Document Type

Article

Disciplines

International Law

Abstract

In this paper, I explore various anti-corruption initiatives that form part of the rule of law reforms donors have required the Kenyan government to implement. Rule of law reforms primarily aim at instituting fair or impersonal procedures that limit open ended official discretion. The goal of these rule of law reforms is in part to put in place effective mechanisms to hold public officials accountable for abuse of office. My argument is that although rule of law reforms are significant for reducing opportunities for abuse of public office, these do not necessarily guarantee or entail fair or substantive outcomes. This is because the nature of corruption in the country is in large measure a reflection of the disproportionate inequalities of wealth and power. Grand scale corruption and looting in particular take place within a fairly complex network of individuals and groups with access to enormous wealth, power and influence in both the public and private sector. Dealing with corruption as a matter of procedural fairness is insufficient in this context. Any approach to dealing with corruption requires a commitment to redressing the disproportionate access to power, wealth and influence that makes corruption possible in the first place. The Goldenberg scandal and the case of the Anti-Corruption Authority discussed below demonstrate the inadequacy of using procedural safeguards to deal with a case of grand corruption and looting.

Rule of law reforms that target official conduct with a view to ensuring its procedural legitimacy, especially where grand corruption and looting are involved simultaneously, implicate questions of substantive justice. Substantive justice in turn implicates deep issues of the distribution of access to political power, wealth and influence. This presumes the dismantling of structures of oppression and exploitation, and the decentralization of power at all levels: international, national, regional and personal. Dealing with corruption requires a framework that does not separate the state and the society from the economy. Procedural fairness focuses too much on the state and society apart from the economy and the attendant questions of substantive justice. In short, reforms addressed at corruption need to simultaneously examine issues of both procedural and substantive fairness. The examples I draw from Kenya demonstrate this concern.

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