific numbers to corruption to almost all countries in the world, they could boost
their statistical research on corruption itself as well as relationships between corruption and other socio-
economic issues. For example, Treisman (2000; 2007) sought to find a correlation between corruption
and economic development as well as corruption and institution. As such, these advantages attracted
public and scholastic attentions as a famous measurement of corruption.
In the case of Kenya, WGI chosen as a better way of comparison rather than CPI due to changes of
the measurements of CPI in 2012 shows (Graph 1) corruption in Kenya has not reduced since the end
of the twenty-first century. Whereas some countries in East Africa (Rwanda and Uganda) showed
improvement dramatically on control of corruption (although Uganda experienced big drawbacks as
well), Kenyan anti-corruption reforms have little impact on the perception of corruption in public sectors.
After anti-corruption reforms in the Moi regime from 1997, the Kibaki regime from 2002 to 2013, and
Uhuru Kenyatta regime since 2013, scores of control of corruption do not change significantly. Similarly,
CPI also showed similar results in Kenya: 2,21 in 1996; 2.1 in 2000; 2.1 in 2005; 2.1 in 2010 (Max. 10);
25 in 2015 (Max. 100) (Transparency International, 1996; 2000; 2005; 2010; 2015).
21
Source: World Governance Indicators: Control of Corruption (Percentile Rank) 1996-2017
One might argue that these expert measures cannot capture what specific kinds of corruption in Kenya
(i.e., corruption regarding land and looting corruption) as CPI gathers perception of the following kinds of
corruption:
Bribery
Diversion of public funds
Prevalence of officials using public office for private gain without facing consequences
Ability of governments to contain corruption and enforce effective integrity mechanisms in the
public sector
Red tape and excessive bureaucratic burden which may increase opportunities for corruption
Meritocratic versus nepotistic appointments in the civil service
Effective criminal prosecution for corrupt officials
Adequate laws on financial disclosure and conflict of interest prevention for public officials
Legal protection for whistleblowers, journalists, investigators when they are reporting cases
of bribery and corruption
State capture by narrow vested interests
Access of civil society to information on public affairs(Transparency International , n.d., p. 2)
However, corruption regarding land and looting still seem to continue from other qualitative studies and
recent survey researches, which shows the failure of anti-corruption reforms in Kenya. In terms of land
corruption, although Kibaki successfully investigated some politicians or families of Moi on land
patronage at the beginning of his presidential term, Klopp (2012) identifies democratisation in Kenya did
0
10
20
30
40
50
60
70
80
1996 1998 2000 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
Graph 1: Control of Corruption in East Afircan Countries
(x axis: year; y axis: control of corruption)
Kenya Uganda Tanzania Rwanda Burundi
22
not improve the level of governance in Kenya and, actually, worsen the extent of patronage because of
‘more competitive elections [which] produce stresses on these patronage networks’ (p.351), which was
effectively revealed from a well-researched data collected through an extensive literature of academic
journals, World Bank reports, and news sources in Kenya, as well as interview to local activists, about
patronage and deforestation in Kenya. That claim was also supported by Boone’s study, showing that
‘politi-clans manipulated land rights to mobilise supporters and punish opponents’ (Boone, 2011, p.
1311) from her extensive study with interviews to local public servants. Although there are few pieces of
research on patronage after the Kibaki regime, the recent Afrobarometer survey newly asked questions
on perception of corruption implied that land is still a source of corruption in Kenya including patronage,
as it revealed that, even after the land reforms in the last ten years, more than thirty per cent of citizen
perceive ‘that an ordinary person could pay a bribe or use personal connections to get away with:
Registering land that does not belong to them’ (Afrobarometer, 2018a) and more than eighty percent of
citizen perceive that rich person could do that (Afrobarometer, 2018b). Direct measurements of
corruption, in addition to these, which are useful to complement the lack of specific measurements of
corruption and shortages of perception-based measurements by experts, also identify similar results.
Although exact figures of land patronage have not been found due to its hidden nature, existing data of
direct measurement shows systematic land corruption issues. Recent results of the East African Bribery
Index concluded that land services are the second-most prone institution to corruption, revealing that
more than 40 per cent of people experienced bribe payment to land services (Table 2)
As for looting, it is quite challenging to measure the real number of looting corruption due to its hidden
nature. However, in the case of Kenya, not only CPI or WGI suggest high possibilities of corruption in the
public sector in Kenya, but also frequent scandals on looting corruption regardless of reforms over time.
As noted in the introduction, they include Goldenberg scandal in the Moi regime; Anglo leasing and
maize scandal in the Kibaki regime; as well as the National Youth Service, Standard Gauge Railway,
and Eurobond scandal in current Uhuru Kenyatta regime. A case in point is Anglo leasing
Table 2: East African Bribery Index (Land Service in Kenya)
2010
2011
2012
2013
2014
2017
51.3%
46.9%
70.0%
46.7%
55.0%
41.7%
Source : Transparency International Kenya, 2010; Transparency International Kenya, et al., 2011; 2012;
2013; 2014; 2017
23
scandal, regardless of the establishment of KACA (KACC from 2003) and relatively active efforts on
reducing corruption in the president of Kibaki, which was reported by John Githongo in 2004. That
scandal revealed inflated contracts cost 32 million Euros between the Kenyan Government and Anglo
Leasing Finance Limited during the Moi and Kibaki Presidency (Global Witness, n.d.) ( Stolen Asset
Recovery Initiative, 2012). That is also the case after the recent reforms. Since the replacement of KACC
to EACC, looting corruption scandals has frequently been happening: National Youth Service scandal,
Ministry of Devolution and Planning’s purchase of ‘sex toys … over-priced condom dispensers,
stationery, photocopiers and a piano and television’ from the public budget (BBC, 2015); Standard
Gauge Railway, providing National Lands Commission a free hand to spend public money without
putting in place documents needed for accountability’ which lost more than Sh4 billions of public money
(Wafula, 2018, paragraph 8); Eurobond scandals, missing Sh215 billion controversial Eurobond funds in
Kenya which was allocated to ministers including the Ministry of Water and Irrigation from 2014 (Wafula,
2016).
