Death penalty call worthless in fighting graft

Graft levels in Kenya are at the highest ever. The statistics are there for all to see. Corruption levels have steadily risen over the years, and with it the tolerance levels among the populace. It is also undisputed that our legal system has failed to deliver accountability. It is not a surprise that some politicians, including Nominated Senator Isaac Mwaura and Nyeri Town MP Ngunjiri Wambugu, have voiced plans to introduce legislation to make corruption a capital offence. If they make good their intention, it would be the most useless and worthless effort in fighting graft so far, however populist.

Graft war has not failed for want of stiff punishment. Our laws are adequate to address runaway corruption. The ‘lenient punishment’ in our laws, if applied consistently, are sufficient to turn the tide against the corrupt. Take, for instance, the provisions of the Anti-Corruption and Economic Crimes Act, 2003. Part V thereof creates the offences of secret inducements for advice, deceiving principal, conflicts of interest, improper benefits to trustees for appointments, bid rigging, abuse of office, dealing with suspect property as well as attempts and conspiracies to engage in graft all of which are our bane as a country. Section 48 thereof provides for the penalties for these offences.

The general penalty provided is a fine not exceeding Sh1 million or a prison term of not more than 10 years. What is unique is that the law proceeds to provide for a mandatory fine if, as a result of the conduct that constituted the offence, the accused received a quantifiable benefit or any other person suffered a quantifiable loss. The mandatory fine is fixed as two times the amount of the quantified benefit or loss. The law further states that where the conduct that constituted the offence resulted in a benefit and a loss, the mandatory fine shall be equal to two times the sum of the amount of the benefit and the amount of the loss. 

The incentive for engaging in graft is the personal gain. Removing this gain from the equation means there is no incentive to engage in graft. The law, as far back as 2003, sought to make sure that whenever there was a conviction, the punishment would completely overshadow the gain. In other words, for the billions that are stolen, besides the general penalties, we should be seeing double the amounts in fines. The reason this harsh punishment is never meted is what legislators should address. It is quite clear that capital punishment would remain useless in our statutes if the due process of the law does not result in convictions and for the few convictions, the courts discretion is applied to the benefit of the thieves.

It should then be a no brainer that our problem is not lenient punishment. Our problem is a legal system that has failed to deliver justice for Kenyans. Simply put, corruption pays in Kenya. To paraphrase Nobel Prize Laureate Rigoberta Menchu Tum, impunity has become the very foundation upon which systems of corruption are built, and if impunity is not abolished, all efforts to bring an end to corruption are in vain.

It is not the first time MPs have responded to public outcry by a promise to make it a capital offence. These promises are at best populist to hide the failure of Parliament to discharge its oversight role on the other arms of Government, particularly the Executive.

It should be appreciated that within our constitutional architecture, Parliament is the supreme oversight body. All the key actors in the justice chain report to Parliament. It should be Parliament holding to account the institutions that ensure effective investigation, prosecution, punishment and restitution for all offences committed against the Kenyan people.

This article has not gone to the merits or demerits of the death penalty, which deserves a separate treatment. It has simply illustrated the lack of imagination, or dishonesty on the part of those who promise Kenyans the sun when they cannot deliver the moon.

-The writer is Executive Director, Transparency International Kenya. skimeu@tikenya.org