David Ndii’s Amnesty For Past Corruption Cases in Kenya is a Bad Idea

Debates on granting amnesty to criminals, terrorists and other violators of human rights is not a new one. Many strands of this argument have been made since the signing of the Universal Declaration of Human Rights on 10^th December 1948. In its basic form, an amnesty is “a pardon by the government to a group or class of people, usually for a political offense; the act of a sovereign power officially forgiving certain classes of people who are subject to trial but have not yet been convicted.”[i] At the heart of amnesty in post-conflict scenarios, is the question of how a country should rectify the crimes of the former conflict and move on with its future.

In conflict and post-conflict situations, political instability complicates the questions of how political crimes can be prosecuted and punished, and this is what expands the conversation into other comparable penalties for horrific political crimes.

Retributive justice is often the first option to be put on the table, that is, punish offenders in ways that the punishment is proportional to the crime. However, in situations where the prosecution of the criminals has the potential of destabilizing the transition from conflict to peace, where such punishment can instigate a coup d’état, renew hostilities, damage the economic and infrastructure, or fuel the killing of political opponents and civilians, peace negotiators often put restorative justice on the table.

At the heart of what forms of justice to pursue is the question of whether the government, and other state institutions, have the ability to administer justice. In a country, where the government has functional institutions for administering justice, countries where the threat of instability and collapse as a result of prosecutions is minimal, amnesty is often used to show mercy and benefaction. In countries emerging from conflicts, countries with no functional institutions for administering justice, the fear of resumption of hostilities is one of the main justifications for amnesty. Amnesty laws offer a path out of past hostilities and an opportunity to chart a future path of reconciliation and reconstruction. It is for this reason that amnesty remains a common tool for restorative justice in post-conflict transitional scenarios.

David Ndii, a Kenyan economist and public intellectual, in an interview about Ruto-nomics on TV47 Kenya, proposed amnesty for past corruption cases. Ndii is one of the most influential economists in the world. He has been described before as “one of Africa’s best-known economists and an outspoken corruption crusader.”

Within the context of the Kenyan situation, I found the argument bewildering and intellectually dishonest. First, while David Ndii brilliantly champions for a bottom-up economic model, his call for amnesty for corruption deliberately sidesteps the role played by endemic corruption in consigning a majority of Kenyans to poverty. There is a high probability that amnesty for past corruption will deny the public their aspirations for recovering stolen public resources, and embolden current and future corrupt public officers. Second, Ndii has joined DP William Ruto’s 2022 campaign team as an economic strategist. While every Kenyan has the right of political association, pushing for amnesty just after taking a job offered by a political leader implicated in numerous corruption cases leaves a bitter taste. One wonders if a pro-corruption agenda ought to be in any campaign strategy in Kenya. Third, and more importantly, there is no justification for elevating grand corruption, a pastime of Kenya’s ruling elite, to be a special crime that requires special considerations outside the existing provisions in the laws of Kenya. Small corruption cases are being prosecuted in our courts. Big corruption should be prosecuted too. We should uphold equality before the law.

When public intellectuals like David Ndii talk about amnesty for corruption cases, they are making a tacit assumption that corrupt people in Kenya, the famed ‘corruption cartels’, have the capability of plunging the country into violent conflict were they to be prosecuted. Ndii argues that corrupt patronage networks have captured all constitutionally mandated bodies charged with the responsibility of investigating, prosecuting, and punishing economic crimes; that to free these institutions, we should pursue amnesty as a solution. The diagnosis may be right, but amnesty is not the medicine for the supposed capture of the criminal justice system.

Ndii conveniently leaves out the definition of “past”. How far in the past will the amnesty go and why? But he is quick to clarify that “past” includes those in the Jubilee government which terminates in 2022. He is categorical that such an amnesty should include all current leaders holding public officers, including DP William Ruto. David Ndii preempts that Kenyans, might and rightly so, push for the prosecution of those who have been involved in the plundering of Kenya during the UhuRuto regime (2013-2022). DP William Ruto, on whose behest David Ndii is restarting the amnesty conversation, is not ashamed to present Kenyans with a pro-corruption manifesto, that we ought to let go those who have been stealing from Kenyans. The argument is blind to the precedence such a law or policy would engender. Every regime would gladly squeeze in a corruption amnesty clause at the tail end of its days in office.

I am not convinced that the corrupt cartels in Kenya draw their power from electoral constituencies, to an extent where their prosecution may instigate violent hostilities against the state or against those supportive of the prosecution of corrupt cartels. Political patronage networks only exist because those given the responsibility of managing the country’s resources have elevated their personal interest above the public interest. They have ceased being custodians of the country’s wealth and become plunderers. Those occupying positions of investigating, prosecuting and punishing corrupt government officials know who these criminals are, but are either held in a stranglehold by their superiors or by their own greed. They do not act against corruption because they gain more, materially, through inaction or complicity. Corruption is a highly profitable enterprise in Kenya. The rewards far outweigh the risks.

Kenyans do not need laws or policies that increase the rewards for corruption while lowering the risk of engaging in corrupt practices. We need laws and policies that increase the risk of punishment and diminish the rewards of corruption. Kenyans do no need amnesty for corruption cases. They need those cases to be prosecuted and the guilty punished. A government may fail, for a million reasons, to successfully prosecute cases, but such failure, mostly borne of political will and incompetence, is not a strong argument for cushioning the plunderers of today from punishment tomorrow.

We only need political will to prosecute big corruption cases. Talks of amnesty are indications that the Ruto Presidency, if/when it comes to be, will not prioritize anti-corruption. While Ndii makes the amnesty argument, we are seeing what is happening in Angola. We are seeing how Angolan courts are dealing with the dos Santos family. When José Eduardo dos Santos handed over the presidency to Lourenço after 38 years, the dos Santos clan did not know the new president had other ideas. Lourenço’s anti-corruption crusade is hitting them squarely on the head. Kenya is no different. We only need political will. There should be no Kenyan, of voting-age and sound mind, who should, in all honesty, push forward vote for amnesty for past corruption cases.

Beyond ethnic pockets of parochialism, Kenyans would rejoice if big corruption masters were prosecuted and put behind bars. We know corruption fights back. We know cartels are dangerous and can get you killed, but we also know that there are no corruption cartels in Kenya that can survive the uprising of the people. They will be purged in the blink of an eye. A glimpse of history shows us that cartels that can instigate state collapse exist only in countries with weak and collapsing criminal justice systems, or countries led by warlords and military strongmen cum presidents.

Kenya is not emerging from a long-drawn violent conflict. Amnesties should be preserved for peace negotiations in post-conflict conflict contexts, for peacebuilding and reconciliation — to calm down insurrections and mark the cessation of fire. There is a long history of ruling elites using amnesties as gestures of mercy and benefaction to the citizenry, but they should not be used by ruling elites to protect their plunder. Amnesties for corruption will fuel impunity and undermine the rule of law. It is a bad idea and should be met with utmost resistance.

[i] Bryan A. Gardner (ed.). 2009. Blacks Law Dictionary (9th ed.). St. Paul, MN: West, p. 99