Summary
This chapter reviewed anti-corruption reform on looting and land patronage with providing a review on
the ethnic background in Kenya since the colonisation. This was followed by a review on the extent of
success of these reforms in order to provide enough background for a deep analysis on anti-corruption
reforms in Kenya later in this dissertation. Through the review, this dissertation not only showed that
many reforms regarding looting and land patronage (i.e., KACA, John’s role as an advisory position to
the president, and land reforms) failed in the process of implementation, but also pointed that seemingly
successful implementations of KACC and EACC will also be regarded as failure cases, because they do
not give any positive impact on reducing corruption both as a general level and as specific level to land
corruption and looting.
24
CHAPTER 3: ANALYSIS
This chapter will critically analyse key potential reasons variety of political interests to foreign aids for
international actors, collective action dilemma for Kenyan citizens, lack of political will, and weak
institutions with theoretical discussions and some specific analytical frameworks.
Reason 1. Lack of interests for foreign aids lead anti-corruption is likely to explain why anti-
corruption reforms so often fail
The first possible reason which can contribute to explaining the failure of anti-corruption reforms in
Kenya is the lack of interests to anti-corruption for international actors. Theoretically, whilst scholars of
institutional economics argue international donors can monitor anti-corruption reforms as principals,
scholars of neo-institutional approaches opposed to the argument by arguing that there are no or little
intentions to monitor anti-corruption in recipient countries. In other words, they have debated whether
international donors have substantial interests to proceed anti-corruption reforms in developing
countries, which institutional economics scholars argue for and neo-institutional scholars argue against
the point.
For instance, as one of the leading scholars of institutional economics perspective on corruption, Rose-
Ackerman (1999) argued ‘if economic and financial crises have been exacerbated by a corruption-prone
institutional structure, international aid can be made conditional on reform even if the government is not
eager for change’ (p.178). In contrast, scholars of neo-institutional approaches claim that the ideal
principal-agent framework does not work because principals (donor countries) do not take care much of
corruption issues in developing countries due to donor’s other prioritising interests. Although it seems
this account has not proved yet by neo-institutional approaches through in-depth qualitative findings,
scholars of international development instead suggest that variety of interests for each country in foreign
aids may affect the interest on anti-corruption. For example, Rahman & Giessen (2017) successfully
pointed, from qualitative in-depth interviews and quantitative research of USAID, GIZ, and EU, that donor
countries act on aids based on either formal interest and informal interest. That is, donor countries not
only take into account donors’ policy preference toward recipient countries which in theory include policy
25
objectives to reduce corruption in the countries but also wider political and economic interests. The latter
includes, according to their research, for example, policies ‘toward free markets’ or the strategies to the
natural resources in the recipient countries (particularly important for USAID) and geopolitical interests
(for USAID, GIZ, and EU). This finding corresponds to Degnbol-Martinussen & Engberg-Pedersen’s
framework proposed in 2003. According to the framework they made, there are four main motives for
international donor countries to provide aids to developing countries: National Security, environmental,
economic, and moral and humanitarian (see Figure 1).
Furthermore, other studies suggest that the complexity of different interests within and among western
donor countries lead different effects for the reduction of corruption. For instance, beyond the previous
studies which focus the only general relationship between foreign aid and control of corruption (Knack,
2001; Tavares, 2003), a short quantitative study by Okadan & Samreth (2012) revealed that, ‘while
multilateral aid has a reduction impact on corruption, bilateral aid from the world’s leading donor
countries, except Japan, but including France, the UK, and the US, has no significant effect’ (p. 243).
Also, Schudel (2008) found that ‘less corrupt donor states [among OECD members] allocate more aid to
less corrupt recipient states than to corrupt recipients, whereas corrupt donor states do not make such a
clear distinction’ (p.507).
National Security
Moral and humanitarian
Figure 1: Main motives for giving foreign aids
(Source: Degnbol-Martinussen & Engberg-Pedersen, 2003)
Economic
Environmental
26
However, these accounts still fail to pay attention to newly emerged non-western donor countries (e.g.,
China, India) which are more and more influential in foreign aids in the last decades. Put differently, how
the increasing number of donor countries from non-west countries can theoretically or statistically affect
the control of corruption? Asmus et al. (2017) answered that question, arguing that BRICS donors ‘have
not committed themselves to align their aid efforts with the DAC’s principles and regulations’ (p.4)
regardless of the 2005 Paris Declaration on Aid Effectiveness which include the extent of corruption in
criteria decided among DAC countries. Although this means neither all BRICS countries provide aids
without any consideration on corruption in the countries (see for example in the Chinese case by Tan
Mullins et al., 2010) nor western donors offer efficient aid than BRICS countries (as argued by Dreher et
al., 2011), the issue of diversification of donors in recent years is also getting one of the discussion
points about the effects of international aids on the effectiveness of anti-corruption reforms.
In short, whereas international donors are supposed to play roles of principals for anti-corruption in
theory of institutional economics, neo-institutional approaches and research on international aids point
the variety of interests for donor counties can affect the effectiveness of monitoring on anti-corruption
reforms. That can also apply international aids in recent years, which newly emerged non-western
countries also started to contribute to international aids as donor countries. Then, the next question to be
asked is how do these theories explain the possible reasons for failure of anti-corruption reforms in
Kenya?
In the case of Kenya, existing primary and secondary sources show that, whereas some donor countries
have interests to achieve the reduction of corruption in recipient countries, countries have their own other
interests rather than reduction of corruption. A case in point is suspensions of aid in and after the
Goldenberg scandal. In-depth analysis of international aid tells us more complicated stories than ideal
principals’ roles in monitoring corruption suggested by the theory of institutional economics or an
ostensive review provided in Chapter 2. On the one hand, some research admit that anti-corruption
became one of the most significant factors for decisions on continuity or suspension of international aid
particularly from the 1990s (UNDP, 2006). International Monetary Fund (IMF) with Finland, Norway,
Sweden, and Danish governments suspended a fund to the Kenyan government in 1991 due to the
scandal and in 1997 because of failure of anti-corruption reforms including Anti-Corruption Squad
27
(Gathii, 2009; Robinson, 1993; Hornsby, 2013). However, other studies show that they have different
interests at the same time, as theoretical studies suggest. Generally speaking, Hornsby (2013) reviewed
that this suspension of aids was enforced partly from anti-corruption but also from other reasons such as
civil disorders due to increasing tensions between ethnicity for next election in 1997 as well as protests
for changes of the constitutions. That is also more specifically explained from each donor’s perspective.
