On the 15th of January the Kenyan head of state appointed a committee of respected foreigners essentially to help kick start and lend coherence to the Kenya government's apparently stalled anti-corruption programme.

Working under the auspices of the contracted British Risk Advisory Group, the high-powered group comprised of the firm's MD Bill Waite, Graham Stockwell, formerly of the London Metropolitan Police and the Hong Kong and Botswana anti-corruption authorities; top British lawyer Stephen Kramer QC; and, a former Deputy Secretary General of the Commonwealth Secretariat Sir Humphrey Maud. Others were Carolyne Snowden and Tony Milford. They are expected to "advise on what is required to create a nationally and internationally credible machinery which will combat corruption and promote integrity in the public sector."

The appointment of these distinguished individuals was the latest installment in a fight against corruption in Kenya that has been tortuous to say the least. To the government's credit, however, when in November the President first announced that the experts would be appointed, the Attorney General took the trouble of partly explaining what they would be doing in Kenya to the Kenya Anti-Corruption Coalition (KACC). The KACC was formed last October at the International Anti-Corruption Conference (IACC) in Prague. It brings together a number of groupings involved in the fight against corruption in Kenya including the Attorney General, the police anti-corruption unit, representatives of civil society including TI-Kenya, the Kenya Private Sector Foundation, religious leaders and members of the cross-party African Parliamentarian Network Against Corruption (APNAC) Kenya Chapter.

Controversy, tentative steps forward, major setbacks, recrimination, shreds of hope that everyone tries to clothe themselves with and regular bouts of serious disconcertment have characterized the fight against corruption in Kenya since 1997 when under donor pressure the government created the Kenya Anti-Corruption Authority (KACA). It was modeled on the popular Hong Kong official anti-graft organization. Prior to this a Prevention of Corruption Act (Cap. 65) had been enacted in 1956. It was amended eight times over the next 41 years. One needs both a sense of humour and perspective to follow the ups and downs in the struggle against corruption in Kenya that the changes in this piece of legislation in part illustrate.

Partly as a result of mounting donor pressure, in 1991 the Kenya government amended the Prevention of Corruption Act to increase criminal sanctions for graft. This had no discernible effect, however, and in 1993 the government took a step further and created a special anti-corruption investigative unit within the police ostensibly separate from the rest of the force. The unit arrested a few junior traffic policemen for taking small bribes but did little else before its registry and offices mysteriously burnt down. In 1997, again under donor pressure, the Act was amended and the Kenya Anti-Corruption Authority (KACA) created. The first director was an ex-policeman and sharpshooter and a former Presidential candidate on the Party of Independent Candidates of Kenya (PICK) ticket.

After about a year in office he was suspended and a tribunal constituted to examine his performance and conduct. He finally resigned as head of KACA in November 1998. Some consideration was apparently given by the tribunal to his robust temperament, which was plainly exhibited before the tribunal at which he appeared in his own defence without the assistance of counsel.

In 1999 the president appointed Justice Aaron Ringera to head KACA. At around the same time the renown white Kenyan palaeontologist Richard Leakey had also been appointed to head the civil service. The combination of Ringera's hard work and meticulous legal capacity, and Leakey's newfound political influence led to a situation where the for the first time KACA started making progress against politically connected elements of Kenyan society previously considered untouchable. Between November 1999 and June 2000, KACA investigated 135 cases of corruption and secured
1 successful conviction. During this time Ringera successfully institutionalised KACA hiring competent staff, initiating training programmes and launching preparations for the Kenya Anti-Corruption Strategy. He also showed a willingness to cooperate with civil society that was not really in evidence before.

It has been argued that the root of KACA's ultimate demise was in the very appointment of such an industrious person as Justice Ringera to its helm. The first sign of trouble was contemporaneous with his appointment when two legal challenges were mounted in court. In the first the immediate former director Harun Mwau challenged the appointment for offending doctrine of separation of powers in purporting to second a High Court Judge to head KACA which inter alia had powers of investigation and prosecution. He temporarily injuncted the new director from taking office. The second challenge was by the Law Society of Kenya (LSK) which objected to the constitution of the Advisory Board that had recommended the appointment of Ringera, on several grounds including the fact that several supposed nominating bodies to the Advisory Board were non-existent! Another limb of the LSK's argument revolved around separation of powers. Ringera survived both challenges but took no steps to regularise his position. Thus it came as no surprise to many observers when the High Court on the December 22nd 2000 reversed itself and found that Ringera as a judge was after all unqualified to sit as the head of KACA. The court went further and declared the entire authority unconstitutional. Barely three weeks earlier on November 28th 2000, the South African Constitutional Court sealed the fate of Hon. Mr. Justice Willem Heath of the Special Investigative Unit (SIU) - finding his appointment and incumbency to be unconstitutional.

That was the end of KACA. Subsequent government attempts to introduce legislation legalising KACA last year were thrown out of parliament partly because of poor drafting but also because many MPs resented the impression that the legislation was being forced down Kenyan throats by the donor community. This meant that Kenya failed to meet one of the most fundamental IMF conditionalities before resumption of Kenya's programme with them. Essentially this and other unmet conditionalities put a number of key donor programmes on hold and left the government with a significant hole its budget. It is now expected that we'll see the contentious pieces of anti-corruption legislation again in the coming two months. In the meantime the government re-created the ill-fated police anti-corruption unit much to the chagrin of many Kenyans who consider their police force among their country's most corrupt institutions. The international experts were appointed ion the 15th just as most of us were waiting for the latest versions of the legislation necessary to regularize KACA's situation and hopefully get the fight against corruption in Kenya back on track.

The saga of the Kenya Anti-Corruption Authority(KACA), the failed pieces of legislation and all the developments leading up to the appointment of foreign experts this week offered an interesting lesson about the fight against corruption in Africa. When the donor backed anti-corruption legislation was thrown out by the Kenyan parliament in August 2001 it demonstrated the ultimate limit of conditionalities as tool for donor interaction with African governments where governance issues are concerned. When parliament rejected the legislation it was an expression of sovereignty lacking in any appropriate response from donors. Clearly the entire approach of donor conditionalities vis-à-vis governance was tested in Kenya in a way that has implications for other African countries.

* John Githongo, Transparency International, Kenya