Why Kenya faces the danger of state capture by free felons in this election

Interior Cabinet Secretary Fred Matiang’i: There is a danger in electing crooks.  [Stafford Ondego, Standard]

Two months ago, Interior Cabinet Secretary Fred Matiang’i sounded an alarm that intelligence reports showed that unusually high numbers of suspected criminals were planning to contest seats in the August 9 General Election.

He spoke of the possibility of up to 40 per cent of elective seats being won by criminals relying on massive bribery and suspect funds. In his own words: If we are not careful, by the time we are done with this electoral cycle, we would’ve laundered criminals into our elective institutions – even up to about 40 per cent. These include money launderers, “wash wash” players, drug dealers and others because they’re the only ones who can access that amount of money.

Barely two months after CS Matiang’i sounded this alarm, the Ethics and Anti-Corruption Commission (EACC) submitted a report to the Independent Electoral and Boundaries Commission (IEBC) which identified 241 aspirants with ethical and integrity issues relevant for its consideration during the registration of candidates. 

Two things are worth noting about this report and how IEBC has dealt with it.  First, most of these tainted candidates have been nominated by influential political parties and therefore stand a high chance of being elected. Secondly, out of the 241 tainted aspirants, barely 10 have been barred by IEBC from vying for elected office. 

Remarkably, it appears the looming danger of a government run by a criminal cartel does not seem to alarm many Kenyans who are usually quick to lynch a hustler caught stealing a cheap mobile phone. 

Accordingly, there is a high likelihood that a parliament with so many criminal suspects might readily approve the nomination of tainted persons into State offices, including the Cabinet thereby completing the steady criminalisation of the Kenyan State which gathered momentum in the 1992 multi-party elections won by Kanu partly because of using bribery by operatives of YK 92.

Incidentally, Deputy President William Ruto, one of those YK 92 operatives was, until recently, the runaway favourite to become Kenya’s fifth president. Considering the challenges facing Kenyans, the risk of capture of the Kenyan State by organised criminals should worry every patriotic Kenyan.

In their book titled The Criminalisation of State in Africa, Jean-Francois Bayart, Stephen Ellis and Beatrice Hibou explain the gradual transformation of public life from a thieving ruling elite (the kleptocracy) to a public criminal enterprise – a new phenomenon in which the State itself is becoming a vehicle for organised criminal activity as attested by scorched earth plunder of the economy, money-laundering, privatisation of mineral resources, illicit trade, drugs dealing and raids on the national treasury. The authors refer to the resultant political entity as the felonious state.  This good book is written in an academic style but its message deserves to be told in plain language.  Here we go.

In the report submitted to the IEBC by the EACC, so far only Sirisia MP John Weluke has been convicted whilst Mike Sonko, Ferdinand Waititu and Karungo wa Thangwa have been impeached. The vast majority of the tainted aspirants are either facing corruption and other criminal charges or they are the subjects of pending criminal investigations. 

To the credit of Kenya’s law enforcement bodies, virtually every person named in the EACC report is facing valid accusations of committing felonies as opposed to the classic sedition charges of the 1980s when Kanu political opponents were routinely charged with criminal charges based on fiction.

Thus the risk facing Kenya is that State power might be captured by free felons in the sense that they are individuals who have committed felonies but for whatever reasons, the law is yet to catch up with them or it trembles in their wake. 

Thus the term “free felons” describes the politicians and political actors who have committed serious crimes – usually categorised as felonies – but the criminal justice system has not secured their imprisonment with them or they have simply served their imprisonment terms and are now free men and women. To be sure, State capture by free felons is a natural consequence of a dysfunctional legal system and decayed criminal justice system. Two examples will suffice. We start with Germany.

In 1923, Adolf Hitler staged an abortive coup in Munich, Germany, leading to his arrest and trial in 1924.  He used the trial to propound and spread his ideas and turn himself into a celebrity in a country that was awash with anti-Semitic prejudice. At the end of the trial Hitler was convicted and sentenced to only five years in prison, “a sentence often taken as a sign of tacit agreement with his views” according to historian Robert Wilde.

Instructively, Hitler served only nine months in prison during which he wrote Mein Kampf (My Struggle), a book outlining his theories on race, Germany and Jews and reckoned that after all, he could seize power himself instead of playing kingmaker. In 1933, Hitler’s seizure of power triggered a series of events that culminated in the break-out of the Second World War whose horrors bear no repeating.

The second example relates to Jacob Zuma – the charismatic former president of South Africa, who has always been a controversial politician living on the edge of legality. 

In the run-up to the 2009 elections when he was elected as president, Zuma survived jail narrowly on charges of rape and corruption. He was acquitted of rape and barely a month before his election as president, the National Prosecuting Authority dropped corruption charges against him in controversial circumstances. In March 2016, the South African Constitutional Court ruled that Zuma had violated the Constitution by failing to repay the government for money used on upgrading his private residence.