The World Bank report reveals the suspension by IMF in 1997 to Kenyan government was also intended
to warn the slow efforts on ‘structural problems in budget, state enterprise sector, civil service,
agricultural sector institutions not adequately dealt with’ (O'Brien & Ryan, 1999, p. 22). Moreover,
researches revealed that major donor countries had different political interests in addition to anti-
corruption. For example, although the US pressured IMF to suspend the aid in 1997, Hornsby (2013)
succeeded to point the US had economic interests (i.e., liberation) and political interests (i.e., political
competitions without oppressions from the government). Robinson (1993) also pointed a suspicion that
international aid to Kenya includes an aspect of a ’reward Kenyan support during the Gulf War’ (p.63).
Norway in the 1990s is also classified as another example of that account. Norway is claimed that not
only the government considered the extent of corruption, but also the government seriously considered
the situation regarding human rights in Kenya. According to cases and empirical analysis, Norway has a
tendency to consider humanitarian issues in recipient countries (Schraeder, et al., 1998). That was also
the case of aid to Kenya. Human right issues in Kenya ‘had been raised at an early stage’ in the
discussion of foreign aid to the country from the end of the 1980s (Stokke, 1995, p. 172).
It seems to be also the case for the recent decades (i.e., in Kibaki and Kenyatta presidency), and,
arguably, even more complicated interests involved in the decision making on international aid due to the
increasing number of donor countries as theoretical discussion suggests. Researchers found that the US
is keen to assure the American security interests in the region via the provision of aid after the 9/11
terrorist attack. For instance, Lind & Howell (2008) summarized the American aid to Kenya as follows:
The attacks of 9/11, and the background of the US embassy bombings in Nairobi and Dar
es Salaam, intensified the convergence of security strategies and goals with the
objectives and activities of development assistance in Kenya. Security concerns have
crept into the development objectives of many donor agencies in Kenya, reflecting an
intensifying encapsulation of development into the security strategies of leading bilateral
and multi-lateral lenders. (p. 13)
28
In addition, China’s presence to international aid or development to Kenya has been increasing over
years:
‘China, Kenya’s new preferred aid and trade partner, began to invest significantly in
Kenya’s infrastructure, willing to make big investments for long-term returns. These
included … new railway line to Ethiopia to Sudan to export Sudanese oil and import
commodities … [and] a new Nairobi-Thika super-highway and a new teaching hospital.
(Hornsby, 2013, pp. 783-4)
According to the available sources, it seems China does not consider the extent of combatting
corruption. Chinese companies continue to involve the railway project even after it was revealed that
‘how fake compensation claims, double payments, overpayments, inflation of land values and payment
of people whose land was never on the corridor was used to loot taxpayer’s money’ (Wafula., 2018,
paragraph 9) in Standard Gauge Railway construction. Due to limited available analysis and data, the
real intention behind this is unfortunately unclear, yet a comment from Kenyan politicians implies that
Chinese government does not have any intention to monitor combating corruption in recipient countries:
‘You never hear the Chinese saying that they will not finish a project because the government has not
done enough to tackle corruption. If they are going to build a road, then it will be built’ (Tull, 2006, pp.
466-467). With recent ‘The Belt and Road Initiative’ policy in China – ambitious economic policy ‘eyeing
greater international economic influence’ (Huang, 2016, p. 317) in mind, China arguably considers
economic interests rather than (or in addition to at least) achievement of anti-corruption in recipient
countries. It could be applicable to other emerging countries, yet further research is needed to prove that
as well as Chinese case (see Figure 2 in the next page for a summary of analysis in this section).
Reason 2. Collective action dilemma for citizens on combatting corruption are likely to explain
why anti-corruption reforms so often fail
The principal-agent model which institutional economists and some neo-institutional approaches use
proposes that anti-corruption reforms get effective when the reforms are enforced under the monitor by
the citizens. In other words, citizens are expected to be principals against agents (i.e., politicians)
through democratic institutions. Increasing accountability such as through freedom of press empower
citizens to monitor politicians not to involve in corruption including looting and land patronage (Rose-
Ackerman, 1999), which was argued in almost same ways in her updated research (Rose-Ackerman &
Palifka, 2016) However, neo-institutional approaches argue that anti-corruption reforms can be
29
National Security
Moral and humanitarian
Figure 2: Analysis of motives rather than anti-corruption
for giving foreign aids in Kenya
(Source: Degnbol-Martinussen & Engberg-Pedersen, 2003; analysis is based on the author)
ineffective due to the collective action dilemma regardless of citizens’ negative perception of corruption.
This dilemma comes from traditional theories of ‘logic of collective action’:
‘It is often taken for granted…that groups of individuals with common interests usually
attempt to further those common interests. Group of individuals with common interests are
expected to act on behalf of their common interests much as single individuals are often
expected to act on behalf of their personal interests….The view that groups act to serve
their interests presumably is based upon the assumption that the individuals in groups act
out of self-interest…. But it is not in fact true.…[U]nless there is coercion or some other
special device to make individuals to make individuals act in their common interest,
rational, self-interested individuals will not act to achieve their common or groups
interests.’ (Olson, 1997, pp. 1-2)
This is impactfully applied to the analysis of corruption by Perrson, et al. They (2010) argued the
exsistence of collective action dillemmas in citizens’ anti-corruption:
even if most individuals morally disapprove of corruption and are fully aware of the
negative consequences for the society at large, very few actors show a sustained
willingness to fight it. This, in turn, leads to a breakdown of any anti-corruption reform that
builds on the principal-agent framework (p.1)
With these points in mind, it is essential to flesh out the reason behind the dilemma in a bit more detail.
One of the most famous explanation is the collective action dilemma due to rational individual
calculations. Arguably, one of the most important studies in the collective action dilemma for corruption is
Economic
Environmental
US
(1990s)
US
(2000s-)
China
IMF, Norway
(1990s)
30
Rothstein’s work in 2011. He applied the classic classification of two types of collective action –
collective action problems of the first order and second order (Ostrom, 1998). Rothstein (2011)
succeeded to point out two possible reasons for the failure of collective action as principals: Firstly,
citizens are not likely to monitor and act against corruption due to the free-rider situation in which citizens
are likely to avoid taking risky anti-corruption actions; secondly, citizens are not likely to monitor and act
against corruption because of low trust to others and often also because of short-term gains from
corruption (see also a review by Johnston, 2014). The former collective action problem is, not only
claimed theoretically but also supported by comparative statistical tests between OECD and non-OECD
countries (Peiffer & Alvarez, 2016). Testing the relationship between perception of corruption and the
extent of collective action, they found that it has a negative empirical relationship between the two. As for
second, Johnston (2014) pointed out this collective action dilemma is particularly important for fragile
countries, which include mainly post-conflict societies but also societies where ‘the boundaries and
identity of society, basic operations of the state, essential public services, and the day-to-day security of
citizens cannot be taken for granted’ (p.58). Rothstein’s later study in 2013 not only similarly offer a
critical review and critique from the collective action dilemma but also expand Rothstein’s research in
2011. They conducted research on ‘the costs of acting fairly’ (p.458) and ‘the benefits of acting corruptly’
(p.460) with extensive interviews to journalists, public officials, and citizens in Kenya and Uganda
(Perrson, et al., 2013) which this dissertation will use as a main source for analysis in later this section.
