Unit 3.3:
How can good governance be entrenched?
Handout
Scenario: Nchi ya Kitu Kidogo
Mzee alisema hakuna cha bure
Huo msema tumeutafsiri kinyume
Hata shule kuiingiza mtoto
Lazima utoe mchoto
Kupata simu ni balaa
Road licence bei nafuu utanunua
Kupoteza ID ni mashaka
Twaarudisha Jamhuri yetu nyuma
Chorus: Nchi ya kitu kidogo
Ni nchi ya watu wadogo
Ukitaka chai ewe ndugu nenda Limuru
Hata nyumbani ukipatwa na majambazi
Kupiga 999 wasema, ‘Sisi hatuna gari
Lete elfu tano ya petroli, saidia utumishi’
Mahakamani hela ndio haki
Kwa elfu chache mshtakiwa ndiwe mshtaki
Ushahidi huwa utajiri
Twarudisha Jamhuri yetu nyuma jamani
Chorus: Nchi ya kitu kidogo
Ni nchi ya watu wadogo
Ukitaka soda ewe Inspekta burudika na Fanta
Nchi ya kitu kidogo
Ni nchi ya watu wadogo
Ukitaka chai ewe Mama nunua Ketepa
Huko Kenyatta madawa zimeisha
Mashiti zauzwa marikiti mia kwa mia
Wafanyi kazi waenda miezi bila pesa
Ni bahati ukitibiwa
Mzigo wetu unazidi kuwa mzito
Watoto wanne na mshahara wa elfu mbili mia tano
Ya viatu, ya vitabu na vyakula
Nauliza na Mbotela
‘Je, huu ni ungwana?’
Chorus: Nchi ya kitu kidogo
Ni nchi ya watu wadogo
Ukitaka chai ewe ndugu nenda Limuru
Words and music by Eric Wainaina
Some questions:
Background Information
Introduction: A history of bad governance
When we talk about entrenching good governance, we mean creating a situation in which good governance becomes a habit, and the various loopholes and temptations that lead to bad governance are removed. We must also recognize that in a society like Kenya a long history of undemocratic practice, impunity for the powerful and lack of accountability, has in fact created the opposite situation: it is bad governance that is entrenched.
Bad governance happens at different levels and in many different ways. It is, therefore, necessary to adopt methods that address all areas of governance. Setting up a system of integrity is important in this regard. An integrity system provides a practical framework of checks and balances to prevent corruption and other illegal practices that damage the public interest. It also encourages an environment that improves the quality of official decision-making.
Is good governance only possible for developed countries?
Defenders of the current situation of corruption and mismanagement entrenched in their own countries or regions like to argue that good governance is a ‘stick’ created by developed countries to ‘beat’ the governments of developing countries, who are struggling to make the best of a bad situation. The argument implies that ‘good governance’ is a 20th century idea used by developed countries for their own purposes, namely to discredit and manipulate the governments of developing countries.
This is patently false. To maintain a system of government that is fair and just has been humanity’s central concern for as long as people have given authority to individuals to act on their behalf and in their best interests. This is true of all regions and cultures of the world. Traditional African state systems included processes that were set up to ensure good governance. A good example is the role played by elders in decision-making in both centralised and decentralised state systems in Africa, where, as we saw, consensus was all-important, and it was difficult for individuals or groups to impose their will on others.
The importance of political will
Leadership is very important in achieving good governance and in leading by example. However, electing an honest head of state or government does not always guarantee good governance. Support from a broad section of society is required for its success. Leaders must get support from a wide range of groups. The process of building political will thus begins at the grassroots. A good governance programme does not end with the government implementing reforms. Reforms must be supported and promoted by the people and local leaders.
But as leaders symbolise the national ethic and moral values, it is important that they set the example for the rest of society.
Promoting good governance
The following section examines the institutions through which good governance practices can be introduced and encouraged. Attention is given to the following institutional aspects:
These institutions alone, however, do not ensure good governance. The section discusses some of the important rules and practices that are needed.
The strategies and practices that can promote good governance include:
Institutional pillars of good governance
The following institutions, most of which, in one form or another, are present in Kenya, are an important part of a state governance system, providing the means to introduce and maintain good governance:
An elected and accountable legislature
Elected Parliaments are a primary means of combating corruption and thereby encouraging good governance. An elected Parliament has the legitimacy and legal right to hold the Executive accountable for its actions. However, a corrupt political leadership and a lack of transparent practices in both public appointments and decision-making processes are major problems for the government.
