Divergent politico-legal responses to past presidential corruption in Zambia and Kenya: Catching the 'big fish', or letting him off the hook?

Third World Quarterly

Volumn 27, Issue 2, 2006, Pages 281-301

  Taylor, Scott ^a  

^a GEORGETOWN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CORRUPTION; LEGISLATION; POLITICAL POWER;

AFRICA; EAST AFRICA; KENYA; SOUTHERN AFRICA; SUB-SAHARAN AFRICA; ZAMBIA;

EID: 33144463156     PISSN: 01436597     EISSN: None     Source Type: Journal    
DOI: 10.1080/01436590500432325     Document Type: Review

References (107)

1. In 2005 Malawi also began to consider prosecution of its former president, Bakili Muluzi.
2. See P Chabal & J Daloz, Africa Works: Disorder as Political Instrument, Bloomington, IN: University of Indiana Press, 1999.
3. P Collier, 'How to reduce corruption', African Development Review, 12 (2), 2000, p 203.
4. See W Sadurski, '"Decommunisation," "lustration," and constitutional continuity: Dilemmas of transitional justice in Central Europe', European University Institute Working Paper LAW, no 2003/15, Florence, 2003
5. SK Park, 'Dictators in the dock: Retroactive justice in consolidating democracies: A comparative analysis of Chile and South Korea', Fletcher Forum of World Affairs, 25, 2001, pp 126 - 140
6. and C Nino, Radical Evil on Trial, New Haven, CT: Yale University Press, 1996.
7. Collier, ' How to reduce corruption', p 203.
8. See JP Olivier de Sardan. 'A moral economy of corruption in Africa?', Journal of Modern African Studies, 37 (1), 1999, pp 25 - 52.
9. For institutional prescriptions, see Simon Coldham, 'Legal responses to state corruption in Commonwealth Africa', Journal of African Law, 39 (2), 1995, pp 115 - 126. The retroactive justice literature addresses prosecution, although it is concerned primarily with human rights violations and punishment of illegitimate former authoritarian regimes.
10. See also B Baker, 'Twilight of impunity for Africa's presidential criminals', Third World Quarterly, 25 (8), 2004, pp 1487 - 1499.
11. M Bratton & N van de Walle, Democratic Experiments in Africa, Cambridge: Cambridge University Press, 1997, pp 62-63.
12. Chabal & Daloz, Africa Works, p 99, emphasis added.
13. For example, R Kaplan, 'The coming anarchy: How scarcity, crime, overpopulation, tribalism and disease are rapidly destroying the fabric of our planet', Atlantic Monthly, 273 (2), 1994, pp 44 - 76.
14. R Joseph, 'Africa: States in crisis', Journal of Democracy, 14(3), 2003, pp 159 - 170.
15. Collier, 'How to reduce corruption', p 202.
16. N Kofele-Kale, 'Patrimonicide: The international economic crime of indigenous spoliation', Vanderbilt Journal of Transnational Law, 28 (45), 1995, p 52.
17. S Riley, 'The political economy of anti-corruption strategies in Africa', European Journal of Development Research, 10 (1), 1998, p 151. He attributes the 'big fish' metaphor to the Ghanaian AK Armah's 1966 novel, The Beautyful Ones Are Not Yet Born.
18. K Gillespie & G Okruhlik, 'The political dimensions of corruption cleanups: A framework for analysis', Comparative Politics, 24 (1), 1991, p 81
19. Riley, 'The political economy of anti-corruption strategies in Africa', p 151
20. and Kofele-Kale, 'Patrimonicide', p 60.
21. Coldham, 'Legal responses to state corruption in Africa', pp 124 - 125.
22. Riley, 'The political economy of anti-corruption strategies in Africa', p 154.
23. J Bayart, The State in Africa: The Politics of the Belly, London: Longman, 1993, p 226.
24. Olivier de Sardan, 'A moral economy of corruption in Africa?', p 30, n 9.
25. Riley, 'The political economy of anti-corruption strategies in Africa', p 148.
