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THE 2010 CONSTITUTIONAL ORDER, GOOD GOVERNANCE AND THE FIGHT AGAINST CORRUPTION: A CASE STUDY IN KENYA ABSTRACT In August of 2010, Kenya ratified a new Constitution, it has been cited as one of the most robust and progressive documents in the world, this is because of the constitutional provisions on strengthening governance, enhancing democracy and the rule of law, promoting transparency and accountability, the elaborated provisions on separation of power between the organs of government, the comprehensive Bill of Rights and introduction of a devolved system of governance. More importantly, the Constitution provides a strong anchor for the fight against corruption. Chapter six of the constitution is on Leadership and integrity, these provisions lay down the principles upon which the State Officers conduct themselves. State Officers include the President, Deputy President, other members of the Cabinet, Members of Parliament, members of the new County Governments, judges’ magistrates and members of commissions. These provisions are geared towards addressing the deep-seated problem of poor governance and the culture of impunity and corruption that have stifled national development and progress, this has seen the creation of the Ethics and Anti-Corruption Commission replacing the Kenya Anti-Corruption Commission which many have termed it as a ‘toothless dog’ for lack of the prosecutorial powers. Kenya’s corruption legacy however dates back to the colonial period, and yet it was not until the 1990’s under donor pressure that established and enacted broad based anti-corruption initiatives and institutions. Since then, Kenya has made numerous efforts since that time to combat corruption with varying degrees of success. It’s notable that the efforts to combat and prevent corruption are constitutionally acknowledged under the 2010 constitution. This research is set to analyse how the 2010 constitutional order and the aspects of constitutionalism; good governance and rule of law, if applied, go a long way to preventing and combating corruption in Kenya.
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The main objective of this dissertation is to prove that the EACC has been ineffective in the fight against corruption due to the absence of prosecutoriaI powers. It analyses the history of corruption in Kenya in order to demonstrate the factors which often fiustrate the fight against conuption. It also scrutinises the legal framework of the EACC in order to establish whether it allows the EACC the authority and independence it needs to reduce corruption and economic crimes in Kenya . The dissertation then analyses the successes of the Sierra Leone Anti-Corruption Commission with regards to prosecution of corruption and proposes recommendations that the EACC should adopt in order to enhance the fight against corruption. This dissertation shall be limited to corruption offences that have occurred within the territory of Kenya. Moreover, the dissertation shall only deal with two specific types of corruption, grand corruption and looting. It analyses the prosecution of public officials.
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This paper is premised on the principles of public trust, separation of powers, rule of law and accountability. In a representative democracy it is few individuals given the mandate and responsibility over public affairs which include management and administration of public resources. Authority given to such individuals is a public trust. It is just like any other fiduciary implying they owe a duty to the general public. The public is the master while the leader is the servant. Accountability is an important forum which enables and empowers the public to exercise power and oversight over the government they elect. In Kenya there exists a robust legal framework to govern public governance accountability. The system is also supplemented by institutions which are supposed to implement the law provisions, ensure compliance and take the necessary steps in the case of contraventions. However, despite the jurisprudence corruption is one of the major threats to the stability and economy of Kenya. Kenya is also among the countries with high perception indices as ranked by transparency international. The author refuses the school of thought that morality could be a valid argument in understanding the persistence of corruption. He adopts the positive theory of law which is applies the law as it is and not as it ought to be. Thus, this paper is an inquiry into the written law of Kenya and the institutions concerned with safeguarding accountability in public governance. The study also looks at the international framework on the same. The purpose of doing so is to ascertain the efficacy of the Kenyan system in handling the subject matter. It is also to examine the compliance of the statutes of Kenya to the international law and standards. The study then includes findings and recommendations to reform or applaud the current legal and institutional framework.
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Beijing Law Review
This study sought to underscore the central role of morals and ethics in reducing judicial corruption. The paper proceeded to study the concepts of integrity and corruption. Subsequently, the paper studied Kenya’s development and current law on integrity, public service and corruption and possible areas for reform. The study found out that despite near-adequate legislations , Kenya’s jurisprudence depicts a state of despair, lack of good will and numerous constraints in the anti-corruption process: many of the cases prosecuted in court have either been terminated by the courts or have not succeeded as a result of lack of political good will and political interference. The paper concluded that corruption is not only a legal issue but also a moral one—that is why major solutions to taming judicial corruption have flopped as a result of the linear approach to offering solutions. The paper found out that in order to offer formidable solutions to corruption in the judiciary, the legislative and policy approaches ought to be structured and conceptualized in a more realistic and feasible manner to that of ordinary obligations and offences. As a central point of interest, premium must be attached to integrity, as a moral concern, in order to offer sustainable solution to corruption in the judiciary.
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The study sought to establish the influence of governance on corruption levels from the perspective of the Public Service in Kenya. One of the study objectives was to: assess the influence of institutional leadership on corruption levels in the Public Service. A review of literature was done anchored on Principal-Agent Theory. The study adopted both the correlational and descriptive research designs. A study population of 265 institutions (as on 2015) provided a target sample size of 157 institutions. The target respondents in the sampled institutions were public officers who had undergone training on the following disciplines: leadership, integrity, values and principles of the public service and management during the study period (2010-2015). These purposely selected respondents were subjected to questionnaire. To augment data from the questionnaires, 23 key informant interviews were conducted targeting senior officers in the public service, non-state actors and experts. Data collected was analyzed by descriptive and inferential statistics. The overall correlation analysis results showed that there was a significant but negative relationship between institutional leadership and corruption levels as supported by correlation coefficient of-.525. The regression analysis results showed the coefficient of determination R square is .291 and R is .540 at 0.05 level of significance. The coefficient of determination indicates that 29.1% of the variation on corruption level is influenced by institutional leadership. The findings
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