Tag Archives: Kenya

Going Cashless to Fight Corruption: The Case of Kenyan Public Transit

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In the fight against petty corruption, a potentially game-changing development is the rise of cashless payments. In a world where people do not use or carry cash, petty bribes to traffic cops or low-level government bureaucrats are either foolish—in that they require a processing mechanism and are therefore easy to detect—or altogether impossible. While some wealthier jurisdictions have made substantial steps towards a cashless economy (see Sweden and Hong Kong), a surprising leader in the rise of cashless payments has been Kenya, reinforcing its role as the Silicon Savannah of Africa and a potential hub for innovation in combatting petty corruption.

In 2007, the Kenyan telecom company Safaricom launched M-PESA, a mobile banking service that allows people to transfer money to other users using their mobile phones, and to withdraw cash from any of over 40,000 agents across the country, creating convenient mobile bank accounts accessible to virtually all Kenyans. M-PESA has been remarkably successful: As of 2015, M-PESA had 20 million subscribers (over two-thirds of Kenya’s adult population), and by some estimates around 25% of the country’s GDP flows through the service. The brilliance of M-PESA is that users do not need to carry around vast sums of cash; instead, they can treat any M-PESA agent as an ATM, and withdraw cash only when needed.

A recent plan has suggested leveraging technology like M-PESA to create cashless payments on the shared buses, known as matatus, that are the main form public transportation in Kenya. Traffic police routinely stop matatus to extort bribes from the drivers and conductors of the vehicles, who often in turn demand cash from passengers in order to continue on their route. In 2014, Kenya’s National Transport and Safety Authority (NTSA) proposed a policy whereby matatus would become cashless, shifting payments to a more easily regulated electronic system. All commuters would have prepaid cards, or funds accessible through their mobile phone that they could use to pay the conductor a flat rate for a given route. Drivers would be discouraged from extorting payments to fund bribes through the online system, as this system would be more stringently regulated and payments would be more easily tracked. Given the ubiquity of M-PESA agents acting as de facto ATMs throughout the country, commuters as well as matatu drivers and conductors would in theory not need to carry cash at all on these routes, thus reducing the incidence of bribes paid to traffic police.

The implementation of this plan, however, has been slow and fraught with difficulties. As of the time of writing, only some matatu associations have begun accepting cashless payments, and cash payments still predominate. In January of 2016, the Chairman of the Matatu Owners Association, Simon Kimutai, stated that full implementation will likely take up to four years, despite the government’s more optimistic timelines. One problem is inter-operability: Ideally, there should be a uniform set of payments on all matatu routes, but this is not yet the case; the unfortunate consequence is that even in matatus with the equipment to receive cashless payments, drivers and conductors still accept cash payments to avoid logistical difficulties. A potentially more serious problem is that some matatu drivers are actively resisting the plan by pretending the card readers are broken or feigning confusion over the new system. One reason for this resistance is the drivers’ desire to preserve their ability to inflate prices at rush hour or in poor weather. But drivers may also resist the cashless system in order to avoid retribution by the criminal gangs that currently patrol certain matatu routes and force drivers to pay bribes for protection. (Similar problems arose in Guatemala, when a similar cashless plan was enacted: When the cashless system limited drivers’ ability to pay these “protection” bribes, gangs reacted with violence, burning buses and threatening drivers and passengers alike.)

These problems mean that in the short term, it is unlikely that this plan to shift to cashless payments will have much effect on the incidence of petty bribes on matatus, as commuters will be forced to carry cash all the same. However, I remain optimistic that this plan nevertheless represents an exciting development, and is one that will ultimately have a meaningful impact. There are three main reasons for my optimism:

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Time to Investigate Nike’s ‘Commitment Bonus’ to Kenya’s Track and Field Authority

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Since last November Kenya has been rife with claims (here and here for press reports) that American shoemaker Nike bribed the nation’s track and field authority to ensure the country’s runners compete wearing Nike shoes.  While Nike denies wrongdoing, the March 6 issue of the New York Times provides details which suggest the allegations are true.  Yet despite the mounting evidence that an American company is at the center of a high profile corruption case in Kenya, the Times reports the U.S. has not opened an investigation.  Its failure to do so, in the face of President Obama’s stern lecture about corruption to the Kenyan elite during his July 2015 visit to the country and the agreement reached during his visit pledging the U.S. to help Kenya fight corruption, has left Kenyans frustrated and angry at America.  It is “hypocritical,” famed Kenyan corruption fighter John Githongo told the Times, for the American government to “bang on” about Kenya without investigating allegations against the iconic American company.