26. W Sandholtz & W Koetzle, 'Accounting for corruption: Economic structure, democracy, and trade', International Studies Quarterly, 44, 2000, p 38.
27. M Johnston, 'Fighting systemic corruption: Social foundations for institutional reform', European Journal of Development Research, 10 (1), 1998, p 49.
28. Sandholtz & Koetzle, 'Accounting for corruption', p 39.
29. 'European Union Election Observation Mission: Zambian Elections 2001, Final Statement' at http://europa.eu.int/comm/external_relations/ human_rights/eu_election_ass_observ/zambia/.
30. Gillespie & Okruhlik, 'The political dimensions of corruption cleanups', pp 90 - 91.
31. Government of Zambia, 'Zambia, building a firm base', paper presented at the Carter Center, Atlanta, GA, June 1992.
32. A Simuchoba, 'Corruption under Zambia's Frederick Chiluba and the MMD', Southern African Human Rights Review, 12, 2003, pp 13 - 16.
33. See also R Tangri, The Politics of Patronage in Africa, Oxford: James Currey, 1999
34. and L Rakner, Political and Economic Liberalisation in Zambia, 1991-2001, Uppsala: Nordiska Afrika Institut, 2003.
35. The result of a 1996 constitutional change eliminating the absolute majority requirement.
36. Carter Center, 'Observing the 2001 Zambia elections: Final report', Atlanta, GA: Carter Center, 2002, p 83. The MMD later secured a working majority in parliament by entering into an electoral alliance with UNIP, which had 13 seats.
37. C Mulenga, A Chikwanha & M Msoni, Satisfaction with Democracy and Performance of the New Deal Government: Attitudes and Perceptions of Zambians, Afrobarometer Working Paper No 41, July 2004.
38. Many charges were later dropped because key state witnesses fled. The state entered a nolle prosequi, but Chiluba was immediately rearrested. 'Chiluba, others, discharged by Lusaka court, later rearrested', Times of Zambia, 14 September 2004.
39. 'Prosecute President Chiluba', The Post, 15 November 2001.
40. Initial calls for Chiluba's prosecution came as calls for his impeachment as the sitting president. He was accused of diversion of state resources to pay for the MMD party convention in April 2001, and implicated in the disappearance of $4 million intended to purchase relief maize.
41. 'Caught in a web', The Post, 22 January 2002.
42. 'Corruption under Chiluba's regime', The Post, 16 February 2002.
43. 'We'll follow anyone who has looted this country...Sondashi backs removal of Chiluba's immunity', The Post, 28 March 2002.
44. 'Demonstrators march in support of lifting ex-president's immunity', The Post, 17 July 2002.
45. In 2005 Mwaanga, a staunch Chiluba ally, was rehabilitated when Mwanawasa appointed him to parliament as a nominated member. Long associated with corruption, Mwaanga's re-emergence may be an indicator of Mwanawasa's own corruption, of an ethical double standard, of the president's newfound sense of security, or all of these.
46. 'Zambian leader says Chiluba must be tried for corruption', Panafrican News Agency (PANA) Daily Newswire, 11 July 2002.
47. Mulenga et al, Satisfaction with Democracy.
48. Rakner, Political and Economic Liberalisation.
49. Ibid, p 129.
50. Simuchoba, 'Corruption under Zambia's Frederick Chiluba', p 14.
51. This dominance was the result more of voter apathy, the opposition's fragmentation and its boycott of the 1996 election, and election fraud than of MMD's popularity per se.
52. By October 2004 the USA had contributed over $2 million to the investigation. 'Zambia: Anticorruption crusade yields no advance', SouthScan, 29 October, 2004, pp 4 - 5.
53. C Fraser, 'Zambia's "matrix of plunder"', BBC News, 9 December 2003, at http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/africa/3302419.stm.
54. Confidential interview, Task Force Member, 16 October 2003.
