Is the Ethics and Anti-Corruption Commission suited to fight corruption?

This week the United States Justice Department gave a sterling example of how corruption ought to be fought: by meticulously investigating suspects then initiating prosecution.

There was little political theatre in the investigations of Fifa bosses and the former Speaker of the House of Representatives, Dennis Hastert. I bring these examples not to merely highlight US superiority in its dealings with graft, but to remind us that corruption can be tackled as a matter of law enforcement.

The US does not have an anti-corruption commission. Instead, it has well-functioning law enforcement and investigative agencies, and a judicial system that, for the most part, does a good job of handling corruption cases. And as the example of the former Speaker of the House of Representatives shows, those found guilty face the law, regardless of status.

So why do we have an anti-corruption commission? And do we need an anti-corruption commission? Obviously, the answers to these questions are moot, since we are not going to disband the Ethics and Anti-Corruption Commission (EACC) tomorrow. However, the answers might help us understand why we try to fight corruption the way we do. The clamour for an anti-corruption agency separate from the normal law enforcement agencies was because we admitted to ourselves that public officials were the most corrupt among us. They therefore could not be trusted to investigate themselves.

An independent agency was therefore supposed to have sufficient political independence to go about its business without undue influence from powerful politicians in government. However, as we are wont to do, we set up a commission whose proper function was predicated on the goodwill of the president and senior government officials. And because of that we failed.

Unfortunately, the lessons from the late 1990s and early 2000s were not learned. After we inaugurated the new Constitution in 2010 we established the EACC as an independent state agency with powers to investigate but not prosecute. The latter powers were still in the hands of politicians, through the office of the Director of Public Prosecutions (DPP).

Again here, the proper functioning of the EACC was predicated on the goodwill of its officeholders and the DPP. There were no incentives created for the EACC to fight graft, since no matter how good its investigations, cases could always die a slow death in the DPP’s office, or in our corrupt courts. Having an independent commission gave us false security that we were fighting graft.

But the reality was different. As recent events have shown, the very commissioners that we entrusted with the duty to fight graft were not beyond reproach. Elevating corruption to a special category also served to lessen the severity of the crime in our minds. In addition, by politicising the crime, we gave our corrupt public officials cover. From the way we talk about corruption in public, you would think it is a victimless crime.

We talk of billions of shillings stolen, or thousands of acres of land grabbed, and stop there. No one takes the next step to investigate and quantify the human cost of these acts. How many children die every day because of corruption in different government agencies? No one asks this question. We have come to accept graft as something that politicians do.

So what can we do about the EACC? First, the commission needs to be reconstituted in a manner that makes it truly independent of the political class (both in government and the Opposition). As long as we allow politicians to play political football with the EACC, we shall never make any progress in fighting corruption. They are the ones stealing from us, so they cannot in any way set up a commission that will land them in jail. That is the simple truth. Second, the commission ought to be given ordinary prosecutorial powers.

Making the DPP the sole gatekeeper in the prosecution of corruption cases was a mistake (and if you ask me, I think we should devolve the functions of the DPP). The advantage of doing this is twofold. First, it will provide an incentive for the EACC to see its cases to conclusion.

No longer will the success of a case depend on the actions of another office. Second, it will increase the likelihood of successful prosecution, unlike under the present circumstances in which the office of the DPP can easily be compromised by politicians.

If we are serious about reducing graft in government, these are some of the things we should be thinking about. As I keep saying, the day we land a bigwig in prison for corruption is the day we shall begin to see the decline of the vice.