President Uhuru Kenyatta recently announced that he will lead a “Lifestyle Audit” on public and state officers
An anonymous writer yesterday evening sent the online community abuzz with an analytical article that rubbished President Uhuru Kenyatta’s proposed lifestyle audit for state and public officers.
Below is the complete article that started circulating on whatsapp from around 8.00 PM.
The Reality of the Lifestyle Audit Ordered by President Uhuru Kenyatta
Intense debate has been going on since preaident Uhuru Kenyatta publicly announced that there would be a “Lifestyle Audit” on public and state officers.
Most of the discussion have missed the crux of the matter with many people taking position the matter from a political party position.
Here are some critical points to ponder on the life style audit:
1 Implications to the political class
It is a fact that the Kenyan law allows politicians to raise funds from friends and in some cases from the general public to fund their campaign during elections.
The fact is no politician worth his seat uses his or her own money to fund their campaign. It is also true that Uhuru campaign, Raila campaign, as well as Mudavadi campaign raised funds from the public, friends and business associates.
Therefore it is the case that most politicians in office today; from the president, to senators, to governors, to members of the National Assembly, and members of County Assemblies engaged in some of fundraising.
It is instructive that there is no obligation to refund any money to the public in case the funds raised are more than the required for the campaigns.
Further, their is no obligation for the campaign to account for the funds raised from the public because as it should be remembered, campaign finance bill is yet to passed into law.
What this means is that by default, there is opportunity to a politician to raise money from the public and invest some of it to his private ventures.
Take the case of an MP like Kimani Ichung’wa who may have raised funds for his campaign but ended up having no competitors. In that case, it is the logical done thing that such funds would be invested in personal ventures because it would be a logistical nightmare to refund everybody who contributed to his campaign.
But such a decision may raise the question on how a politician has suddenly become wealthy very quickly. In other words, politicians in office today will easily fail in the proposed lifestyle audit and would be declared corrupt.
In other words, such a lifestyle audit can only be applied on political office holders can only be a malicious fishing expedition to cut to size targeted politicians who the established old political and economic order does not like.
2 Lifestyle audit on the president
Uhuru has pledged that he will be the first to go through the lifestyle audit. Many have welcome the pledge as a mark of leadership.
But the applause can only be explained by the fact that those who have welcomed it have not given it proper thought.
To be understood properly, the pledge must be placed in its proper context.
It is important to note that under the current law the president is above criminal or civil procedure. No other officer in government has such immunity.
Unless the constitution is amended to allow the president to be prosecuted while in office, this pledge is hollow and meaningless because he can’t be prosecuted if found to have used his office to accumulate wealth illegally.
For him to be taken seriously on his pledge, the president must first lead the process of amending the law to a) abolish the immunity he enjoys b) allow for the outcome of his lifestyle public c) allow public participation in the scrutiny if his lifestyle audit.
3 Who does the audit
It must be noted that the proposed audit is not anchored on any known law in Kenya. Some have argued that laws on Chapter 10 but that is misplaced because that chapter deals with moral issues NOT the issues of how fast or slow a public office holder acquired his or her assets. he must be anchored in law.
The only audits recognised by Kenyan law are company and public sector audits.
This means there is no office on the land that allows for individual public office holders lifestyle audit.
In any case, even if there was such a law, the office holders of the lifestyle audit office must themselves first be audited.
Where in law is there the provisions to conduct a lifestyle audit on a lifestyle auditor?
Of course, there has been talk of the audits been conducted by a multiagency taskforce (MAT).
But from which law does this MAT derive its mandate from? In any case, this MAT approach turns several principles that led to the unbundling and separation of roles of institutions that comprise the new institution.
One such principle that will be reversed is the independence of constitutional offices. Merging the office of the director of public prosecution, auditor general, EACC, directorate of criminal investigation, the attorney generals office and others is to wipe out the boundaries created by law to make these offices independent.
Further, the fact that the MAT will be reporting to the president every week it put the independent offices under the executive which will bastardise the principle of separation of powers.
4 What is a lifestyle audit
It should be noted that the term ‘lifestyle audit’ is not defined anywhere in Kenyan law. In other words, only the president seems to know what areas of life it will look at.
One cannot tell whether the lifestyle audit will look at people’s sexual relationships or orientations, racial positions, or whether it will just narrow down on acquisition of assets.
Even if it will narrow down to acquisition of assets, its important to note that the law protects individuals from self incrimination.
In any case, the constitution protects Kenyans from having their privacy intruded by the government.
It seems a likely possibility that the auditors will demand bank accounts of the public officers as well other intrusive demands on personal assets and lifestyles including how much officials spend on drinks, food, hotels rooms (with who).
5 To audit government officers is discriminate
It seems that the so called audit is only aimed only at government workers currently in office.
This in itself is a violation of the constitution as it is discriminatory. It would appear working as a government official denies one certain aspects of their basic human rights.
How would one explain the fact workers in private sectors would not be vetted yet many of these private sector actors do business with government where they overcharge government for products or services.
If the audit is well intended with the end goal of slaying the corruption dragon, it would be expected to expand to private sector actors.
It is a well known fact that corruption has the demand and supply side where government officials demand and private sector supplies.
How then would private sector officials who supply to government be spared of the audit if it well intentioned.
6 Who determine timelines
As it is currently, it appears the audits will be conducted on the current public office holders. This seems rather strange because it suggests that corruption in Kenya started at the time of the current office holders.