According to the Times, American officials believe the U.S. is powerless to investigate because, even if Nike did indeed pay a bribe, it was to employees of a private entity, and private sector bribery is not covered by the anti-bribery provisions of the Foreign Corrupt Practices Act.  But while private sector bribery itself is not an FCPA offense, this does not mean Nike is off the hook.  If an American company bribes an employee of a private entity, as it is alleged Nike has, it runs afoul of numerous state and federal statutes, anyone of which could provide the basis for launching an investigation.  Four that come to mind immediately are:   Continue reading →

Should Anticorruption Agencies Have the Power to Prosecute?

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One of the main reasons policymakers cite for establishing a standalone, independent anticorruption agency is the need to strengthen the enforcement of their nation’s laws against bribery, conflict of interest, and other corruption crimes.  In the past 25 year some 150 countries have created a specialized, independent agency to fight corruption (De Jaegere 2011), and virtually all have been given the lead responsibility for investigating criminal violations of the anticorruption laws.  But while a broad international consensus exists on the value of creating a new agency with investigative powers, opinion remains sharply divided on whether these agencies should also have the power to prosecute the crimes it uncovers.  As this is written, Indonesian lawmakers are considering legislation to strip its Corruption Eradication Commission (KPK) of the power to prosecute while a bill before the Kenyan parliament would grant its Ethics and Anticorruption Commission (EACC) the power to prosecute the cases it investigates.

No matter the country, debate about whether a single agency should have the power to both investigate and prosecute corruption cases inevitably comes down to a small set of conflicting claims.  Those who oppose giving a single agency both powers raise an argument at the center of the older debate about the relative responsibilities of police and prosecutors — investigator bias.  In the words of a British Royal Commission that studied the relationship between English police and prosecutors, an investigator “without any improper motive . . . may be inclined to shut his mind to other evidence telling against the guilt of the suspect or to overestimate the strength of the evidence he has assembled.” That is, once an investigator hones in on a suspect, confirmation bias sets in, and he or she will interpret all evidence as supporting the suspect’s guilt.  Putting the decision about whether to prosecute a case in an agency wholly separate from the one that investigates provides a strong check against such bias, reducing the chances that the innocent will be put to a trial or weak cases brought to court.

The investigator bias argument has a long and distinguished pedigree, and a 2011 survey of the powers of 50 anticorruption agencies by World Bank economist Francesca Recanatini found that it often carries the day.  Only half of the 50 agencies she surveyed have both investigative and prosecutions powers.  But as the contemporary debates in Indonesia and Kenya suggest, proponents of combing investigation and prosecution in a single agency have a very powerful counter argument in their corner.  Continue reading →

Coordination by Legislation: Is Regional Anticorruption Legislation in the East African Community a Good Idea?

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This past September, at a meeting of the East African Association of Anti-Corruption Authorities, Daniel Fred Kidega, the Speaker of the East African Legislative Assembly (EALA) announced that the regional legislature planned to consider a series of anticorruption and whistleblower bills (also reported here). (The EALA is the legislative body of the East African Community, a treaty organization to which Burundi, Kenya, Rwanda, Tanzania, and Uganda are members.) According to the Speaker’s remarks, “[t]he Laws passed by EALA supercede those of the Partner States on matters within the purview of the Community.”

