7 May 2015.
This post was originally published on the Transparency International Kenya website on 20 November 2014.
In July 2013, Transparency International Kenya was among institutions appointed by the Attorney General to a 15-member National Steering Committee on the Review of the Implementation of the United Nations Convention Against Corruption (UNCAC). The committee facilitated the review of Kenya’s implementation of UNCAC by assessing anti-corruption laws, institutions, policies and administrative measures or other arrangements. The statement below was presented to the visiting governmental expert reviewers from the United Nations Office on Drugs and Crime (UNODC) secretariat, Cape Verde and Papua New Guinea on 3rd September 2014.
The signing and ratification of the United Nations Convention Against Corruption (UNCAC) on 9th December 2003, was a great milestone in the anti-corruption struggle in Kenya.
The acceptance by the Government to be reviewed on the implementation of the UNCAC under the current cycle is further testament on paper of its will to fight corruption. As CSOs, we welcomed the gazette notice No. 10700 and acknowledged the approval of the review process by the Cabinet and the commitment to implement the report of the review as was reiterated by the President.
The design of the review mechanism makes it an intergovernmental process in which public/CSO participation is discretionary to the government being reviewed. This stands at cross purpose with two things. First is an overriding principle that runs across the UNCAC which allows state parties to do things in accordance to their domestic context and second is the fact of our domestic constitutional context that makes public participation in all governance processes mandatory. Noteworthy here is that the Constitution of Kenya has literally forced a marriage between government and the public in all such governance processes and it would have been unthinkable to have a closed door exclusive government review process. In our context therefore participation is not discretionary.
We appreciate the courage and confidence shown in allowing for CSOs to be represented in the local review by two people out of the seventeen appointed to the steering committee. While we could have done better with more representation, this was a good step. We also note the robust Terms of Reference (TORs) for the committee and the fact that it provides Kenya an opportunity for a thorough assessment of its anti-corruption efforts-laws, policies, institutions and programmes- and with an open possibility of actioning steps and measures to be taken to ensure compliance.
While great effort went into the compilation and submission of the self-assessment checklist, this could not be devoid of challenges and useful lessons. First is a glaring weakness of the omnibus tool. The tool does not allow for a thorough enough assessment of the effectiveness of the legal, policy and institutional measures put in place to domesticate the UNCAC. Secondly, when you compare the UNCAC review mechanism and similar mechanism under other UN standards, the window of shadow reporting is very narrow in the UNCAC. Third and related to the first, on the surface the review manifests remarkable progress in domestication, but this stands in sharp contrast to the state of corruption in the country. There are still irreconcilable and glaring discrepancies between progress in domesticating UNCAC and the reality of corruption in the Country. This basically calls for stronger enforcement mechanisms for the country to fully realize the dividends of domesticating such mechanisms.
It is important to note that data/statistics are the cornerstones for such review processes. Given the multiplicity of the agencies involved with elements of anti-corruption work in our Country, there is need for a robust central data management system on anti-corruption. Data has to be properly maintained and in a uniform format for ease of reporting not just on our international obligations but most importantly to the citizens as required by the Constitution. The same data should be made available to the public as stipulated in Article 35 of the Constitution of Kenya so that citizens are accorded a genuine opportunity to constantly appraise the efforts by Government and provide objective feedback.
The report of the steering committee could have been richer and immensely benefitted from more extensive consultations with multiple stakeholders if time and resources afforded for such an opportunity. While the TORs required publication of the draft self-assessment checklist for public feedback prior to transmission, this was not properly done.
The UNCAC review is almost coming to an end. However, the expansive TORs given to the committee does not necessarily end with the UNCAC review.
While the review mechanism only provides for publication of the summary of the final country review report a number of countries have taken the further step of publishing the full text of their country review reports. It is our desire as CSOs, a desire we know we share with the general Kenyan public, that Kenya is counted among the growing list of countries that publish their full report. We request that the Attorney General considers publication and wide dissemination of the full final country review report, with a clear roadmap for the implementation of gaps/recommendations through another inclusive process.
Prepared by Transparency International Kenya, Centre for Law and Research International (CLARION), Law Society of Kenya, Kenyan Section of the International Commission of Jurists, Constitution and Reform Education Consortium (CRECO), Article 19, Institute for Economic Affairs (IEA) and African Centre for Open Governance (AFRICOG)