Parliament promotes good governance by not just providing checks and balances on other organs of the government but also by ensuring that public activities are free of corruption. In Kenya, the Parliament has several committees for this purpose. The two most important committees are:
The PAC’s responsibility is to monitor how public money is spent by public servants. The PIC, on the other hand, deals mainly with the oversight of government or public investments. The Committee is authorised to examine the ways in which government or public investment has been carried out by the ministries and public officers in general. In many systems of good governance, these two committees are chaired by opposition Members of Parliament.
Parliament can also set up committees with special purposes to investigate matters of national importance, after which they are disbanded. It also has the authority to impeach the President. Impeachment is the trial of the head of state before Parliament for actions that are not in accordance with the public good. The accusation has to be brought to Parliament by a Member of Parliament. Parliament then sits as a court and decides on a verdict after a trial. If the President is found guilty, he and his government must resign and new elections must be held.
The role of the executive
The Executive has a central role in building, maintaining and respecting a country’s constitution and governance system. Ideally, the Executive should be an example of the integrity of a country’s political system and assume the role of leader in pro-democratic reform.
An independent judicial system
An independent, impartial and informed Judiciary plays a central role in the realisation of a just, honest, open and accountable government. Judicial structures, with jurisdiction to hear cases from constitutional to minor matters, need to be accessible to all. The manner of appointment, status and conduct of its members are of utmost importance to ensure that there are no forms of control or influence on the Judiciary by the Executive or other parties.
Individual members of the Judiciary must be held accountable for their decisions and actions. Such accountability strengthens the institution’s independence as it increases honesty and helps to protect the judicial power from the corrupt forces that ceaselessly attempt to influence it.
The Auditor-General
The Auditor-General is responsible for auditing the state’s income and expenditure, and acts as a watchdog over its financial integrity. As an external auditor acting on behalf of taxpayers and their representatives in Parliament, it is essential that the Auditor-General enjoys independence and security of tenure.
The Ombudsman (complaints office)
The Ombudsman is an office that receives and investigates complaints about bad administration by the government. For this reason, it is independent of the Executive. It gives people the chance to have decisions affecting them reviewed by independent and expert people, without the expenses and delays of a court case. For people to believe in the Ombudsman, this office must be independent of political intervention, have enough money to operate and be easily accessed. Once all these thing are in place, the Ombudsman is able to operate successfully. Kenya – unlike Uganda, which has an Inspector-general of Government – does not have an office of Ombudsman.
Independent anti-corruption agencies
As corruption becomes more technically ingenious, the usual law enforcement agencies such as the police find it difficult to uncover and prosecute corruption cases. Specialised and independent anti-corruption agencies with all the necessary resources are needed to fight corruption full time and keep abreast of new ways devised by crooked politicians and functionaries to beat the system. The success of such agencies depends on both the commitment and honesty of their staff. They must also have funds, equipment, and the guarantee that there will be no political intervention.
The Kenya Anti-Corruption Commission
The Kenya Anti-Corruption Authority (KACA) was set up by an Act of Parliament as an independent institution mandated to investigate and prosecute corruption cases around the country. It was also instructed to educate the public on corruption issues.
However, in January 2001, the High Court found that there was no Constitutional basis for setting up of KACA. Its place was taken by the Kenya Anti-Corruption Commission (KACC).
Evaluation and Monitoring of Government Projects Unit
This is a Kenya Government unit charged with checking and assessing the management of government projects by different ministries. At present, the unit is part of the President’s Office.
The civil service
In an ideal world, fair and honest civil servants would carry out their work in an efficient and even-handed way across society for the benefit of all. Being the arm of government charged with the implementing of policies, the civil service is uniquely susceptible to corruption. Open to threats from both the top (government), and the bottom (corrupt and influential private individuals), the honesty of its members is a key factor in promoting efficient service delivery and a just and honest government.
Local government
Local governments have increasingly become the focus of anti-corruption activities as the direct effects of corruption are more visible to the ordinary citizens at the local level. Stopping corruption in local government is an important goal in the plan to fight corruption from the bottom up.
An independent and free media
Access to accurate information is necessary if the public is to be well informed. Information empowers people to take part in public discussions and to ask questions of their leaders. And a free and independent media is the main means of channelling information to the public. It is important to the process of building understanding between the government and the public. A free, independent, accountable and honest media that is protected by the law and not subject to control by other bodies can be the most important watchdog in a society.
Civil society
Civil society has become a major power in democracy and development in the world today. Civil society organisations have successfully backed popular demands for greater accountability to the people. They have helped to start important anti-corruption efforts. Having representatives of civil society in governance institutions is important to anti-corruption efforts.