In addition to that formal and individualistic explanations, one more critical explanation informal and
group behaviour needs to be mentioned. Whilst accounts from individual rationality have merit, they fail
to address irrationality affected by their informal group affiliations. Marquette & Peiffer (2015) suggested
that possibilities after reviewing existing literature on potential barriers to collective action:
‘having a small group size is often seen as beneficial to finding a resolution to a collective
action problem, and collective action problems are thought to arise when there is no clear
and legitimate leadership that can regulate public or common goods. Moreover, collective
action may also be influenced by particularised trust dynamicstrust extended selectively
to those in close social proximityrather than or in addition to generalised trusttrust in
people generally…. So, it may be the case that the collective goals pursued are those that
benefit a sub-group, like an ethnic group or clan, which could come at the cost of other
members of a superordinate group, as in other citizens of the wider national group’. (p.4)
The case of Kenya shows the theoretical analyses are also applicable to the Kenyan case. In terms of
rational and individual calculation, Perrson et al. (2013), not only constructed a theoretical foundation,
31
found through interviews in Kenya and Uganda
1
that ‘[people do not report because]…they fear to lose
their jobs’(p.459; square brackets and abbreviation original). In their interviews analysis in later sections
on short-term benefits of corruption, they also revealed that perception of corruption which citizens
regard as ‘a system’ (p.461) makes difficult citizens fight against corruption. Although Afrobaromater in
2006 measuring the tolerance to patronage shows this is not a view of the majority of them (‘wrong and
punishable’: 72%), there are indeed around thirty percents of citizens who think corruption as morally
‘wrong but understandable’ (21%) or ‘not wrong at all’ (6%). An anthropology research of Luo community
also points some citizens’ views that ‘No matter what we do, corruption will always be there’, ‘I know
Kenyacorruption cannot be eliminated.’ (Schmidt, 2014, p. 7). Furthermore, a survey to Kenyan youths
revealed that ‘30% believe corruption is profitable; 73% are afraid to stand up for what is right for fear of
retribution’ (Awiti & Scott, 2016, p. 2). These sources are not enough to determine whether rational
individuals’ calculations of collective action are based on risks or benefit of anti-corruption, they support
the theoretical discussion on individual rational views of collective action dilemma in anti-corruption.
In addition, Irrational calculation affected by informal institutions also can be seen in interview sources or
academic research in Kenya. Research by Perrson, et al. (2013) unintentionally included interviews that
family one of the informal institutions plays an important role in citizen’s behaviours against
corruption. They impactfully summarised that ‘many of the interviewees bear witness of a real-life context
in which acting honestly is not only a waste of time, but brings with it considerable “de facto” costs for
individuals at various level of society’ (Perrson, et al., 2013, p. 458). This finding leads to further effects
of a broader informal institution ethnicity. Arguably, citizens who regard members of their ethnicities
(including high-level corrupt politicians) as one big family may reduce the movements against corruption
due to their preference to their ethnic belongings and benefits to specific ethnic groups. Schmidt (2014),
indeed, found that ‘a politician is expected to care for his followers in just the same way as a head of
household (wuon dala) must care for the wives with whom he has become one soul’ (p.9). That, not only
1
Results of interviews conducted by Perrson, et al., (2013) included the cases of Kenya and Uganda.
However, since their paper does not distinguish any interviews based on the two countries in their
introduction, analysis and conclusion, this dissertation uses the information as findings in Kenya.
32
explains why collective action against corruption generally does not occur among citizens, also accounts
why collective action against land patronage which has historically been based on ethnic lines.
Reason 3. Lack of presidents’ political will to tackle corruption are likely to explain why anti-
corruption reforms so often fail
The principle-agent model and critiques to the model are also applicable to narrower relations between
actors. Whilst scholars of institutional economics argue that presidents or leaders can act as principals
and other politicians as agents, scholars of neo-institutional approaches claim that there are no ideal
principals in many developing countries, including Kenya. In other words, according to neo-institutional
approaches, politicians such as those who engage in anti-corruption reforms do not have the actual
political will to the policies because of preferences to different political interests. However, ‘political will’ is
a quite broad and unclear term as Johnston (2017) describes political will on anti-corruption as
‘magical thinking’ (paragraph 1) – and similarly, it is entirely unclear what kinds of political interests lead
politicians to have less political will to fight against corruption. Thus, the following parts of this section
apply Brinkerhoff’s framework to analyse political will. He (2010) proposed seven criteria to evaluate
whether politicians have the political will to do the reform:
‘1. Government initiative.
2. Choice of policy/programme based on technically sound, balanced consideration and
analysis of options, anticipated outcomes, and cost/benefits.
3. Mobilisation of stakeholders
4. Public commitment and allocation of resources.
5. Application of credible sanctions.
6. Continuity of effort.
7. Learning and adaptation’
(Brinkerhoff, 2010, pp. 2-3; detail explanations were excerpted by the author)
Firstly, Government initiative is judged based on which actors take initiatives for anti-corruption reforms:
internal or external actors. He claimed that some internal initiatives are necessary for the reforms.
Secondly and thirdly, he classified Choice of policy/programme based on the degree of balanced
considerations with cost-benefit analysis and Mobilisation of stakeholders according to the degree of
involvement with ‘members of civil society and the private sector’ (Brinkerhoff, 2010, p. 2). Fourthly,
Public commitment and allocation of resources are judged based on to ‘to the extent that country
decision-makers reveal their policy preferences publicly and assign resources to achieve those
33
announced policy and programme goals(Brinkerhoff, 2010, p. 3). Fifthly and sixthly, Application of
credible sanctions and Continuity of effort are evaluated based on positive or negative sanctions and
long-term efforts. Finally, Learning and adaptation are judged based on whether actors ‘actively manage
reform implementation by adapting to emerging circumstances(Brinkerhoff, 2010, p. 3).