55. Rakner, Political and Economic Liberalisation.
56. See C Gicheru, 'Kenya: A country of bribes', in The Corruption Notebooks,Washington, DC: Center for Public Integrity, pp 161 - 175.
57. In December 2003 The Nation reported that more than $1 billion (Ksh75 billion) looted from Kenya was discovered by the London-based firm Kroll, Inc in recoverable assets and cash, some of it stashed in foreign bank accounts by members of the KANU regime. This reportedly represents only a quarter of the estimated US$3 - 4 billion (Ksh225 billion - 300 billion) in misdirected funds, equivalent to a third of Kenya's GDP. 'The lost assets fall into the following three main categories: Fictitious payments on Kenya's foreign debt; looting from the Central Bank through Goldenberg-type transactions; and looting through construction and computerisation contracts'. 'Found: Sh75bn stashed abroad by Kanu looters during Moi's rule', The Nation, 17 December 2003.
58. Kibaki's inauguration speech, 31 December 2002, at http://www.nationaudio.com/News/DailyNation/31122002/News/ News3112200231.html.
59. W Wallis, 'Kenyans discover that corruption is a hard habit to kick: But evidence of ill-gotten gains revealed at public inquiry demonstrates clean-up efforts being made', Financial Times, 16 December 2003, p 12.
60. Gicheru, 'Kenya', p 168. Wallis, 'Kenyans discover', contends that $600 million represents only half of the Goldenberg proceeds.
61. Wallis, 'Kenyans discover'.
62. Gicheru, 'Kenya', p 171.
63. 'Moi "ordered" Goldenberg payment', BBC News, 17 February, 2004, at http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/africa/3495689.stm.
64. Confidential interview, Ministry of Foreign Affairs, 16 December 2004.
65. In October 2003 Kibaki suspended 23 judges (six justices of the Appeal Court; 17 High Court judges) for corruption; some 82 magistrates were also placed under investigation. 'Day of reckoning for Kenya graft', BBC News, 20 October 2003, at http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/ africa/3208206.stm. Fifteen of the senior judges resigned with full retirement benefits, rather than face special tribunals. Only Justice Philip Waki successfully challenged his removal. Interview with Moi's lawyer, Mutula Kilonzo, Nairobi, 16 December 2004.
66. Interview, Kilonzo, 16 December 2004.
67. According to the Kenya Gazette Notice 1556 (14 March 2003) establishing the commission, it had the discretion not to call witnesses, as it saw fit. This discretion was upheld by the Court. 'Goldenberg inquiry to reopen', The Nation, 2 February 2005.
68. J Vasagar, 'Moi to escape prosecution', Guardian Weekly, 5 January 2004, p 2.
69. 'Prosecution is the weakest weapon in graft war', The Daily Nation, Nairobi, 8 June 2004. Interestingly, Zambian government representatives voiced precisely the opposite sentiment: 'The legal system and the protections of due process helps to depoliticise the trial as much as possible'. Confidential telephone interview, 21 February 2005.
70. B Namunane & J Bosire, 'No end to Githongo mystery', The Nation, 7 April 2005.
71. T Wolf, C Logan & J Owiti, A New Dawn? Popular Optimism in Kenya after the Transition, Afrobarometer Working Paper No 33, March 2004, pp 3 - 4.
72. Interview, Ezekiel Mutua and T Okoko, Kenya Union of Journalists, Nairobi, 7 December 2004.
73. Wolf et al, A New Dawn?
74. Personal comment, Professor Njuguna Ng'ethe, Institute of Development Studies, University of Nairobi, 7 December 2004.
75. Interview, Maina Kiai, Chair, Kenya Human Rights Commission, Nairobi, 16 December 2004.
76. 'How ministers defended themselves over graft', East African Standard, 20 February 2005.
