In 1995, I was invited to dinner by an American doing business in Nairobi. He was an older, experienced man.
He picked my brain about studies, business and politics.
We
spoke a lot about studies, a little about business and almost nothing
about politics. In those post-Ouko days, the topic of politics was
better avoided.
At
one point, when dealing with business, he firmly declared, “Ethics and
business are incompatible in Kenya. If you study and teach Ethics you
become a Martian, an extra-terrestrial being. You are fixing yourself to fail.”
Perhaps thanks to my family upbringing, I knew he was wrong. I tried to tell him so, but he wouldn't listen.
This
conversation and this man's powerful statement got stuck in my mind. He
had said that it was impossible to do business in Kenya ethically.
I didn’t agree, but I wondered whether I was a romantic Venusian, or maybe somebody from Mars or a farther planet.
Certainly,
ethical business is not an easy option. Many who have tried have failed
as business people and lost it all, even though they have probably
succeeded as human beings, as good family people, good spouses, parents
or simply friends.
The
conflict of interest every civil servant in Kenya faces is truly an
uphill task. In the late 60s, it was clear that civil servants were not
being properly paid in Kenya, and President Kenyatta appointed a
commission to look into the structure and remuneration of civil servants
in the country.
WATERED DOWN
The
Ndegwa Commission, in its report of 1971, recommended that civil
servants be allowed to own private property and run business of any kind
only if they met five strict conditions.
Over
the years, these conditions were watered down, until they evaporated in
their totality. The death of these restrictions implicitly declared the
sanctity of conflicts of interest, where the regulator and the
regulated could be one and the same person, and it was seen as something
good.
Gado
the cartoonist has the rare gift of expressing many ideas through
simple, witty cartoons. Yesterday, once again, he hit the nail on the
head.
He
drew the funeral rite of Chapter Six of the Constitution. Chapter Six
of the Constitution was inside a coffin, a corpse being taken for
burial. It was dead.
CARTOON | GADO
Chapter
6 of the Constitution deals with Leadership and Integrity. This Chapter
focuses on state officers, their oath, their conduct and their
financial probity.
This
chapter also directs Parliament to establish the Ethics and
Anti-Corruption Commission and pass legislation on leadership.
Parliament effectively did so, and two bills were passed. Paradoxically,
these two bills ended up emptying Chapter Six of its beauty and
meaning.
PRIVATE SECTOR THE TRIGGER
There
is a serious integrity problem in the country, which is more visible in
the public sector but far more pernicious in the private sector. It is a
cancer, slowly eating up the nation from within.
Ernst & Young conducted a survey in 59 countries on corruption in the private sector. Kenya’s performance was dismally poor. We have one of the most corrupt private sectors in the world.
This
situation is simply unsustainable and the trend needs to be reversed.
Truth be told, the private sector is the trigger for public corruption.
Most bribes are paid by the private sector.
Betty
Maina, a great Kenyan and amazingly enterprising woman, took upon
herself to foster ethical practices and fair competition within the
Kenyan private sector. Ms Maina has rallied everyone in the Kenya
Association of Manufacturers (KAM) to join the UN Global Compact (UNGC).
The
UN Global Compact is a platform created by private corporations who
commit themselves, individually and corporately, to take environmental,
social and governance ethical responsibility to the next level and set a
new benchmark for corporate sustainability.
‘BEAUTIFULLY STRIKING’
Any
corporation that joins the Global Compact is bound to follow ten
ethical principles. They must disclose and report periodically on their
performance in areas related to human rights, labour, anti-corruption
and care of the environment.
These
corporations are struggling to address these critical issues in order
to enhance business competitiveness in local and international markets.
They have realised that unless they come together and raise the
standards they will perish; it is just a matter of time.
Two
days, ago I was fortunate to moderate a panel organised by KAM. Betty
Maina was the convener and Chris Turner was a key supporter. Bob
Collymore of Safaricom, Vimal Shah of Bidco, Marc Engel of Unilever and
Carles Amengual of BASF, made startling interventions. There were many
CEOs in the room.
It
was beautifully striking to hear these very successful CEOs say that
their corporations, some larger than many government ministries put
together, have come to the realisation that there is no choice; once a
bribe is given the road is downhill and slippery, because once you bribe
you are ‘engaged’. Once a bribe is given, one becomes the bride of the
bribe, without the choice of divorce.
REVIVE NDEGWA REPORT
Our
situation became complicated by the marriage between the public and
private sector, after the Ndegwa Report. David Apol, director of the
United States Office of Government Ethics, told my students a few weeks
ago that the most common crime against work ethics in the US Government
is related to conflict of interest.
In
Kenya, the regulators and the regulated are intermingled; they live
together, they are one and the same people. For Kenyan civil servants,
conflict of interest is both a good neighbour and an enemy.
Unless
the government revives the five restrictions suggested by the Ndegwa
Report for Public Servants, and unless the Private Sector comes together
under some umbrella pressure group like the UN Global Compact, only
dreamers will be able to do business in Kenya ethically.
Dr Franceschi is the dean of Strathmore Law School. Lfranceschi@strathmore.edu, Twitter:@lgfranceschi
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