In the cases of Kenya, the case with least political will is anti-corruption reforms during Moi presidency.
As this dissertation reviewed, Moi’s anti-corruption reforms Anti-Corruption Squads and Anti-Corruption
Authority were mostly initiated by outside actors and Moi’s reactions were basically just to sustain
international aids (e.g., Gathii, 2009). In other words, the passive causes of anti-corruption reforms from
the pressures of international actors such as through international aids did not motivate internal political
will to fight against corruption. Prosecutions of corrupt public officers are subject to the directions of the
Attorney-General’ (Republic of Kenya, 1997,11B 2I (b); low degree of ‘application of credible sanctions’).
From available sources, there was no ‘public commitment’ of anti-corruption during Moi administration.
According to academic paper on anti-corruption in Kenya, Budget to the Authority is allocated only
approximately Ksh 0. 412 billion (low degree of ‘allocation of resources’: Mutonyi, 2002). In addition to
that, the findings from interviews on relations among stakeholders of World Bank development programs
on ant-corruption (e.g., Transparency International Kenya and mass media) during the year of 2000,
which was conducted in a PhD research, provide more kinds of analyses using Brinkerhoff’s framework
(Haarhuis, 2005):
‘Experts suspected that government actors had exerted pressure on the judiciary to
declare KACA unconstitutional because of its rapidly increasing influence’ (p.68)
‘KACA was declared void and with its demise, civil society had lost its most important
voice mechanism, making the long-term success of its initiatives highly uncertain’
(p.112-113)
The first interview finding on politicians’ pressure to KACA classify as a quite low degree of internal
‘government initiatives’ to tackle corruption, and ‘continuity of effort’. Rather than initiating anti-corruption
from long-term and cost/benefit analysis perspectives, it is clear that Moi presidency just minimally and
passively followed anti-corruption requirements. Then, the second interview finding an impact on civil
society for anti-corruption tells us that the Moi administration did not intend to cooperate with other
stakeholders (low degree of ‘mobilisation of stakeholders’). Furthermore, findings on contribution to
public agenda and involvement to policymaking (Table 3) indicate that Moi Presidency did not consider
34
Table 3: Stakeholders’ Contributions to Policy Agenda and Involvement to Policy
Making as well as the Results of these Attempts
Attempts
Results
Policy
Agenda
Initiation of a debate on KACA’s prosecution powers and its
position in the constitution (2001)
Pending after the
demise of KACA
Input in the new Anti-Corruption and Economic Crimes Bill
(2001-2002), drafting the legal-institutional anti-corruption
framework
Pending
Involvement
Input and decision-making influence in KACA’s nation-wide
Anti-Corruption Plan (1999-2000)
Pending
Technical advice for the AG regarding the Anti-Corruption
Control Bill, the successor of the Anti-Corruption and
Economic Crime Bill
Rejected, pending
Explicit position on the Constitutional Bill (2001-2002), which
aimed to legally entrench KACA in Kenya’s Constitution
Rejected
Source: Haarhuis, 2005, p.114-116
recommendations researched by stakeholders including Transparency International Kenya to make a
new bills on anti-corruption or improve existing institutions (low degree of ‘choice of policy/program
based on technical sound analysis’ and ‘learning and adaptation’).
In respect to political will to anti-corruption during Kibaki and Kenyatta administrations, the Brinkerhoff’s
framework offers analyses that political will of these administrations are still quite limited, despite they (at
least seemingly) have slightly more will to fight against corruption. In terms of political will in Kibali
presidency, Kibaki’s inauguration speech and John Githongo’s involvements to anti-corruption reforms
seem to possess Kibaki’s high degree of political will to fight against corruption regarding ‘government
initiatives’, ‘choice of policy’, ‘public commitment’, and ‘mobilisation of political stakeholders’. However,
his removal from the position indicates that these four kinds of will are limited, and showed that the
administration intends to reform from only short-term benefits (low degree of ‘continuity of effort’).
Indeed, on ‘credible sanctions’, Anti-Corruption and Economic Crimes Act continues not to provide any
prosecution power to KACC, stating that the commission only recommends for prosecutions via
submitting the commission reports (the Republic of Kenya, 2003, section 35 (2)). Also, Kibaki did not
punish ministers involved in the Anglo Leasing scandal through moving them from their offices, which
additionally supports the limited political will from the perspective of ‘credible sanction’. Bachelard (2005)
analysed the possible reasons he did not punish them from interviews and concluded that Kibaki needed
to keep allocating their seats in order to sustain political supports for the later presidential election in
35
2007. Although their ethnic groups (the former Minister for Justice Kiraitu Murungi and former Finance
Minister David Mwiraria from Meru community; former vice-president Moody Awori from Luhya
comminity) had close ties to Kikuyu ethnic group (Wrong, 2009), it had a possibility that theyfelt
betrayed and turned to the opposition(Bachelard, 2010, p. 194).
Furthermore, available data from strategic plans shows that it is expected that they will not be allocated
enough budget to implement their planned projects (Kenya Anti-Corruption Commission , 2006). A
Kenyan newspaper, indeed, warned the actual reduction of budget allocation to the KACA can lead ‘to
fears that their capacity to investigate graft may be compromised’ (Ng'ang'a, 2004, paragraph 1). In
terms of ‘choice of policy’, the discussion on the Land Law reforms shows it is not based on balanced
calculations. The following parliament records reveal that they ended up with the politicians’ contributions
to the land policy through the amendments rather than discussing further including potential serious risks
in the stage of implementation:
‘The Ministry for Justice: …That [the Land Laws amendment] is something that Kenyans
have been looking for, and this law will create opportunity for places such as Mt. Elgon,
the Rift Vakkey, Coast Province and many others. The opportunity for this House to stamp
its name on history is now. (Kenya National Assembly, 2012, p. 42)
In addition to these analyses, several sources show that Kibaki’s political will of learning and adaptation
is also low. The case in point is Kibaki’s attempts to reappointment KACC’s chairman in 2009. Despite
Aason Ringera (KACC’s chairman) had been warned his lack of ability to tackle corruption from
opposition party as well as from the public (Roseleen, 2009), Kibaki continued to try to reappoint him as
the chairman before until his order was denied in the parliament, which was recorded as the first denied
presidential order in Kenyan history (Africa Confidential, 2009).
