Why corruption is not a ‘true crime’ in Kenya

The term “true crime” is not a legal term because in law a crime is a crime so long as a specific law declares certain act or omission as such. A true crime usually refers to serious offences such as robbery, burglary, murder and rape which virtually all societies define as criminal.

There are other moral transgressions such as adultery, bhang-smoking, homosexuality between consenting adults and abortion in respect of which controversy rages on whether they are true crimes or matters for personal morality.

Thus in Kenya, adultery may be a serious moral transgression but it is not a crime and so if we heard that a Kenyan woman has been convicted of adultery in Saudi Arabia it would be accurate to say she was not convicted of a true crime.

As far as our moral standards are concerned adultery and abortion are “false” crimes or more appropriately none of them is a true crime. For the record, I am yet to come across a single case of where anyone has been convicted of abortion in Kenya despite its commonness.

Viewed this way, I am of the strong view that, just like abortion, corruption is not a true crime in Kenya at least for the simple reason that a corruption prosecution, let alone conviction, is the exception rather than the rule. On a more serious note, there are three reasons for my conclusion that corruption is not a true crime in Kenya.

Minor transgressions

The first is that it is not easy to define corruption. Majority of legal textbooks and literary works on governance, economics and politics are wont to describe or discuss corruption as a phenomenon, concept or syndrome rather than as a crime or a violation of criminal law. This is not a surprise because the term corruption usually describes minor transgressions like giving chai to the clerk at Ardhi House to “find” your file to serious felonies like stripping the assets of a parastatal.

Accordingly, when the term corruption is used to describe the frequent bribery of traffic officers by lawyers trying to avoid getting late in court in the same breath as the Goldenberg fraud, the term corruption ends up losing essential meaning and ceases to sound or seem like true crime. Secondly, because corruption is the ultimate white-collar crime, it is not easy to investigate it or prosecute suspects. Criminal activities involving use of force, physical presence of the criminal and considerable use of manual labour are usually described by criminologists as blue-collar crimes.

In Kenya, these crimes include robbery, rape, burglary, murder and assault. They are usually committed by the (economically) poor, poorly educated and low-skilled members of society. On the other hand, the term white-collar crime applies to certain non-violent crimes like fraud, cyber-crimes, obtaining money by false pretences and land-grabbing.

These crimes are usually committed by individuals within the middle and upper strata of society who work in professional jobs that originally required them to wear a suit and a shirt with a white collar and today they must be computer-literate and move around with laptops.

White-collar crimes

White-collar crimes are difficult to investigate and prosecute partly because the police are invariably recruited from blue-collared lower classes without sufficient education and adequate technical skills to deal with the sophistication of such crimes.

In Kenya, individuals who commit white-collar crimes are usually referred to as mkubwa, boss or the deferential mzee by those around them. In this scheme of things, corruption is the ultimate white-collar crime of the crème de la crème of society we call viongozi in Kenya.

Remembering that this is the class that makes laws in Parliament and ultimately commands the police, it is easy to begin to understand why corruption is such as special crime in Kenya which must be dealt with in special courts and through a long forensic ceremony that at the end makes the suspect clean and ready to be your next Governor or MP.

Avoid facing justice

Thirdly, the anti-corruption legal framework is skewed in favour of the corrupt and so this is one crime that actually pays off. There is really no stigma that attaches to corruption in Kenya, hence the unforgettable photograph of Goldenberg architect Kamlesh Pattni signing autographs for secondary school girls during the Commission of Inquiry into the Goldenberg Affair at the KICC in Nairobi.

Further, the anti-corruption laws give corruption suspects at least three chances or opportunities to avoid facing justice before a corruption trial court. Before corruption charges are preferred in Kenya, the EACC investigators, the DPP and the High Court must determine that the suspect is “fit” to face the charges.

The EACC investigator is likely to be a white-collared policeman trained in etiquette calling you “sir” or “client” and not “mahabusu wewe” as his blue-collared colleagues call suspects of blue-collar crimes. If the corruption suspect is unable to clear the accusation with the investigator, the EACC will hand over a report to the Director of Public Prosecution who will determine whether EACC did its job well. This is well another opportunity to kill the matter.

Assuming the DPP agrees with the EACC, there is still a final opportunity to stop the prosecution in the special anti-corruption division of the High Court. If all these fail there is the final opportunity with the trial magistrate who earns about two hundred thousand shillings to preside over theft cases of hundreds of millions or billions of shillings.

During such a trial, key prosecution witnesses could be persuaded to stay away or the prosecutor can be induced to bungle the case. In short, the anti-corruption legal framework is designed and primed to set free corruption suspects rather than to punish or jail them.

- The writer is a public law practitioner. [email protected]