Details on the legislation are scant, and movement on this proposal does not seem imminent. (Drafts of the proposed legislation are not available on the EALA website, nor could I find them through other sources. And at the mid-October EALA session, anticorruption does not appear to have been on the agenda.) Furthermore, the EAC Treaty does not provide the EALA all of the legislative power the Speaker’s statements suggest, because, according to Article 63 of the EAC Treaty, acts of the EALA only become effective law for member states if each of the five Heads of State “assents” to the measure. Nonetheless, given the interest in East Africa and elsewhere in greater international cooperation on anticorruption efforts, it’s worth reflecting on whether regional anticorruption legislation such as that proposed by Speaker Kidega is a good idea.

I tend to think not. While regional coordination, particularly through conventions, can be an effective way to strengthen anticorruption efforts (as Rick previously discussed in a comment on this post), it is not a good idea in every circumstance (as Matthew noted in a recent post in the context of proposals for a ASEAN Integrity Community). Although the EAC might be able to perform a helpful goal-setting and coordinating role (something akin to an UNCAC or African Union Convention on Preventing and Combating Corruption), the proposal for the EALA to enact more binding regional anticorruption legislation involves more risks than benefits.

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Is Dodd-Frank Coming to Kenya?

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Being a whistleblower in Kenya is a risky business. John Githongo and David Munyakei might be exhibits 1 and 1a in supporting that assertion. More recently, blogger David Mutai was arrested and had his blogs and Twitter account shutdown after exposing corruption at a public agency and in some county governments. More generally, according to Transparency International’s 2014 East Africa Bribery Index, Kenyans reported just 6% of the bribes they were aware of, and a common reason (noted by 10% of respondents) was fear of adverse consequences.

Against this backdrop, earlier this year Kenyan Attorney General Githu Muigai formed the Task Force on Review of Legal, Policy and Institutional Framework for Fighting Corruption. It is not clear how much work the Task Force has done or is doing (you can read the opening address from the June 2015 “Technical Retreat for Development of a Draft Report” here), but it was reported over the summer that the Task Force plans to propose a whistleblower reward system similar to Dodd-Frank’s whistleblower incentive provisions (which have been discussed previously on this blog here, here, and here). Specifically, the reported Kenyan proposal would reward “a person who reports corruption [with] at least 10 per cent of the value of any property recovered after investigations and conclusion of the matter through judicial or other dispute-resolution mechanisms.”

If the Task Force is still looking for ideas (as far as I can tell it has not released any draft legislation or white papers, and the latest news story I could find that mentioned the Task Force is this one from August), I have a few for how to make sure its whistleblower reward program is effective. Continue reading →

Guest Post: “Global Cities–Joining Forces Against Corruption” Conference Recap, Part 1

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Jennifer Rodgers and Gabriel Kuris, the Executive Director and Deputy Director, respectively, of the Columbia University Center for the Advancement of Public Integrity (CAPI), have provided a two-part series of guest posts summarizing CAPI’s recent conference on “Global Cities–Joining Forces Against Corruption”, which we previously advertised on GAB. This is the first of the two posts.

CAPI’s “Global Cities” conference brought together delegations from 14 cities across six continents to discuss the corruption challenges in urban settings and new ideas for reform. Videos of each speech and panel, presentation slideshows, and other conference materials are now available online. The discussion will continue on an online forum launching soon on the CAPI website, and those interested in participating in these online exchanges should feel welcome to register now. CAPI plans to periodically reprise the conference, with a shifting roster of cities, to build a coalition of cities on the vanguard of fighting urban corruption.

The conference commenced with keynotes addresses by the mayors of two historic cities working to boost transparency and public trust: Miguel Ángel Mancera of Mexico City and Giorgos Kaminis of Athens. Both mayors emphasized the empowerment of everyday citizens through new oversight mechanisms, cooperation with civil society, and emerging technologies—like Athens’s online budget monitoring tool. Both cities are also working to streamline legal regulations and public procedures, whether through Athens’s one-stop shops for citizen services or Mexico City’s legal reforms in public procurement and property registration.