As for Kenyatta administration, basic analysed results are similar to the case of Kibaki administration.
Kenyatta also showed publicity the will to fight against corruption in his statement in the parliament as
the president of Kenya:
It remains a hard truth that some of our public services are rife with waste and corruption.
That waste threatens the productivity we have so painfully begun to build. I have
appointed a Cabinet Committee to return us to prudence and probity in public service. The
team has already issued a preliminary report, and soon I will give detailed attention to the
proposed measures. I also wish to highlight the over-arching theme that government
spending must be brought under control’ (Kanya Today, 2014, paragraph 75).
36
However, his initiative would be put into questions (mixed evidences on the degree of ‘government
initiative’) from the fact that EACC’s recommendation not to clear 106 leaders to contest the August 8
elections’ in 2017 was completely ignored by the electoral agency (Gitonga, 2017, paragraph 1). His
initiatives further can be classified as limited ones from another evidence that he did not mention any
words on anti-corruption in his inauguration speech (Daily Nation, 2017). Indeed, the following comment
in a summit in Nailobi in 2016 suggests that he has less willing to tackle corruption than he was chosen
as the president: “Corruption is frustrating me. The pressure is on me to do something about corruption
but my hands are tied” (The Star, 2014, paragraph 5).
The finding on Kenyatta’s ignorance to EACC’s recommendation also implies that the government does
not choose policies based on well-researched policy recommendations cooperating with other
stakeholders (low degree of ‘choice of policy/program’ and ‘mobilisation of stakeholders’). The degree of
‘public commitment and allocation of resources’ would include mixed pieces of evidence. It is because,
whilst the government commits to fight against corruption, less amount of annual budget is allocated
than it is planned by EACC to spend in most of the cases (see Table 4). On the application of credible
sanctions, it would also be classified as a low degree. That is not only shown by continued lack of
prosecution power for EACC but also shown by the initial planned high degree of operations by the Land
Commission which ended up with downgraded the responsibility of land allocations. Finally, regarding
the degree of ‘continuity of effort’ and ’learning and adaptation’ will also be regarded as low and mixed
respectively. The government improved the security of tenure in EACC, yet EACC still lack prosecution
power despite continuing criticisms by mass media (Mwangi, 2006). These government’s actions seem
to be one-shot reforms. (see Table 5 for the results of analysis).
Table 4: EACC’s planned expenditure as well as planned and allocated budget from
the government
Fiscal Year
planned expenditure
(Ksh. Milions)
Planned budget
(Ksh. Milions)
Allocated budget (from budget statement data;
Ksh. Milions)
2016/17
2,861.90
2,164
2,800
2017/18
2,905.41
2,280
4,000
2018/19
4,875.00
N/A
2,900
Source: EACC, 2013, p. 35; EACC, 2018, p. 37-53; Republic of Kenya, 2016, p. 9; Republic of Kenya
2017, p. 12; EACC, 2018, p. 37
37
Table 5: Political will summary of the analysis through Brinkerhoff’s framework
Criteria
Moi
Kibaki
Kenyatta
1. Government initiative.
Low
Mixed
Mixed
2. Choice of policy/programme based on technically
sound, balanced consideration and analysis of
options, anticipated outcomes, and cost/benefits.
Low
Mixed
Low
3. Mobilisation of stakeholders
Low
Mixed
Low
4. Public commitment and allocation of resources
Low
Mixed
Mixed
5. Application of credible sanctions
Low
Low
Low
6. Continuity of effort.
Low
Low
Low
7. Learning and adaptation
Low
Low
Mixed
Source: Brinkerhoff, 2010; analysis is based on the author
Reason 4. Weak institutions are likely to explain why anti-corruption reforms so often fail
The final analysis of possible reasons why anti-corruption reforms so often fail in Kenya deals with
broader factors than collective behaviours of individuals the role of institutions in anti-corruption
reforms. The role of institutions has been discussed among both scholars of institutional economics and
neo-institutional approaches. As this dissertation reviewed in the section of the intellectual puzzle,
institutional economists traditionally argue that countries need to have democratic institutions which
reduce monopoly and discretion and increase accountability such as parliament and first-past-the-post
voting systems (Klitgaard, 1988; Rose-Ackerman, 1999; Kunicová, 2006). In contrast, scholars of neo-
institutional approaches argue that it is more important to analyse the strength of each institution for
analysing the success of anti-corruption rather than whether particular institutions are in analysed or not.
According to neo-institutionalists, the discussion of the strength of institutions should not be limited to
post-conflict societies (e.g., Rose-Ackerman & Palifka, 2016) but should be included broader societies in
developing countries including Kenya (Johnston, 2014; Shah & Schacter, 2004). The following of this
section, consequently, will analyse how strong institutions on anti-corruption (land patronageand looting)
are.
However, it is to be noted that the concept of strong or weak institutions is also broad and unclear as
same as the previous analysis of ‘political will’. The following part in this section attempts to overcome
the shortcoming by adopting a specific framework on institutional strength developed by Levitsky&
Murillo’s research in 2009. Based on a claim that ‘taking institutional strength seriously— treating it as a
variable, rather than a taken for-granted assumptionwill help us to build theories of institutions that
38
apply to both the industrialized and developing worlds’ (Levitsky & Murillo, 2009, p. 129), they
successfully developed a comparative framework to classify institutions (see Table 6). The framework
consists of two factors of institutions: stability and enforcement. The former is the durability of each
institution. Here, according to them, durability means both the length of the institutions and changes of
rules on the institutions. The latter is, as the name suggests, ‘the degree to which parchment rules are
complied with in practice’ (Levitsky & Murillo, 2009, p. 117).