This is like white washing the sins of past office holders. It is instructive that the push for lifestyle audits originated from past holders of public office.
It is important that the wealthiest people in Kenya commonly known as ‘old money.’
Wealthiest people in Kenya like first president Jomo Kenyatta, Oginga Odinga, Moses Mudavadi, Omolo Okero, Moody Awori, Mzee Daniel Moi, Mzee Mwai Kibaki, Charles Njonjo, Phillip and Duncan Ndegwa, Chris Kirubi Peter Munga and Titus Muya, acquired moat of their wealth while in government.
If the goal of the audits were to end corruption one would expect the lifestyles of all former high ranking government officials whether dead or alive to be audited and if restitutive action taken if they are found to have acquired their wealth illegally.
It impressive that Uhuru has said he would allow the law to take its course if his brother is found to have been involved in the latest sugar scandal. In the same breathe, its should not be difficult for former senior government officials or their sons and daughters to take cue from Uhuru to call for the audits to go into the past.
The same goes for elected officials who were defeated in the last general elections and who are calling for the audit on the current holders. There is way of telling whether the immediate past office holders acquired their wealth through legal means.
7 Wealth of people in security sector
These lifestyles audits cannot be complete or serve any meaningful use if they will not be applied on people working in the security sector.
It is a well known fact that former and current senior officials in the military, naitional intelligence service, police and the directorate of criminal investigations are among the richest people in the country yet the source of their quickly earned wealth is not known.
It is a well known fact James Kanyotu, Kibati who worked in intelligence are top the list of billionaires in Kenya. General Mulinge owns three quarters of the land in Kathiani constituency while General Tonje, Karangi and Mahmoud are also billionaires.
For these audits to be of any use in the fight corruption, they must extend to all senior military officials,intelligence officers as well the leadership of the police service.
Anything short of this will confirm that the audit are a witchhunt because security sector presents the biggest opportunity for corruption because of the secrecy soroounding their supply contracts.
Senior security officials are not above the law and their lifestyle audits should be made public when they are done and punishment meted where wrongdoing is found to have occurred.
8 How one makes money is someones business.
It is the highest possibility that the auditors will require public officer to state how they have been conducting their private businesses and how much they have been making in their private enterprises.
It should be remembered that there is no regulation on how fast or slow a public officer should acquire wealth or how much they should spend in a particular time frame. These are matters that are left to a persons creativity, effort and capacity.
For instance, there are many cases of people in Kikuyuland who are very wealthy but they do not operate bank accounts.
These men have properties allover the country but some walk around with one weather beaten jackets. Some do not have handkerchief.
The lifestyles if such men and women are protected by the privacy laws in the country.
In any case, if authority has an issue with how people acquired wealth it would be the duty of those authorities to conduct their own investigations and provide proof of illegal accumulation.
9 Judges and magistrates
A critical question to ask is whether the audits will be conducted on the judiciary particularly judges and magistrates and how such audits will be conducted. For example, will the auditors ask Chief Justice David Maraga how much wealth he has acquired since he was appointed to his position? Will they demand to scrutinise any gifts such as land, holiday trips or free shares or business favours he may have received during the period he has been head of the judiciary.
Will the judiciary audits be made public?
It would be wishful thinking to assume that no corruption happens in the judiciary. In any case, who will audit and punish the members of the judiciary who will be found to have acquired wealth illegally? Is it the multiagency taskforce? Won’t the taskforce be overstepping the law in investigating the judiçiary?
Yet the audits would be incomplete if they didn’t touch the judiciary.
10 What next after audit.
There is tendency in the country where such investigatory actions are done behind closed doors and the public is also denied the results if the investigations.
It is obvious such opaque processes is to punish those officials that the establishment feels uncomfortable working with and shield those who are part of the establishment.
It should be remembered that a vetting exercise which is similar to the proposed audits was conducted not long ago on the judiciary and the police service.
Many years down the line, no judge or police who was found to have accumulated wealth through corruption was punished. In fact, the full extent of corruption or malpractises by judges and police officer has never been made public.
Shouldnt it be the case that to prove it does not have sacred cows in the audits, the government should first punish the judges and officers who were found to have acted unethically in the vetting process?
Going by history, it appears that only those who the establishment does not like will be punished or have their audits leaked to the media for public ridicule.
In any case, the current governmwnt has had many opportunities to deal with corruption which it has spurned.
By just implementing reports of previous investigatory commissions, such Truth Justice and Reconciliation Commission (TJRC) it would have dealt a serious blow on corruption.
Today, commitment by the president to implement the report remains at the realm of intentions.
How if the president started by implementing the TJRC before committing public time and funds on another audit exercise whose results will add no value to the fight against graft.
13 Conflict of interest
Lastly there is the obvious conflict of interest that must be dealt with before the audit are done.
In the Akiwumi report on tribal clashes in 1992, Yussuf Haji then the Rift Valley Provincial Commissioner was found to have received money from politicians to coordinate the eviction of Kikuyus.
Either by default or design, Hajji’s son Noordin Hajji is the director of public prosecution.
Noordin will be sitting in the multiagency taskforce on the audits and will be charged with prosecuting those who are found to have acquired wealth illegally.
As a sign of good and faith, it should be demanded that Noordin first makes annunderstaking that he will prosecute his own father. It should not be difficult for him to so, seeing as it is that Uhuru has led the way by offering not to intervene in his brother investigations over the latest sugar scandal.