Kenya needs stronger legal and informal frameworks to enable the proper functioning of its institutions. 

In their book, Why Nations Fail: The Origins of Power, Prosperity and Poverty, Daron Acemoglu and David Robinson infer a fundamental minimum for a properly functioning nation — the precision of political and economic institutions. Institutions, as defined by Nobel Prize laureate Douglas North, are humanly devised constraints that structure political, economic and social interactions. North further states that these include both formal constraints (constitutions, laws, property rights) and informal ones (sanctions, taboos, customs, traditions and code of conduct) and their enforcement structures.

The concept of institutionalism is a mix of both the formal and informal rules in a context. None can exist in separation to guarantee effective and efficient functioning of a society, organization, firm or any other arrangement. The thought of institutionalism has evolved to include norms of behavior in a concept referred to as “new institutionalism.” New institutionalism is cognizant of the fact that institutions do not exist in a vacuum and are occupied by people who have biases. Therefore, it is imperative for the proper working of these institutions that the biases of the individuals correspond to the constraints that inform the system.

In this context, the history of Kenya’s institutions is hardly inspiring. Arguably, the challenge on the political scene has been to instill an institutional space that will be an antidote to impunity of the “supreme leaders.” On the economic front, regulatory authorities have been up in arms to make sure that various industries stick to respective operational scripts. From the clamor for multi-party politics in the early 1990s and through the adoption of the new constitution, the outstanding theme has been that of creating or enhancing Kenya’s institutions to foster inclusivity, civic freedoms and accountability. The need for independent and well-functioning institutions was touted as a solution to some of the problems the country faces, such as inequitable allocation of resources, disregard for law and ethnocentric politics.

Economically, strong and stable institutions have been found to have a greater bearing on the fortunes of a country’s economy, hence Kenya’s obsession with creating credible and operational systems. However, amidst setting up all the formal constraints that formulate the framework of a system or even creating constitutionally founded independent institutions, Kenya still comes up short. The country’s Ethics and Anti-Corruption Commission, a supposed watchdog tasked with investigating economic crimes, corruption and abuse of office, found itself in hot water when its former chairman was implicated in one of the biggest scandals in the country.

The National Land Commission, a constitutional body formed to oversee land administration, saw the homes of its chairman, Muhammad Swazuri, and a number of officials raided as part of an investigation into complaints of irregular compensation for projects, with 17 million Kenyan shillings ($160,000) in cash seized from one member of the commission’s staff. The precursor of the Independent Electoral and Boundaries Commission, the Interim Independent Electoral Commission officials and the Kenya National Examination Council officials were mentioned in connection with the bribery scandal code named “Chicken.” Representatives of one of the companies involved, Smith and Ouzman Limited, were charged and jailed in the United Kingdom, while the Kenyan accomplices are yet to be brought to book.

In all the above incidences, a lack of a strict system of punishment and a disregard for social norms and values is endemic. One can conclude that the problem in Kenya is not the institutional system itself or its formal constraints, but the lack of adherence to informal constraints and missing restraining incentives. This is the angle that the authors of any reform should focus on.

The guiding principles for stakeholders, as espoused in the Kenya Integrity Plan, should serve to reinforce the legal framework of constraints and counterweight the informal irregularities that create chaos within the system. Mainstreaming integrity and ethical conduct, culture, norms and traditions is the most important aspect of the reform process. The prevalence and normalization of graft, fueled by an almost dysfunctional system when it comes to the big fish of corruption, creates a negative system of a new normal that impedes any societal progress.

A precise portrait of an institutional functionality was captured by the president of the Supreme Court of Kenya, Chief Justice David Maraga, when issuing the landmark ruling on the 2017 presidential election petition that sent ripples around the world. He unequivocally stated that the supremacy of any nation lies in its loyalty to its constitution, rule of law and, above all, the fear of God. The Supreme Court ruling was hailed across the world, albeit not short of its share of criticism. In essence, in one statement Chief Justice Maraga implored the tenets that should govern an institution that capture the informal constraint of norms, traditions and values.

It is safe to say that if Kenya is to realize its great potential, there are aspects of its institutional framework that it must get right. First, there must be strict adherence to the formal constraints that support the system of interactions. Second, the system of incentives must be discouraged at all costs. Finally, the system of punishment has to be astute, independent and efficient in dispensing its justice.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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