Application of this framework with secondary source including NGO’s research, academic papers, books,
and sources from Anti-Corruption Agencies (EACC) provides more than what has been analysed in
Chapter 2. The policy outcomes which were reviewed in Chapter 2 offer essential points of the analysis
with Levitsky& Murillo’s framework. Firstly, the cases of Anti-Corruption Squad and ACPU clearly show
both low stability due to their limited duration and weak enforcement of investigation. Secondly,
weakened implementation through closing the discussion on the scandal and disband of KACA just three
years after the establishment respectively show that weak enforcement and the weak stability (duration)
of KACA. Thirdly, whilst John Githongo was able to recommend anti-corruption policies (high
enforcement), his job did not last long due to pressures during the Anglo-Leasing Scandal (weak stability
in terms of duration). Fourthly, in terms of the enforcement of Land reforms, it is clear that the Land
Commission does not have vigorous enforcement due to the suspended implementations after
enactment of the law and reduced responsibilities after the amendment of Land Law. According to the
framework, the Land Commission also shows that it has limited stability. Although it has been more than
five-year since the establishment of the Commission, its responsibility has reduced through changes of
relevant acts. In addition to these analyses, the framework also provides more in-depth analyses on
Table 6: Levitsky& Murillo’s framework on institutional strength
Enforcement
High
Low
Stability
High
strong formal institutions
stable (but weakly enforced) formal
institutions
Low
unstable (but enforced) formal
institutions
weak formal institutions
Sources: Levitsky, & Murillo, 2009, p.117
39
seemingly well-implemented institutions on anti-corruption KACC and EACC. At first, according to the
framework, the degree KACC’s enforcement and durability would be classified as ‘weak’ rather than
‘strong’. As for durability, although KACC lasted around eight years (2003-2011), security tenure of the
committee members was not given. It is the same for the KACC’s degree of enforcement. KACC’s
investigations recommendations to prosecute rarely target to ‘big fish’ (Lawson, 2009, p. 94). Also, the
information John Githongo collected was not delivered to KACC in order to take further actions for
prosecutions. John Githongo recalled that, once ‘it was clear that Anglo Leasing was “us” – our people’
(Wrong, 2009, p. 177), ‘the atmosphere in State House following day was changed’ (p.177), his position
as a presidential advisor on anti-corruption was replaces with other ministerial position, and he started to
be asked from top politicians to resign via phone calls (p.178).
The institution which had these weaknesses from the establishment was weakened in the amendment in
2007. The government passed the amendment bill in 2007, which prohibited KACC ‘investigate offences
committed before May 2003, when it was set up’ (Rice, 2007, paragraph 2). That amendment clearly
shows the weak degree of both enforcement and durability (in terms of changes of rules). According to
Transparency International’s opinion, the Act was amended to protect politicians from investigation on
past massive corruption scandals such as land patronage during the Moi Presidency, the Goldenburg
and Anglo Leasing scandals:
'By passing this amendment to the Anti-Corruption and Economic Crimes Act, Parliament
has ensured that the perpetrators of corruption prior to May 2003 can raise the proviso
inserted in the Act as an absolute rock solid defence against KACC investigating or taking
any other action against them'. (The Standard, 2007, paragpraph 8)
Secondly, according to the framework, the degree of EACC’s enforcement would be classified as
‘moderate’ rather than ‘strong’. Ethics and Anti-Corruption Commission Act defines the functions of the
Commission including the roles which seemingly have strong enforcement powers: the roles to
‘in relation to State officers―
(i) develop and promote standards and best practices in integrity and anti-corruption;
(ii) develop a code of ethics’ (Republic of Kenya, 2011, Section 11 (1)-a)
‘raise public awareness on ethical issues and educate the public on the dangers of
corruption and enlist and foster public support in combating corruption but with due
regard to the requirements of the Anti-Corruption and Economic Crimes Act, 2003 (No.
3 of 2003), as to confidentiality’ (Republic of Kenya, 2011, Section 11 (1)-h)
cooperate and collaborate with other State organs and agencies in the prevention and
investigation for corruption’ (Republic of Kenya, 2011, Section 11 (3))
40
However, these rules have frequently been prevented from EACC’s practices. To begin with, some
expected actions (recommendations) were ignored in practice: for example, an ignored recommendation
to 2017 elections as analysed in the previous section. An investigation of Ksh 2 billion money against
former ministers (Mwangi Thuita) and counsellor (Allan Mburu) had a possibility to be influenced
negatively by ‘the chair of the parliamentary committee, Adnan Kenan, [who] had tried to extort
money…to slow down the investigation’ (Maina, 2019, p. 36). In addition, EACC 2012/13 annual report
admitted that they face challenges to cooperate with other relevant institutions to fight against corruption
‘due to the absence of national anti-corruption policy to guide the process’ (EACC, 2013, p. xiii).
Although the recent annual report did not mention this challenge (EACC, 2018), few new anti-corruption
policies after the EACC establishment show that this would also be the case in the present enforcement
in EACC. Furthermore, there is a symptom that the government would like to downgrade the roles of
EACC. The amendment states the members of committee was supposed to serve on a ‘part time’ basis
(Republic of Kenya, 2015, p. 147) rather than ‘a full time basis’ (which was stated prior to amendment;
Republic of Kenya, 2011, section 7 (2)). Although it is not enough to judge this fact as the evidence of
‘weak’ durability as of the time of the research due to lack of reports on any negative consequences or
further amendments attempting to shrink EACC’s roles, that shows there is always possibility to turn
current degree of enforcement into weak degree of enforcement in the future.
Similarly, available data shows that EACC would be recognised as less durable than it seems in terms of
the stability of these institutions. The security tenure of the committee members was improved in the
Ethics and Anti-Corruption Commission Act in that the act has the security of tenure (six-year terms)
(Republic of Kenya, 2011, section 7) and only permits that the secretary may be removed by the
commission in specific occasions) (Republic of Kenya, 2011, section 17). However, a case of Mumo
Matemu former KACC’s chairman – indicates that it has a still possibility for the secretary to be
removed from the parliament rather than the committee. A Parliament petition of Mumo Matemu’s
removal from the office for his incapability to fight against corruption was submitted and passed in the
Parliament in 2015 (Mutambo, 2015). At this moment, it is not clear whether this would be judged as
unconstitutional or not in tribunal, since he resigned during the tribunal process (Mutambo, 2015) and the
following secretary (Phillip Kimisu) decided to resign himself due to conflict of interests before being
41
seriously criticised by the public and the parliament members (Leftie, 2016). Yet, one cannot deny a
potential weakness in terms of stability that a current or future secretary will be removed by parliament
rather than the committee in the same way that a research institution suspected from the past anti-
corruption commissions in Kenya as follow: ‘It is strange that most instances of destabilisation, or
threatened destabilisation, seem to coincide with periods when the institution seems to be making
progress on politically sensitive cases’ (AfriMAP, 2015, p. 23) (see Table 7 for the results of analysis).