Across the world, free felons have managed to take over power through democratic elections and they are on the verge of doing that in Kenya. The fact that it is now easier in many democracies for big-time felons to become presidents, governors or lawmakers than it is to jail them or keep them in jail is a serious indictment of the criminal justice systems across the world. 

It bears repeating that most probably the Holocaust and even the Second World War might never have happened if the German legal system had appropriately jailed Hitler for his crimes or at least kept him in jail for the five years term of imprisonment. Unfortunately, as other felons queue to seize power in so many countries,  it is not fashionable for many pundits to observe that the circumstances making it possible are strikingly similar to those in the mid-1920s and early 1930s that paved Hitler’s rise to power.

Truth be told Hitler’s hateful ideology and his Nazi Party may not have gained traction had it not been for the combination of economic distress and unfair terms of settlement imposed on Germany at the end of the First World War.

Similarly, in Kenya, the combination of exorbitant sovereign debts, Covid-19 socio-economic ravages, prolonged drought and poor or conflicted economic policies have created a fertile ground for the germination of class wars and anti-dynasty ideologies that have propelled the rise of Ruto’s Hustler Nation. 

An unidentified officer, Hermann Goering, Adolf Hitler, Erich Raeder and Wilhelm Keitel in Compiegne, France, 1940. [Reuters]

In many ways, discounting violence, the Hustler Nation especially in central Kenya bears all the tell-tale characteristics of Hitler’s Nazis in the 1920s. 

Notably, in the same way, that the Nazi Party was the natural home of Germany’s criminals, social misfits, deplorables and desperadoes, the Hustler Nation has given refuge and comfort to everyone with a bone to pick against the society and government and those protesting exclusion from the merry-go-round of feeding off public funds.

Time will obviously tell whether the Hustler Nation will turn into a replica of the Nazi party of the mid-1930s in the event that their United Democratic Alliance (UDA) party wins the presidency in August.

In his celebrated lecture entitled Politics as a Vocation, German Philosopher Max Weber said that there are two ways of making politics one’s vocation: “Either one lives ‘for’ politics or one lives ‘off’ politics”.

Later in the lecture, Weber told his audience: “He who seeks the salvation of the soul, of his own and of others, should not seek it along the avenue of politics, for the quite different tasks of politics can only be resolved by violence”. Considering that violence is the ultimate currency of white and blue-collar criminals, it is easy to see why the vocation of politics is a magnet for free felons. Clearly, in a vocation that requires occasional resort to violence, the free felon has a head-start over the rest of humanity. There are three more reasons why politics is attractive to free felons in a democracy.

First, a political position gives the holder a frontline seat at the local, regional or national level. Such positions confer status and honour to the occupant and sometimes turn the holders into celebrities. For example, the recent recognition of heroes in Kenya shows that politics is the major source of “heroes” although it is not clear whether on aggregate terms the value of the political class is equal to the cost incurred to maintain it.

Secondly, the threshold of entry into the political industry is fairly low in terms of capital, competence, reputation, experience and knowledge. Even after the introduction of minimum education qualifications, university degrees and college diplomas can be secured fraudulently and even outrightly purchased. 

To date, we have so many politicians holding degree certificates who cannot maintain a rational five minutes conversation in English let alone write 140 words of incorrect grammar. In other words, anybody with a fast mouth and five or so million shillings to feed peasants and pay part-time dancers can start “answering” his people’s demand to lead them. Thus politics is a practical alternative vocation for free felons whether blue or white coloured in many a capitalist democracy.

Thirdly, the talents necessary for a successful political career are strikingly the same as those that distinguished felons possess in abundance. When you think about it, the archetypal free felon is a complex alloy of simple-mindedness, nativity, hypocrisy, unscrupulousness, excitable, carefree, daredevilry and quite often a fast mouth. All these, the elements that either constitute or pass for charisma and political smarts. 

Just look at former Nairobi Governor Mike Sonko and South Africa’s Julius Malema, the firebrand leader of the Economic Freedom Fighters (EFF) and member of Parliament. Sonko boasts about how he escaped from prison whilst Malema has been charged with corruption and other serious felonies.

Consider also the fact that whilst Thabo Mbeki was viewed by the masses as aloof and an “intellectual king”, Zuma easily connected with the masses who viewed him as real and charismatic.

Incidentally, Zuma and Malema were such close allies that in his fierce campaign for Zuma to take over first as ANC leader and later as President, Malema even told a crowd that if need be he would “kill for Zuma”. 

Former South African President Jacob Zuma. [Reuters]

Malema was charged with hate speech and found guilty for stating that a woman who accused Zuma of rape had a “nice time” because she had “requested breakfast and taxi money”. In case this reminds you of former US President Donald Trump’s escapades then follow the drift; the free felons have entered the high season across the world! 