One way of improving governance is to strengthen civil society. Civil society in Kenya has been weakened by several factors. First was the fact that the colonial government felt threatened by the activities of civil society. This resulted in restrictions on and even banning of certain organisations. Post-Independence governments were also not comfortable with civil society and as a result restricted its activities. In addition, lack of education and information among citizens is a major obstacle to promoting a strong civil society.
The private sector
The private sector has a special role to play in the maintenance of a country’s national integrity. Businesses exist to make profits and failure often results in the people involved suffering. However, a new sense of corporate responsibility towards the societies that they operate in is replacing the view that ‘all that matters in business is profit’.
This development is ever more important as the private sector is increasingly taking over the provision of essential goods and services that were previously provided by government agencies. Corruption can occur in both the private and the public sectors, and in their interaction. It is therefore important that businesses see the benefits of good corporate governance and play an active part in controlling corruption instead of contributing to it by bribing public officials for contracts and other favours.
International actors and mechanisms
International co-operation is crucial for the prevention and prosecution of corruption. Many corrupt African rulers and other public functionaries, for example, hide the money they have stolen in secret accounts in Switzerland and a host of other countries that now provide ‘offshore’ banking. The ongoing effort to recover the billions of dollars stolen by the late Nigerian dictator, Sani Abacha, is an example of both the benefits and limitations or challenges of international co-operation in the fight against corruption. Governments have a moral responsibility to apprehend corrupt people and assist in returning stolen goods to their rightful owners.
Rules and practices for the institutional pillars
Good governance cannot be guaranteed by institutions. There are a number of important rules and practices that should be followed as part of an honest system of governance.
These include:
Free and fair elections
The people of a country give the government its right to govern. The way in which this right is obtained is important. If there is any doubt about the legitimacy of the process, then people can question this authority. Free and fair elections are of great importance wherever leaders seek to legitimise their power through the electoral process. An illegitimate electoral process can lead to a lack of accountability and therefore a climate of corruption
A democratic and just electoral processes
For elections to be free and fair, every candidate for an elected position must have an equal chance of being elected. The voters too must be free to elect a candidate of their choice. An electoral system that is rigged or is dishonest in any way is not valid. Electoral fraud can take place at any of the many stages of the electoral process. Once there is any doubt as to the legitimacy of the election process, the authority of the leader comes immediately into question.
Judicial review of official actions
The possibility of judicial review of the lawfulness of certain administrative acts allows the citizen to challenge actions which go against his or her interests. Judges mediate this process. Administrative law should fully support and enforce openness and accountability from public officials. This must include the right to request reasons for any administrative decision taken by a government official.
Public service ethics, monitoring assets and integrity testing
More governments are beginning to reassess the way in which they handle issues of corruption and the resultant loss of confidence in the honesty and efficiency of the public administration. The integrity of public officials can be tested in many ways, and it is essential that rules are made to fit the society’s conditions. Integrity testing can help in this regard. For example, an undercover agent of the police puts a public official to the test by offering a bribe to see if he will accept it. For public officials in key positions it may be justified to monitor their assets and liabilities.
Control of conflict of interest, nepotism and cronyism
A conflict of interest occurs when a person with power is required to make a decision on a matter in which he or she has a personal interest. This person makes a choice that favours his or her personal position and does not reflect the best possible decision.
Conflicts of interest, as well as nepotism (or giving jobs to relatives) and cronyism (giving jobs to friends) can, for example, ensure that the best person for the job is not necessarily hired. This results in the public not getting the level of service which they should get.
It is essential that clear procedures and rules are introduced that help identify and deal with conflicts of interest and so prevent weakening of the operations of an organisation.
Public procurement
Few areas create greater temptation or offer more chances for corruption than the buying of goods and services by the public sector. This is mainly because such transactions usually involve a great deal of money. Buying rules can be flouted in a number of ways in corrupt transactions in order to profit the seller and the dishonest public official, while the government (and the taxpayer) end up paying more than the market rate. Checks and balances and the presence of private professionals and commercial bodies in buying procedures can help reduce this risk of corruption.
Good financial management
Good financial management practices are among the most powerful anti-corruption tools. They can help to identify and prevent corrupt practices. The system should provide important information for various public and private sector watchdogs that explains how decisions are made. Accounting methods that do not represent the whole institution as a combined system may easily be open to fraud.
The right to information, public awareness and public records
Information is a basic need if people are to be held accountable. It is an important component of any democratic system. Informed judgement and assessment by the public, press and legislature, are impossible if government hides its activities. Legislation and other administrative structures that give the public the right of access to information are important for the creation and maintenance of honesty and good governance. Official records must be easily accessible and the right to information entrenched to ensure a democratic system of governance.