The first panel, “The Shifting Landscape of Urban Corruption: New Challenges, New Approaches” examined the corruption issues cities currently face worldwide. Leaders of Western Australia’s Corruption and Crime Commission discussed their development of a “Misconduct Intelligence Assessment” tool to track the dynamic corruption risks of the modern boomtown of Perth. Chicago’s Inspector General spoke about emerging challenges such as the increasing prominence of quasi-governmental entities, the changing role of money in politics, and the grey areas of “legalized corruption.” Leaders from the anticorruption agencies of Catalonia and Kenya discussed the intersection between corruption, civic ethics, and public procurement.

The second panel, “Comeback Cities: Restoring Integrity after a Corruption Scandal”, covered the efforts of Toronto, Philadelphia, and New Orleans to break out of ceaseless cycles of scandal and clean-up to build resilient structures of oversight and civic cultures of lawfulness. Toronto’s Accountability Framework pioneered a new integrity model in a city reeling from a procurement scandal. Philadelphia’s Inspector General helped the city recover from high-level corruption so rampant the FBI wire-tapped the mayor’s office. Federal oversight is helping New Orleans to finally overhaul its notoriously corrupt police department. At the end of the panel, Frank Anechiarico of Hamilton College brought in comparative experience from Amsterdam, Hong Kong, and New York City from the volume he co-edited about city-level anti-corruption structures, Local Integrity Systems.

The third panel, “Bridging Political Boundaries: Partnering with National and State Government”, provoked some of the conference’s most engaged discussions. An aide to the mayor of Lviv, Ukraine, discussed how local activists whose reforms were frustrated by corruption at the national level helped upend national politics. Delegates from Nairobi and Chicago discussed collaboration between federal, regional, and local levels of law enforcement. Finally, GAB Senior Contributor Rick Messick brought an international-level perspective, emphasizing the counter-intuitive benefits of competition, rather than cooperation, among overlapping levels of government.

In our next post, we will summaraize the conference’s other speeches and panels, on topics ranging from the fight against corruption in post-Maidan Ukraine to the risks posed by cybercrime rings when cities host major events.

The Golden Handshake: Background Rules and the Choice of Restoring Money or Doing Justice

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The anticorruption community has recently put more emphasis on freezing, seizing, and repatriating the assets of corrupt kleptocrats. But while this move is in many ways welcome, it is still the case that essentially none of the most infamous kleptocrats have ended up behind bars. Even when governments go after the illicit assets of these kleptocrats, their cronies, and other “politically exposed persons” (PEPs), the governments seeking asset recovery often find themselves put to an uncomfortable choice: either to accept the return of only a part (sometimes a small part) of the looted wealth in a settlement, or to continue to pursue their attempts, often in vain, to seize and repatriate all (or at least most) of the stolen assets.

Sophisticated PEPs know this, and usually take advantage of the slowness of the asset recovery process (as well as their ability to use their ill-gotten wealth to hire top-notch legal talent to wage a protracted legal battle), to the point where the governments are willing to allow the PEP to secure the “golden handshake” of a favorable settlement. Nothing illustrates this better than the attempts to recover the assets of former Nigerian President Sani Abache and of former Kenyan President Daniel Arap Moi. Abache’s family’s lawyers stiff resistance to asset recovery efforts eventually led to a settlement whereby the Abache family returned $1 billion–but got to keep $300 million. In the latter case, the Kenyan authorities insisted on recovering the full amount–and have ended up with nothing. The Kenyan experience has served as a cautionary tale, inducing for example many of the Arab Spring countries to accept settlements they would have never accepted two years ago. This result frustrates the foundational principle of penology that a criminal who gets caught should end up worse off than he would have been if he did not commit the crime. A corrupt official who knows that the worst that can happen is that he might have to give back half or two-thirds of the money he stole is unlikely to be deterred.

At the moment, it does not seem realistic to expect more severe criminal punishment for many kleptocrats, so reliance on settlement will continue for a while. Accordingly it is important to figure out how to use settlements to guarantee the maximum restoration of assets. The two most important factors that shape the content of a settlement are national and foreign justice. Consider each in turn. Continue reading →