Table 7: Levitsky& Murillo’s framework on institutional strength: Analysis
Enforcement
High
Low
Stability
High
strong formal institutions
stable (but weakly enforced)
formal institutions
Low
unstable (but enforced) formal
institutions
a presidential advisor on anti-
corruption (John Githongo)
weak formal institutions
Commissions (on Land
patronage or looting)
the Anti-Corruption Squad
KACA
ACPU
KACC
National Land Commission
Sources: Levitsky, & Murillo, 2009, p.117; analysis is based on the author
(Moderate)
EACC
42
Summary
Based on theoretical and analytical frameworks, this chapter analysed four key potential reasons First,
analysis of variety of political interests to foreign aids for international actor showed that international
donors have security, economic, and humanitarian interests in addition to interests to initiate anti-
corruption in recipient countries. Then, this chapter analysed collective action dilemma analysis,
indicating that citizens faced rational dilemma (risks or short-term benefits to act against corruption) and
irrational dilemma (sense of ethnic belongingness). Afterwards, the degree of political will of national
politicians was analysed. Although there seems to have some signs of political will in Kibaki and
Kenyatta administrations, presidents in Kenya overall have low degree of political will to fight against
corruption. Finally, this chapter moved to analyse weak institutions in politics of Kenya, illustrating
different kinds and level of institutional strength as well as a common feature that all of institutions faces
some sorts of stability issues.
43
CAPTER 4: CONCLUSION
Summary of dissertation contributions
In this dissertation, I addressed the frequent failures of anti-corruption reforms in Kenya, focusing on
corruption regarding looting and land patronage. After claiming intellectual puzzle, rationale, focus, and
plans of this dissertation, my research began to provide a literature review on anti-corruption reforms in
Kenya as well as the degree of failure of these reforms. This was followed by analyses of possible four
reasons for failures of the reforms.
One of the main contributions of my work was to propose possible reasons for anti-corruption reforms
regarding land patronage and looting corruption in Kenya. First, a critical analysis not only showed the
interests to the extent of anti-corruption in recipient countries, but also illustrated that diversified political,
economic, and humanitarian interests are also considered in the decision-making process of
international aids. Second, my research supported that citizens face the collective action dilemma to
anti-corruption reforms. My contribution here was twofold: rational individual dilemma based on risk
calculations or short-term benefits against corruption; irrational dilemma as a member of each ethnic
group. Third, in terms of analysis of political will of former and current presidents, my contribution in this
part was to adapt Brinkerhoff’s framework, not to confirm the broad and unclear concept of political will,
but to provide in-depth analysis of components of presidents’ political will. Finally, with Levitsky&
Murillo’s framework on institutional strength, my dissertation illustrated that all anti-corruption institutions
in the past and present have limited or weak durability (as for changes of rules and institutional
sustainability) and also the majority of relevant institutions had limited or weak enforcement.
This contribution may allow now to use so-called neo-institutional approaches of corruption studies to
solve problems with failure of corruption in Kenya. That is because all four possible reasons were
supposed from the notions of critiques of neo-institutional approaches against traditional studies of
corruption. The notions of neo-institutional approaches such as collective action dilemma, lack of
principals’ interests to anti-corruption, different kinds and characteristics of institutions helped to find the
possible reasons. Consequently, another contribution of my work was to find that neo-institutional
approaches are useful theoretical approaches to analyse corruption in Kenya. This, arguably, can be
applicable to other cases in developing countries.
44
Limitations and direction for future work
Further investigations have been left for future work mainly due to lack of data availability. Future work
concerns interesting additional analyses for better understandings on the failure of anti-corruption
reforms in Kenya. This dissertation focused only on looting and patronage, which is not enough to
explain the success and failures of anti-corruption reforms as well as reasons for the failure. Future work
will address this shortage by adding other types of corruption. It is the same for limitation and direction of
future work as for analysis of possible reasons for success and failure of the reforms. Future work needs
to deal with more possible reasons for the failure of anti-corruption reforms. For example, it would be
interesting to investigate the historical effects on anti-corruption reforms. Recent work suggests that
political and economic situations before the mass suffrage (i.e., during colonisation or early post-
independence period until the mid-twentieth century) can give a long-term impact on the corruption in
East Asia (Hellmann, 2017). I believe that it may be possible to extend such an approach to the case of
African countries including Kenya with historical sources (e.g., National Archive for analysis of British
colonies).
In addition, it could be interesting to consider what factors specifically determined each policy on anti-
corruption in Kenya. This dissertation has been mainly focused on four possible reasons, yet further
research with more primary sources is needed for determining the factors which made actors do so.
Such further research includes interviews with relevant stakeholders on donor’s interests in the decision-
making process of international aids and presidents’ political will to fight against corruption. Similarly,
analysis of weak institution may be extended by researching further policy discussion in the parliament.
Although it is quite challenging to collect this kind of primary data, I believe it is possible to collect more
data from diplomats in donor countries, members of parliament, or public officers who worked with the
top-level politicians.
In terms of collective action dilemma, I believe further research needs to explore the relationship
between citizens and other actors (i.e., NGOs, mass media, and academics) for combatting corruption.
My research showed that citizens face irrational and rational dilemmas for combatting corruption. This
analysis may be extended to relations among stakeholders, which arguably can explain how citizens can
overcome collective action via supports from other actors. In that analysis, it would be interesting to
45
collect additional data from citizens or use recent technologies (e.g., social network analysis) to examine
the relationship with each other.
Finally, in order to find the effectiveness of institutional economics and neo-institutional approaches, it is
crucial for future research to extend the cases to be analysed. While the case study method has strength
in that it can conduct in-depth analysis, the method has limited ability to contribute to theory building. In
other words, this dissertation clearly showed neo-institutional approaches are useful theoretical
frameworks for corruption studies, yet it needs further research to answer the questions of whether neo-
institutional approaches are more convincing than traditional scholars of institutional economics (as
argued by, for example, Hellmann, 2015) or they should be regarded as complementary theories (as
argued by, for example, Marquette & Peiffer, 2018) rather than competing theories. With in-depth case
studies of other developing countries or empirical data (if able to collect regarding subjects), future work
may contribute further to the theory building of anti-corruption studies.
I hope this dissertation will help scholars and practitioners on anti-corruption, especially those who
involve the reforms in Kenya, to develop their theories or practices. (14408 words)
46
BIBLIOGRAPHY
Africa Confidential (2009). The row over Aaron Ringera.
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[Accessed 19 Aug 2019].
AfriMAP (2015). Effectiveness of Anti-Corruption Agencies in East Africa: Kenya, Tanzania, and Uganda.
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