06. February 2017

So what makes fighting graft a challenge in Kenya?

Firstly there needs to be the desire, both in terms of public consensus as well as at governmental level, though some could argue these should be one and the same in an ideal world. Subsequently, the rule of law underlines the principles of a democratic government and there is no scope, in most cases, to deviate from the law, however damning the circumstances might be.

Legal interpretation does not always have much in common with public perception that the government is not doing enough to combat corruption; the accused persons or entities are entitled to defend themselves and in a common law country, like Kenya, the burden of proof lies upon the prosecution to demonstrate guilt beyond all reasonable doubt.

Many years in law enforcement has demonstrated that this is not always possible and in an increasingly global society, the procedures and practices for gathering evidence have not necessarily kept pace with the ability to move digitally at the touch of a button.

Experience, resources and working practices also play significant roles. It takes many years of practical experience and guidance to be in a position to competently investigate trans-national organised crime and let's be clear, corruption most definitely sits within the definition of serious and organised crime. Whilst academic qualification and certification may go some way to building overall competence, it does not and never will replace practical experience gained on the ground and in the field. This knowledge is truly priceless and the cornerstone on which competent investigation depends.

Networking is often considered, sneeringly, something that is done to avoid the real work.  However contacts are crucial in the world of organised crime investigation. As I’ve already alluded to, the world is a small place and we have more enemies than friends. Cultivating and maintaining professional acquaintances is critical.  To have someone to call or e mail when a question arises saves a lot of time and frustration because, let's face it, international evidence gathering can be a frustrating and lengthy experience.

There is an ever-expanding array of technological advances that are designed to assist in investigations and whilst it is not the forum for discussing such matters in detail, some of these advances are gold dust and can create the opportunities that every investigator dreams of. The flip side, as we all know, is that there will always be competing demands for resources and rarely is there spare cash to splurge on kit, even if it might prove cost effective in the long term.

So with all these obstacles is all hope lost, should we give up and retire behind our desks where we can read the paper or catch up on the weekend sport. I’m pleased to say that there is hope. Kenya has been making startling advances in the past few years and setting firm foundation for the future. In 2016 the conviction rate increased exponentially, a testament to hard work, a philosophy of following the money and proactively looking for the evidence.

In 2015, some ten years after it first became public, senior public figures and wealthy businessmen were charged for serious offences relating to the security contracts that are collectively referred to as Anglo Leasing. International cooperation has been critical in reaching this stage. In addition, the current comprehension of the use of corporate vehicles and offshore structures demonstrates a new level of understanding the scale and complexity of such investigations.

Funds are being repatriated. The equivalent of approximately USD four million is due to come back to the country after orders were granted in London and the Bailwick of Jersey - demonstrable evidence that it can be done and perseverance pays off in the end.

There is a long way to go for Kenyans to be able to feel they live in a society hostile to corruption, where theft is punished and loot is recovered but there is a road now and lets hope that the traffic increases substantially (and you won’t hear that about any other Kenyan road).

Simon Marsh

Head, Eastern and Southern Africa, ICAR