77. Allegedly, two government contracts were illegally awarded to Anglo Leasing and Finance to supply secure passports and forensic police labs. Payments of some US$90 million were made to the company. J Mulama, 'Corruption: Kenya grapples with two major scandals', Inter Press Service, 5 January 2005.
78. Interview, Ahmednassir Abdulalhi, Chairman, Law Society of Kenya, Nairobi, 9 December 2004.
79. Gillespie & Okruhlik, 'The political dimensions of corruption cleanups', p 91.
80. G Imanyara, 'Here is the evidence of corruption', East African Standard, 13 August 2004; and interview, Gladwell Otieno, Director of Transparence International - Kenya, Nairobi, 14 December 2004.
81. Interview, Otieno, 14 December 2004.
82. Interview, E Mutua and Okoko, Kenya Union of Journalists, 7 December 2004. The informants cited numerous examples of state abuse and intimidation of the independent media, for example.
83. Interview, Otieno, 14 December 2004.
84. Wolf et al, A New Dawn?, pp 47 - 49, emphasis added.
85. Interview, E. Mutua and Okoko, 7 December 2004.
86. Some US$135 million was spent on Harambee projects from 1980 to 1999. President Moi was by far the biggest donor, followed by members of his cabinet. Both the funds and the projects were subjected to minimal oversight or accountability. Transparency International - Kenya and Friedrich Ebert Stiftung, Harambee: Pooling Together or Pulling Apart?, Nairobi, 2001.
87. Indeed, one strongly anti-Moi respondent told me that 'I am not ashamed to admit it: Even I benefited [from Moi's largesse] by means of a university bursary'. Interview, 7 December 2004.
88. Church leaders have shown little compunction about attacking perceived corruption by NARC, however. 'Bishops threaten to lead mass revolt against Narc', East African Standard, 19 February 2005.
89. Interview with an editor of a leading independent newspaper, Nairobi, 7 December 2004.
90. G Mathenge & P Ng'etich, 'Leaders' verdict on Moi in the Goldenberg case', Sunday Nation, 5 December 2004.
91. See L Landolt, '(Mis)constructing the Third World? Constructivist analysis of norm diffusion', Third World Quarterly, 25 (3), 2004, pp 579 - 594.
92. See Imanyara, 'Here is the evidence of corruption'.
93. Confidential interview, Ministry of Foreign Affairs, 16 December 2004.
94. A England, 'Corruption allegations jeopardize aid for Kenya', Financial Times, 23 July 2004, p 8. Clay's various allegations, and the respective ministers' responses to them, are highlighted in 'How ministers defended themselves over graft'.
95. Donors fund only about 8% of the Kenyan budget, versus nearly 50% for Zambia. Interview, Michael Fitzpatrick, Political Officer, and Wallace Bain, Economics Officer, US Embassy, Nairobi, December 2004.
96. Frank Holmquist, personal comment, November 2004.
97. W Ochieng, 'Zambia: Leadership, graft and punishment', The Nation, 21 July 2002.
98. Quoted in Mathenge & Ng'etich, 'Leaders' verdict on Moi in the Goldernberg case'.
99. Ibid.
100. '"Explain Bulaya's nolle" Finnish envoy urges gov't', The Post, 31 May 2005.
101. 'ACB launches Muluzi probe', Liquid Africa, Comtex News Network, 23 May 2005.
102. Collier, 'How to reduce corruption'.
103. See de Sardan, 'A moral economy of corruption in Africa?';
104. and Wolf et al, A New Dawn?
105. 'Zambia: Anti-corruption crusade yields no advance', p 4
106. and 'Corruption getting worse', The Post, 30 June 2004.
107. Mid-ranking civil servants are reportedly no longer 'just following orders' but increasingly assume responsibility for actions carried out at the behest of self-serving superiors by insisting upon documentation - a 'paper trail' - both to hold superiors accountable and to protect themselves. Confidential telephone interview with Task Force representative, 21 February 2004.