From a legal standpoint, a government dominated by the free felons will lead to subversion and, in the worst-case scenario, overthrowal of Kenya’s democratic constitutional order. It should be remembered that broadly the Nazis rose to power in accordance with Germany’s Weimar Constitution but the first thing they did upon ascending to power was to negate its substance as a democratic charter. 

Unless a miracle happens, it appears that the overwhelming majority of the aspirants identified as tainted by the EACC will contest the General Election as candidates and many of them are likely to win. If that happens there will be no doubt that the Kenyan State would have been effectively captured by the free felons and our democratic constitutional order will face grave peril. The question arises. Is the Kenyan State irredeemably condemned to this path of atrophy, self-destruction and eventual collapse?

 The simple and direct answer is No in principle but rather complicated in practice.  Every state and the politico-legal order established by its constitution have a right to exist and to survive. This is the true basis for the laws of treason and other crimes against the established order.  Undoubtedly, Kenya’s 2010 Constitution has established various mechanisms and devices to guarantee its survival and five of these are worth mentioning.

First under Article 3(1) “every person has an obligation to respect, uphold and defend this Constitution whilst sub-Article (2) provides that “any attempt to establish a government otherwise than in compliance with this Constitution is unlawful”. Pursuant to Article 3(1) of the Constitution we should note with appreciation that Mr Okiya Omtatah, who is vying to be the next Senator of Busia County and Joseph Mutua Ndonga, a perennial good governance activist, who is vying to be the Member of County Assembly for Giturai Ward in Nairobi, are two ordinary citizens who have notably taken their constitutional duty to defend our Constitution with verve and gusto.

Secondly, Article 2 read with Article 10 declare the Constitution as our supreme law whose values and principles of governance bind all state organs, state officers, public officers and all persons whenever applying, interpreting, enacting, making and implementing decisions, law and public policy decisions.  These values include the rule of law, democracy, social justice, good governance, integrity, transparency and accountability.

Thirdly, since Article 4(2) of the Constitution declares that “Kenya shall be a multi-party democratic state founded on the national values and principles of governance referred in Article 10”, it logically follows that political parties are the bedrock of our constitutional order. 

Consequently, Article 91 provides, amongst other things, that every political party shall “promote the objects and principles of this Constitution and the rule of law”. 

No doubt these objects and principles include adherence by all political parties to Chapter Six of the Constitution that relates to leadership and integrity. Notably, Article 73(2) (a) provides that the guiding principles of leadership and integrity include “selection on the basis of personal integrity, competence and suitability or election in free and fair elections”.

In practical terms, the Constitution does not permit any political party to be a clearing house of free felons: each party must either accept or be forced to acknowledge that in matters of leadership and integrity, political parties are the first line of defence of the Constitution.

IEBC Chairman Wafula Chebukati. [File, Standard]

Fourthly, the Constitution has established various independent offices and commissions such as DPP, IEBC and EACC and under Article 249(1) they have three objects namely (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism. 

It bears emphasis that these objects are in addition to the specific mandates of those independent offices and commissions.  Sometimes one wonders whether Mr Wafula Chebukati, the IEBC Chairman, has read and internalized this constitutional provision.

Fifthly, Article 165 of the Constitution has established the High Court whose main mandate is to protect the Constitution by enforcing the rule of law, protecting fundamental rights and freedoms and ensuring that the Constitution is not contravened or is threatened with contravention. In enforcing Chapter Six of the Constitution, the High Court record is far from rosy although individual judges like Justice Mumbi Ngugi have done commendable work in this regard.

The long and short of the foregoing is that the Constitution has provided for adequate safeguards to protect our democratic legal order but in the end, its survival depends on the vigilance of citizens, fidelity of political parties to its principles, and resolve and action of various state officers. 

In the context of the looming danger of state capture by a large coalition of free felons in the public and private sectors, few of the actors cited above have done their duty.

Commendably, Okiya Omtatah (on behalf of the citizens) has done his part whilst to some extent the EACC, the Inspector General of Police and the DPP have taken the Constitution seriously in discharging their respective mandates.

Regrettably, the IEBC has adopted a narrow and minimalist interpretation and application of our constitutional values and principles and it remains to be seen the position that the High Court will take when push comes to shove concerning the 241 free felons in the EACC Report.

In the end, the point here is that besides socio-economic and political factors, state capture and the attendant risk of state collapse result from the failure of a country’s legal order and law enforcement mechanisms to protect society from free felons and other actors determined to wreak havoc. 

The way I see it is that if Kenya is not able to prevent the twin dangers of state capture and collapse in the aftermath of the August General Election at least we shall not feign ignorance about how and why it all happened.  I rest my case.

-The writer is a constitutional lawyer ([email protected]).