Giving citizens a voice
Citizens with power are a vital support to a country’s system of governance. Citizens need to be informed, to know their rights, to be willing to claim them and prepared where necessary to complain without fear of reprisal. Citizens’ charters and citizens’ advice centres or community-based paralegal workers help to protect the rights of citizens. Channels for complaints must be provided and public interest legislation needs to be enacted to provide assistance to citizens.
Citizen’s participation
For citizens to play an informed role in their governance, they need a friendly and supportive environment in which to do so. This is very important for those groups that are perceived as disadvantaged. Ensuring gender equality is an important step in efforts to empower citizens to take part in their governance.
Competition policy and containing corruption
Competition policy controls the way in which the private sector manages business. It is an important method of protecting and promoting economic activity that contributes to the wellbeing of the whole society.
Laws to fight corruption
Laws to fight corruption include much more than criminal law. They include laws about access to information, freedom of expression and freedom of the media. Criminal law should be in accordance with global human rights standards and should result in fair trials. Special arrangements may be needed in corruption cases to force individuals to explain their sources of wealth. The civil law can also provide solutions to both individual citizens and the state. Specialised bodies can track and seize the proceeds of corruption. Amnesty and exemption from criminal prosecution may be needed to encourage people to be more forthcoming with information that can remove the legacy of a corrupt past.
Surveys as tools for measuring progress
A corrupt act usually takes place in great secrecy. All parties involved in the act will have a personal interest in hiding their activities from the public. Surveys therefore present a unique way of discovering the levels of corruption in a sector or society that would normally go unnoticed or unchallenged. Although inaccurate and in many ways based on hearsay, corruption surveys increase the attention given to corruption and provide information on where steps need to be taken to combat corruption. For example, the Kenya Bribery Index 2005 survey conducted by Transparency International, Kenya (which deals with petty bribery and not grand corruption) showed a decline in bribery in 2004 but, as the organisation’s newsletter pointed out, by much less than the reduction reported in 2003. It also showed that, while the number of bribes paid declined from an average of 2.7 to 0.5 (i.e. one bribe for every two people who interacted with officials), the average bribe paid more than doubled, from Ksh.1,484 to Ksh. 4,958. The significance of this finding, according to TI-Kenya, is that the sustained public focus on corruption, bribery and service delivery has made public servants more reluctant to openly seek bribes and more ready to impose a high-risk premium on the bribes they do seek – proof that putting corruption in the limelight, as with the Index itself, does have a tangible effect. (Incidentally, the Kenya Police topped the survey, and they have done since its inception.)
Notes for Facilitators
Objectives
Sequence
1. The Scenario
The handout provides in the shape of a popular song, the Kenyan public’s experience of corruption and inefficiency in every aspect of their lives; it would appear that despite the impressive machinery created to ensure that public resources are properly managed, they are actually being massively mismanaged on a daily basis, to the suffering and frustration of the majority of the population and the profit of the few.
First, give out the sheet with the song (and, if appropriate, its English translation) and take a minute to confirm that everybody agrees that it is an accurate picture of Kenyan life today. Then lead the discussion around to the machinery described in the Background Information – at this stage merely enumerating the offices of the Auditor General, PAC, PIC, etc – and ask your group why they think it has proved ineffective. Then pose the following questions, if they have not spontaneously emerged from the discussion:
Introducing the concept of e-government here is intended to give the discussion an exciting, contemporary flavour in a period when people from all walks of life are finding their lives being changed in many ways by the new technology. But you could leave it out completely if you feel it is too remote from the setting in which the discussions are being held.
Still, while the details of e-government (a concept only just beginning to be implemented in a few countries) may be complex, the basic idea is a simple one – every single government revenue collection and expenditure transaction is now recorded not just in dusty ledgers but in a computerised database that any citizen with an Internet connection or sitting in a cyber-café can access.
2. Nchi ya watu wadogo – why reform must be supported by the people
Before enumerating the institutional pillars of good governance and the strategies and practices of good governance, initiate a discussion that highlights the extent to which most Kenyans collaborate with corruption by handing over bribes to police and ‘facilitation’ fees to middlemen – bringing out how this is a distortion of the traditional African culture of gift-giving and conceals an entrenched culture of helplessness. Then ask the awkward questions:
3. The pillars of good governance
Describe, using the text above, the institutions that support good governance, as listed below:
Initiate a discussion on the desirability of this multiplicity of institutional supports, invoking the principle of ‘who will guard the guardians?’
Ask:
This discussion should lead on to the strategies and practices of good governance.
4. The strategies and practices of good governance
Run through the list in the text:
Describe how, in the past decade, Kenya has struggled to put these strategies in place. Ask: