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The politics of anti-corruption reform in Africa*

Published online by Cambridge University Press:  18 February 2009

Letitia Lawson
Letitia Lawson*
Affiliation:
Naval Postgraduate School, Monterey, CA, USA
*
Email: lllawson@nps.edu
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Abstract

Previous research on anti-corruption reform in Africa falls into two camps. The first explores ‘best practices’ and policy approaches to controlling corruption, while the second focuses on the politics of anti-corruption ‘reform’, arguing that official anti-corruption campaigns aim to mollify donors while using corruption charges instrumentally to undermine rivals and shore up personal loyalty to the president, and thus have no chance of controlling corruption. This paper suggests that, while the neopatrimonial context is a very significant limiting factor in anti-corruption reform, limited progress is possible. Examining the motivations and effects, intended and unintended, of anti-corruption reforms in Kenya and Nigeria, it finds that while the Kenya Anti-Corruption Commission has indeed been politically marginalised and largely ineffectual, the more autonomous and activist, but politically instrumentalised, Economic and Financial Crimes Commission in Nigeria has had a measure of success. The analysis suggests that this is explained by the EFCC's independent prosecutorial powers and the institutionalisation strategies of its chairman.

Information

Type
Research Article
Information
The Journal of Modern African Studies , Volume 47 , Issue 1 , March 2009, pp. 73 - 100
Copyright
Copyright © 2009 Cambridge University Press

INTRODUCTION

It is no coincidence that anti-corruption agencies have proliferated in Africa since the World Bank decided that public sector reform in general, and corruption control in particular, are critical to facilitating the success of its long-stalled economic liberalisation programme. The Bank and like-minded analysts seek to tackle corruption on two fronts, one structural and one normative. On the structural front, the reform agenda begins from Klitgaard's (Reference Klitgaard1988) pithy observation that discretion plus monopoly minus accountability equals corruption. Reforms are thus targeted to reduce discretion of public officials through privatisation and deregulation, reduce monopoly by promoting political and economic competition, and increase accountability by supporting democratisation (for political accountability) and bureaucratisation (for administrative accountability). On the normative front, efforts by the Bank and Transparency International (TI) to raise awareness of the extent and adverse effects of corruption have been identified as the first stage in the creation and diffusion of a global anti-corruption norm. The proliferation of legal policy instruments for controlling corruption is seen as the second stage in the emergence of such a norm, but the survival of the norm is seen to depend upon effective implementation and close monitoring by activist civil societies and the international community (McCoy & Heckel Reference McCoy and Heckel2001). In short, this liberal approach involves reducing opportunities for corruption and making corrupt activities more risky for their perpetrators, while persuading those who would engage in such activities to feel ashamed.

Critics of the approach have responded on both fronts. They note that those called upon to make the structural changes necessary to limit opportunities for corruption are the very actors who benefit most from the status quo. Donor pressure on aid-dependent governments normally does produce change, but change that is limited and manipulated by agents to serve their interests. Where the ruling bloc is relatively cohesive, implementation can be expected to be lax, and powerful individuals to be insulated from scrutiny (M. Collier Reference Collier2002; Harrison Reference Harrison1999; Tangri & Mwenda Reference Tangri and Mwenda2006).Footnote 1 Where there is more competition among big men within the state, anti-corruption policies can be expected to be instrumentalised by the president to purge those perceived as a threat while reinforcing the personal loyalty of others (Bayart Reference Bayart1993; Chabal & Daloz Reference Chabal and Daloz1999).Footnote 2 Given that there are very few (if any) powerful individuals who are not guilty of corruption in a predominantly neopatrimonial political system, a president who can influence who is (and who is not) targeted by anti-corruption agencies has a powerful instrument for disciplining followers, while taming or eliminating threats. On the normative front, critics argue that the anti-corruption norm is less universal than liberal internationalists suggest (M. Collier Reference Collier2002; P. Collier Reference Collier2000; Hasty Reference Hasty2005; Mishra Reference Mishra2005; Mungui-Pippidi Reference Mungui-Pippidi2006; Olivier de Sardan Reference Olivier de Sardan1999). Paul Collier and Mishra both argue that the incentives created by pervasive corruption generate social norms that make corruption self-perpetuating. Mishra (Reference Mishra2005: 350) notes that ‘when there are many corrupt individuals in the society, it becomes optimal to be corrupt despite the presence of anti-corruption policies and incentives. This way corrupt behavior becomes the equilibrium behavior or the social norm.’ Collier (Reference Collier2000) argues similarly that the pervasiveness of corruption gives individuals little cause to feel guilty about their own behaviour, and this combined with low risk of punishment and high social expectations of corruption makes corruption self-perpetuating. Mungiu-Pippidi (Reference Mungui-Pippidi2006) and Michael Collier (Reference Collier2002) argue that norms about corruption are embedded in the mode of social organisation, and are not readily displaced through international diffusion of anti-corruption norms from more universalistic/egalitarian to more particularistic/collectivist societies. Olivier de Sardan (1999: 48) and Hasty (Reference Hasty2005) identify more specifically African social norms and practices that facilitate (but do not cause) generalised corruption and leave individuals feeling trapped ‘in the face of an infernal mechanism’.Footnote 3

Given these structural and normative realities, anti-corruption strategies that depend on ‘enlightened leadership’ to push through reforms (against their own interests) in the short term, and idealised civil societies to make them stick in the longer term, have little hope of success. However, a more grounded approach, which begins from the reality of self-interested elites and embryonic civil societies, need not lead to the conclusion that anti-corruption reforms are doomed to failure. A more disaggregated analysis of individual elite interests and contextual factors suggests that over the longer term anti-corruption reform may succeed in some cases, despite being instrumentalised. Gillespie and Okrulik (Reference Gillespie and Okrulik1991) provide such an analytical framework, associating the specific dynamics of particular ‘clean-ups’ with the political contexts in which they are initiated.Footnote 4 Post-election clean-ups, with which we will be concerned here, are generally initiated in response to electoral demands and challenges from the political opposition, designed to consolidate power and facilitate re-election, and implemented through enhancements of legal restrictions and punishments to strengthen allegiances to the ruling party (ibid.: 85).Footnote 5 This is consistent with the arguments of the political camp above. However, they also find that while clean-ups are always intended to fortify the political position of the head of state, they often have the opposite effect. Post-election clean-ups that are perceived by the public as cynical attempts to weaken opposition and shore up the ruling party can produce popular cynicism and reduce the chances of re-election. Thus, reform agencies must have credibility if they are to serve the political purposes of their creators. This creates a situation in which presidents may lose (some) control over reform agencies over time. ‘A clean-up can backfire as high level targets are gradually incorporated, even reaching the immediate family of the head of state. Clean-ups that begin as carefully designed programs can threaten the incumbent in the end’ (ibid.: 88).

Recent research on anti-corruption reform in Africa extends these insights, focusing more specifically on the neopatrimonial context in which post-election reforms are initiated. Insofar as informal patron–client networks maintained by privatisation of public resources constitute the real sinews of political power in Africa, ‘corruption’ is a defining element of the state itself. The weak bureaucratic capacity of neopatrimonial states means that monitoring and enforcement are difficult, even when there are real efforts to contain corruption. Kjaer's (Reference Kjaer2004) review of public sector reform in East Africa affirms the conventional wisdom that neopatrimonialism tends to block reform, but argues that it cannot account for why reform does happens when and where it does. She asserts that political context explains what neopatrimonial incentives cannot, but the evidence she presents is more consistent with the argument that contextual factors matter within the broad incentive structures associated with neopatrimonial politics.Footnote 6 Taylor (Reference Taylor2006) similarly sets out to debunk neopatrimonial arguments as too deterministic to account for divergent responses to the corruption of ex-presidents in Zambia and Kenya, but his account again highlights contextual variations within neopatrimonial incentives.Footnote 7 Still, the overarching argument of Kjaer and Taylor – that multiple outcomes are possible under neopatrimonial constraints – is path-breaking.

This paper builds upon this scholarship, by considering not only intended, but also unintended, consequences of reform initiatives. Unintended consequences, specifically a broadening of the anti-corruption campaign, may result from opponents of the president gaining influence over anti-corruption agencies, from popular mobilisation and pressure for real reform, or anti-corruption agencies themselves becoming emboldened to go beyond the limits imposed upon them by political interests. However, capture of anti-corruption agencies by opposition forces would likely extend the politicisation of anti-corruption reform, undermining its legitimacy and efficacy. Similarly, popular mobilisation sufficient to force a broadening of anti-corruption reforms in the current African context seems very unlikely. Therefore, I focus here on the third possibility: institutional consolidation driven by anti-corruption agencies and their leaders in the face of political resistance. Certainly presidents will attempt to weaken or dismantle institutions of their own making if those institutions begin to threaten their personal power (Migdal Reference Migdal1988). But they may not always succeed.

Thus, this is largely the story of the struggle between political interests seeking to use anti-corruption reforms instrumentally and the anti-corruption agencies themselves, especially the individuals who head them, whose personal and bureaucratic interests would be served by increasing their autonomy and implementing their organisational mandates more fully. This struggle has been played out very publicly in Kenya and Nigeria in recent years. These two cases are well matched for comparative analysis: both are characterised by relatively complex social and political interests; politics in each has been largely defined by competing patron–client networks operating along ethnic lines; both are less aid-dependent than most countries in the region; both are economic and political powerhouses in their respective sub-regions; Global Integrity rates anti-corruption laws ‘very strong’ and anti-corruption agencies ‘strong’ in both; and they were tied for 142nd (out of 180) in TI's 2006 Corruption Perception Index (TI CPI 2006), when the efficacy of their respective anti-corruption agencies began to be tested. Anti-corruption agencies' investigations of grand corruption in the two countries have involved the theft of state resources by high-level government officials using similar rent-seeking and money-laundering practices. The range of opportunities for corruption is broader in Nigeria than in Kenya, given that Nigeria's main economic asset – petroleum – is state-owned. However, the processes of converting public to private assets are largely the same: officials enter into government contracts with private companies for goods and services that are vastly over-priced, never delivered, or both. In some cases, such as that of Nigerian State Governor Orji Uzor Kalu, these companies are owned by the official or his family members (This Day 18.7.2007); in others, such as the Anglo Leasing contracts in Kenya, the companies are shells or actual companies owned by private accomplices of government officials, who share in the profits of the illicit activity (Githongo Reference Githongo2005; Kenya 2006). Although ongoing, the struggle between political interests and the Kenya Anti-Corruption Commission (KACC) is being won by the politicians, while the Economic and Financial Crimes Commission (EFCC) in Nigeria is making a surprisingly strong showing. The explanation for this lies in variations in the way the anti-corruption game has been played in the two countries. In Kenya, President Kibaki and his inner circle marginalised the KACC, while the KACC leadership did little to improve its bargaining position vis-à-vis the political elite. In Nigeria, President Obasanjo and his inner circle instrumentalised the EFCC, while the EFCC leadership took a number of steps to strengthen its bargaining position vis-à-vis the political elite. The comparative analysis suggests that instrumentalisation rather than marginalisation is necessary but not sufficient for a broadening of the anti-corruption campaign over time, and that the anti-corruption agencies' own capacity building initiatives are the critical factor facilitating a real, if still limited, assault on grand corruption.Footnote 8

KENYA: NEOPATRIMONIALISM WINS AGAIN

Having served for more than a decade as Kenya's vice-president, Daniel arap Moi acceded to power upon the death of President Jomo Kenyatta in 1978. Mwai Kibaki served as his vice-present for the next decade, and then as minister of health from 1988 to 1991. Moi ruled within the framework of a one-party state until 1992 when, under pressure from the international community, he instituted a multiparty political system. An opposition coalition formed, but soon split along ethnic lines. As a result, Moi faced several opposition candidates in presidential elections in 1992 and 1997, winning both with a plurality of the vote, before being term-limited out in 2002. The opposition was finally able to organise itself to support a single candidate, Mwai Kibaki, in 2002.Footnote 9 Kibaki campaigned on a reform platform, committing himself to reining in rampant corruption, and defeated the ruling party candidate, Uhuru Kenyatta. Hopes within the donor community that Kibaki's election would mark a new era in Kenyan politics and a real effort to combat corruption were naïvely high, and soon dashed.Footnote 10

President Kibaki's anti-corruption programme was a response to internal and external demands for reform, a fulfilment of his own campaign promises, and a means of unfreezing $1 billion in foreign aid. The appointment of John Githongo to head a new department of governance and ethics sent the right message to local and international audiences. As the founding executive director of the Kenya chapter of Transparency International, Githongo had full credibility with the international community; his war of words with the Moi regime as a columnist in the East African newspaper gave him a similar level of visibility and credibility with Kenyans.

After six weeks on the job Githongo reported that ‘gigantic patronage networks’ had been disrupted – temporarily. Noting that the experience of other African countries indicated that networks of corrupt officials tend to regroup in about two years, he asserted that the ‘major changes we can make in the next … 18 months’ would be critical (BBC News 28.2.2003). This conventional wisdom about a window of opportunity after a new government comes into office is also cited in the scholarly literature (Bienen & Herbst Reference Bienen and Herbst1996; Kjaer Reference Kjaer2004; Taylor Reference Taylor2006; van de Walle Reference van de Walle1999). The logic of the argument is that new leaders will be less tied to existing patron–client networks, and more inclined to reform. The first part is almost true by definition; the second is more questionable. Precisely because new leaders are less tied to the patron–client networks that are the real power structures in African neopatrimonial states, they have a greater and more pressing need to establish networks of support to compete with those left behind by their predecessors. They need to appropriate more public resources, faster, to establish themselves at the top of the informal power structure that underpins the formal, but largely powerless, institution to which they have been elected, and to keep themselves there.Footnote 11 However, this window is a period of instability in the informal political system, as networks are being broken up and realigned, which may allow aggressive anti-corruption agencies to consolidate their own positions before the window closes and political interests, having established a new equilibrium, are in a stronger position to roll them back. In Kenya it did not. Very high levels of grand corruption in 2003–5 were followed by a systematic assault on anti-corruption agencies in 2005–7. Githongo's time line proved remarkably prescient. At the end of June 2004, exactly eighteen months after his appointment, with evidence of massive corruption by the incumbent government becoming public, the big men began their move against him. Kibaki moved Githongo's department from the Office of the President to the Ministry of Justice and Constitutional Affairs, which would have stripped him of presidential protection. This move drew immediate protest from civil society and the international community, and Githongo was returned to the Office of the President within days (Otieno Reference Otieno2005: 76). This was the beginning of a struggle between competing networks within the cabinet, sparked by fears within the dominant network that Githongo's investigations threatened their position (Githongo Reference Githongo2005: 13; Standard 29.1.2006). In January 2005, at his two-year mark, Githongo resigned and fled into self-imposed exile in fear for his life (BBC News 12.9.2006). The anti-corruption effort in Kenya has been extremely anaemic, largely because those charged with it have accepted that their efforts are useless without the personal support of the president. There was little effort to defend the agencies or their mandates when it became clear that this commitment was rhetorical.

Anatomy of a struggle i

The twin corruption scandals that bedevilled the Kenyan government and implicated Presidents Moi and Kibaki are fairly straightforward. Big men in control of the executive branch used fictional front companies to appropriate public funds for personal and political uses. The Goldenberg Affair revolved around a deal between government officials and businessman Kamlesh Pattni. Pattni agreed to remit $50 million annually to the Central Bank of Kenya in exchange for a monopoly on gold and diamond exports from Kenya and government compensation of 35% on his exports. Pattni then proceeded to export fictional commodities to fictional companies that paid for them in fictional foreign exchange. The only thing that actually changed hands was the 35% compensation from the Government of Kenya to Pattni, which was then shared out among his official accomplices (Kenya 2005; Scher Reference Scher2005; Warutere Reference Warutere2005). The scheme was active mostly between 1991 and 1993. Investigations and court proceedings of various kinds have been ongoing since 1996, with none of the major players having been held accountable. The Anglo Leasing scandal involves similar dealings, which began towards the end of the Moi administration and carried over seamlessly into the Kibaki administration. Like the Goldenberg Affair, Anglo Leasing is representative of a much broader constellation of similar deals. This case involved government contracts for goods and services that were paid for but never received from companies that did not exist. The Anglo Leasing scandal first became public in May 2004 (Githongo Reference Githongo2005; KNA 2006; Otieno Reference Otieno2005).

Multiple investigations of the scandals indicate that these deals were standard operating procedure, and that knowledge, if not direct involvement, was widespread among the highest echelons of elected officials and civil servants (Githongo Reference Githongo2005; Kenya 2005). The Goldenberg Affair was handled by a judicial Commission of Inquiry, while Anglo Leasing was investigated by Githongo and the KACC. The focus here is thus on the latter. Githongo learned of the involvement of Minister of Finance David Mwiraria and Minister of Security and Transport Chris Murungaru in Anglo Leasing in March 2004, and asked the KACC, which had been established by the Anti-Corruption and Economic Crimes Act in April 2003 and begun operation in October of that year, to open an investigation (Githongo Reference Githongo2005).Footnote 12 As Permanent Secretary for Governance and Ethics, Githongo operated largely as a one-man show under the ostensible protection of the president. He made no effort to insulate himself bureaucratically, and as a result left no institutional footprint in his wake. In his own words (ibid.: 16):

the list of suspect contracts by fictitious companies grew by the day although the cast of characters was the same … In my estimation we were sitting on roughly USD700 million worth of contracts – some of them highly dubious. If one brought in the even murkier and more secret military ones, then the figure was over USD1 billion. Its not as if all the money was in the pipeline to be stolen but clearly from all the circumstantial evidence, and from what I had been told by some of the perpetrators themselves and as H.E. the President had acknowledged to me on several occasions – we had a major graft problem and it was being perpetrated by characters within our administration. On Sunday 24th October 2004 I met with Simeon Nyachae, the Minister of Energy … We discussed the fact that high level corruption was everywhere and acknowledged that people like Hon. Murungaru were involved in Anglo Leasing. He explained that Hon. Murungaru was involved in raising Ksh.5 billion for the next election through these schemes. Naturally, I was deeply frustrated by the limited action despite the evidence available. By the end of October I had started the process of down-sizing my department and sending back civil servants to the departments from which they had originally hailed.

Githongo's departure left anti-corruption efforts in the hands of the KACC. Justice Aaron Ringera had been formally appointed as Director only in September 2004. Some suggest that Ringera, a former law partner of Minister of Justice Kiratu Murungi, another prime target of Githongo's Anglo Leasing enquiries, was appointed to obstruct, not advance, grand corruption investigations (BBC News 23.1.2006). This suspicion was reinforced by Kibaki's veto of the appointment of Julius Rotich as Deputy Director, and Githongo's claim that Ringera told him that he (Ringera) would not touch a scandal that reached as high as the president (Githongo Reference Githongo2005: 16). His position on ministers, including Murungi, would turn out to be more nuanced. Overall, the actions of the KACC under his leadership suggest that he, like his counterpart in Nigeria, is a pragmatist. Despite Githongo's information on ministerial involvement, the initial KACC investigation into Anglo Leasing named only top civil servants, recommending seven for prosecution by the Attorney General. The recommendation was accepted for six, while the seventh was to give evidence against the others (KACC Quarterly Report January–March 2005). Kibaki's government considered the matter closed, and set about riding out the storm.

A second wave struck in January 2006, when a narrative report by Githongo documenting his knowledge of ministerial involvement in Anglo Leasing became public, along with a tape recording in which Murungi allegedly implicates himself. Ringera announced that he would question the ministers about Githongo's accusations (Africa Confidential 17.2.2006). Murungaru, having been sidelined in a cabinet reshuffle in November 2005, told the KACC on 29 January that he was innocent of wrongdoing in the contract under investigation, underscoring this claim by reporting that the contract had been personally approved by Kibaki (Nation 30.1.2006).Footnote 13 This was classic chameleon evidence. Did Kibaki's approval indicate Murungaru's innocence or Kibaki's guilt? The local press, having been provided with a copy of the statement by Murungaru himself, tended to think the latter. If Murungaru's sacking in November indicated that Kibaki would no longer protect him, Murungaru's statement in January indicated that he would no longer protect Kibaki. Mwiraria and Murungi went the other way, resigning their posts in February, to clear their names, they said, but effectively providing Kibaki with some insulation from the scandal.

The KACC went on the offensive, apparently believing the former ministers to be fair game. In February, it filed charges against Murungaru – clearly the least protected of the former ministers – for refusing to declare and account for his wealth. Then in September it reported on its investigations of security contracts requested by Kibaki the previous year to release the pressure on his government. The evidence against the former ministers was the same as it had been in the initial investigations. However, this time the KACC recommended that Mwiraria be charged with multiple counts of economic crime, neglect of duty and disobedience of statutory duty, and Murungaru with one count each of neglect of duty, abuse of office and disobedience of statutory duty (KACC Quarterly Report July–September 2006).Footnote 14 The response from the Kibaki government made it clear that the former ministers were not fair game. Attorney General Wako returned all five files to the KACC for further investigation in October, refusing to prosecute anyone on the basis of the evidence presented. Apparently getting the message, the following month the KACC produced its report on the accusations in Githongo's report, concluding that there was no firm evidence to support them and recommending that the case against the former ministers be closed. This recommendation was accepted by Wako (KACC Quarterly Report October–December 2006). Kenyans were left wondering whether Wako was frustrating the work of the KACC or the KACC was not doing its job. The most cynical suspected both.Footnote 15

A series of political rehabilitations followed. Murungi, who was not indicted by the KACC, was immediately reappointed to his ministerial position. Mwiraria returned to the Cabinet in July 2007 as Minister of Environment and Natural Resources. Murungaru, having proven somewhat less reliable, remained outside Cabinet but campaigned on behalf of Kibaki in the 2007 elections. The closing of ranks went even further, with Moi endorsing the re-election bid of his erstwhile political rival Kibaki (BBC News 28.8.2007). Apparently in response to this, a report on the Goldenberg Affair by the UK firm Kroll Associates, commissioned by the incoming Kibaki government in 2002, was leaked on the internet. The report, which the Kibaki government had had under wraps since 2004, implicated Moi and many others (Kroll 2004). The government was thus forced to reject the report publicly as ‘not credible’, while the KACC did nothing (BBC News 31.8.2007).

In the Kenyan case, neither Githongo's principled approach nor Ringera's pragmatic one has produced any real assault on grand corruption. Despite intense struggles among competing networks of politicians in the government and in the parliamentary opposition, as a class the politicians have held anti-corruption agencies at bay in the face of incontrovertible evidence of their involvement in massive corruption. Githongo's expectation that he had a two-year window of opportunity in which to disrupt the networks running through the state proved entirely baseless. The Anglo Leasing schemes began before Kibaki took office and continued seamlessly from the first day of his administration. Kibaki's ministers attempted to steer Githongo away from their activities by simply informing him that the private sector target of his investigation was a ‘strong supporter of the President’ (Githongo Reference Githongo2005: 1). When Githongo failed to respond appropriately, he was forced out, left to push his agenda from a safe distance, and largely through the international press.Footnote 16 Ringera's leadership at the KACC has been more measured and cautious, and equally ineffectual. It is not critically important whether he and the KACC are obstructing justice or simply accommodating to the political realities in which they must work. Either way, the KACC has fallen far short of its mandate. Having produced no results, it is beleaguered and struggling to remain relevant. Indeed, in the first major corruption investigation of the new Odinga administration the KACC was called to account for its own role in the resale of the Grand Regency Hotel at a fraction of its value, immediately after its recovery as part of the Goldenberg investigation (KACC 2008; Nation 18.8.2008, 25.8.2008). As the tenure of most of the KACC Board of Directors, and its Deputy Director for Investigations, expired in August 2008, an unnamed Standard (3.8.2008) source predicted that the entire board would be replaced, ‘due to the perception that the current KACC regime, led by Justice Aaron Ringera, excelled in chasing petty offenders while kowtowing at [sic] kingpins of grand corruption’.

NIGERIA: THE TORTOISE AND THE LEOPARD

Like Kibaki, Nigerian President Olusegun Obasanjo was elected as a reformer with deep links to the pre-transition political/military class in Nigeria. Also like Kibaki, Obasanjo came to power in the context of metastatic corruption that began at the top.Footnote 17 Obasanjo's anti-corruption campaign was, like Kibaki's, a response to internal and external pressures. The intense political struggles of the 1990s took a toll on the Nigerian state and society. A long and carefully managed transition to democracy was aborted by the military government in 1993, as electoral results were coming in. President Ibrahim Babangida then stepped aside to release pressure on the government, and was replaced by General Sani Abacha. Abacha was a throwback to the dictators of the 1970s and 1980s, at a time when the continent was progressing towards electoral governance (even if most often electoral authoritarian governance), exacerbating the fallout from the aborted democratic transition. State institutions and the social fabric were in dire need of repair after Obasanjo's election in 1999. Nigeria's oil wealth gives it significant insulation from donor demands, but this is offset by the country's perennial desire to be seen as a regional leader, which was reinforced by Obasanjo's abiding personal interest in acting as such both in and out of office. Always hovering near the bottom, Nigeria had the dubious distinction of finishing last on the Corruption Perceptions Index in 2000 (TI CPI 2000), the first full year of Obasanjo's administration and the new ‘democratic’ regime.

The first bill Obasanjo presented to the National Assembly for consideration, and thus the first bill of the Fourth Republic, was the Corrupt Practices and Other Related Offences Act, which was signed into law in June 2000. The Act established the Independent Corrupt Practices and Other Related Offences Commission (ICPC), with a membership drawn from civil society, and designed to reflect relevant public and private experience.Footnote 18 The ICPC is charged with receiving and investigating reports of corruption, and prosecuting the offenders when the evidence warrants.Footnote 19 This prosecutorial function gives it much greater legal authority than that bestowed on the KACC, and removes the Attorney General as a potential roadblock between the anti-corruption agency and the politicians. The ICPC is more limited than the KACC in that it may not investigate activities before its inception. A second commission, the Economic and Financial Crimes Commission (EFCC), was established in 2002. Its mandate is to prevent, investigate and prosecute a range of financial crimes in the public and private sectors, including internet fraud, oil bunkering, terrorist financing and government corruption. It is largely an intra-governmental organisation,Footnote 20 but does have authority to investigate wrongdoing that pre-dates it, and thus has sole responsibility for corruption during the previous regime.

The EFCC has been the headline-grabbing agency from the outset, as it set its sights on ubiquitous Nigerian internet fraudsters on the one hand, and public resources looted by Abacha on the other. Its chairman, Nuhu Ribadu, came to the EFCC with less auspicious credentials than those of Githongo, or even Ringera. He was hand-picked by Obasanjo from the Nigerian Police Force, a notoriously corrupt institution, to head a commission comprising a collection of government officials. Expectations were initially low. In 2002, most Nigerians expected that corruption would either remain the same or increase (TI GCB 2003: 28). The EFCC started slowly, targeting many more ‘small fish’ than big ones, and many more Obasanjo adversaries than allies. In October 2005 it scored its first major conviction when former police chief Tafa Balogun was sentenced to six months in prison for corruption (BBC News 23.11.2005). Balogun had been a strong supporter of Obasanjo and was Ribadu's former boss. The credibility of the EFCC got a boost.

However, this coincided with the first cracks in the alliance between President Obasanjo and his vice-president, Atiku Abubakar. They fell out over the bid to amend the constitution to permit Obasanjo to run for a third term. The proposal was first tabled in the Senate in November 2005, but indications of Abubakar's refusal to support the initiative, after he had waited eight years for his turn at the top, were already leaking out in the months before. The constitutional amendment was rejected by the Senate in May 2006, reportedly after much bribery in the effort to have it passed (BBC News 16.5.2006). Obasanjo then moved to block Abubakar's presidential ambitions, which lead to a rift in the ruling People's Democratic Party (PDP) and eventually forced Abubakar out of the party. Abubakar ultimately ran for the presidency as the Action Party candidate in the seriously flawed April 2007 elections, which the PDP candidate, Umaru Yar'Adua, was declared to have won with 70% of the vote.

Where the efficacy of the KACC was tested by the Anglo Leasing scandal in Kenya, the efficacy of the EFCC in Nigeria revolves largely around its campaign against the country's thirty-six powerful state governors. The EFCC investigated them all in 2005 and filed dossiers with the Attorney General. It has repeatedly claimed publicly that almost all of them are corrupt. However, because the governors, along with the president and vice-president, enjoy constitutional immunity from prosecution while in office, they could not be charged while in office. In the year between November 2005, when the third-term amendment was tabled, and November 2006, when Abubakar lost his bid to stand as the PDP presidential candidate and left the party, five governors were impeached, and then immediately charged with corruption by the EFCC.Footnote 21 Four were members of the PDP, and the fifth had recently displaced the sitting PDP governor as the result of a Supreme Court ruling that reversed the 2003 election outcome. That there were so many impeachments in such a short time indicates a centrally coordinated campaign. Was it a move to clean house before Obasanjo's tenure lapsed, or to marginalise Abubakar supporters and boost Obasanjo's hand-picked, politically-obscure successor? To Obasanjo's critics, it appeared clearly to be the latter. Supporters of Ribadu maintained that he went after those he could, while building up dossiers on the others to be used when they were no longer ‘protected’ (BBC News 13.9.2006).

The spate of impeachments and EFCC charges in 2005–6 was foreshadowed by the case of Plateau State Governor Joshua Dariye (PDP) in 2004. Obasanjo suspended Dariye for six months in May 2004 for failure to deal effectively with ongoing religious clashes in his state. While suspended, Dariye was arrested for money laundering in London. He proclaimed his innocence and charged that Obasanjo was behind the arrest. After he skipped bail in the UK and returned to Nigeria, Obasanjo tried unsuccessfully to have him impeached, and the EFCC charged him with corruption in December. The courts threw out the EFCC indictment based on Dariye's gubernatorial immunity. Dariye and his supporters pointed to a political vendetta by Obasanjo, and he returned to his post. Thereafter Obasanjo had to rally his political allies in the state legislatures to engineer impeachment proceedings. The next governor to be targeted by the EFCC, Bayelsa State Governor Diepreye Alamieyeseigha (PDP), was also initially arrested on money laundering charges in London. His arrest came in September 2005, just as tensions between Obasanjo and Abubakar were beginning to boil over into open conflict. The Alamieyeseigha case drew more attention, perhaps because he reportedly made his escape from the UK dressed as a woman.Footnote 22 Seen as a close ally of Abubakar, Alamieyeseigha was impeached in November 2005, the same month a Senate subcommittee tabled the third-term amendment, and charged by the EFCC in December. Another of ‘Atiku's men’, Oyo State Governor Rashid Ladoja (PDP), was impeached and charged by the EFCC in January 2006 (Daily Champion 13.1.2006). He appealed to the Supreme Court on the legality of his impeachment and was reinstated in December. Ekiti State Governor Ayo Fayose (PDP) was impeached and charged by the EFCC in October 2006. His supporters also maintained that he was targeted because of a falling out with Obasanjo. He fled the country (BBC News 16.10.2006). Anambra State Governor Peter Obi (APGA), who had been locked in a power struggle with a close Obasanjo supporter, Andy Uba, was impeached November 2006. He was not charged by the EFCC before his impeachment was overturned three months later and he returned to his post.Footnote 23 To close the circle, Dariye was impeached in November 2006 and immediately declared wanted by the EFCC. He went into hiding to avoid arrest; his impeachment was overturned in March 2007, but he did not return to office before the end of his term the following month.

Obasanjo's blatant use of the EFCC as an instrument against political opponents in general, and Abubakar in particular, left Ribadu and the EFCC battered.Footnote 24 Still, this spurt of charges against the governors, the repeated public charges by the EFCC that almost all the governors were corrupt and would be brought to book when they left office, and the fact that twenty-eight of the thirty-six governors (as well as President Obasanjo) would be term-limited out of office in May 2007, raised hopes that Ribadu would indeed come into his own and go after all of the former governors. Ribadu told the Nigerian Senate in September 2006 that the EFCC was investigating thirty-one of the thirty-six governors, and preparing charges against fifteen of them (BBC News 28.9.2006). This had the potential to significantly affect, though surely not end, corruption among high officials in the country.

Anatomy of a struggle ii

The EFCC began charging former governors immediately after their terms expired in May 2007, with some fleeing before they could be charged, and one, Peter Odili (Rivers), pre-empting the EFCC's charges by acquiring an injunction before leaving office (BBC News 30.5.2007; Business Day 5.3.2008; This Day 30.5.2007). In mid July former governors Joshua Dariye (Plateau), Saminu Turaki (Jigawa), Orji Uzor Kalu (Abia), Chimaroke Nnamani (Enugu) and Jolly Nyame (Taraba) were arrested by the EFCC and arraigned on charges of corruption and money laundering (BBC News 13.7.2007). Later that month, Diepreye Alamaleyeseigha (Bayelsa), who had been arrested and charged in December 2005 after being impeached, became the first former governor to be convicted. He was ordered to hand over illegally acquired property, stocks and cash, given a two-year prison sentence and released on time served (BBC News 28.7.2007). Other former governors were called in for questioning, and the EFCC made it clear that further arrests would be forthcoming. However, in August Attorney General Michael Aondoakaa announced that the independent prosecutorial powers granted to the EFCC and ICPC in their establishment acts were unconstitutional, and that all future prosecutions would need to be vetted by his office. This set off the EFCC's (and ICPC's) own struggle for survival and relevance under the new administration.

Aondoakaa's position was legally sound but politically suspect. Concern had been expressed by non-interested parties over the legal position of the EFCC and the extent to which it operated outside the bounds of the rule of law, even as other observers had begun to point to the prosecutorial powers of the EFCC – and thus its relative autonomy of political interests – as a key factor in its greater success compared with that of the KACC (Business Daily 8.10.2007). It is possible that the new administration genuinely seeks simply to bring the anti-corruption agencies under the supervision of the Attorney General's office, and does not intend the Attorney General to be a block to prosecution of the governors or anyone else. However, Aondoakaa appeared to be creating obstacles to the ongoing EFCC effort to prosecute Dariye and Kalu, as well as blocking prosecutions by the UK Metropolitan Police of Dariye and former Delta State governor James Ibori, which amplified local and international concerns about the efficacy of the EFCC after Obasanjo. Much depended on the ability of the agency to hold its ground at this critical juncture.

Ribadu's EFCC did not back down. In mid December 2007 it arrested former Ekiti State governor Ayo Fayose, and former Delta State governor James Ibori, seen as the most powerful and politically connected of the governors and a major backer of President Yar'Adua (This Day 18.12.2007). Ibori's arrest seemed to resolve the debate over the EFCC, demonstrating its autonomy from political interests, its commitment to its institutional mandate, and its capacity to touch the untouchable. Ribadu himself noted that it sent ‘a clear message to everybody that we are damn serious about fighting corruption’ (Financial Times 12.12.2007). Jibrin Ibrahim, director of the Centre for Democracy and Development in Abuja, concurred: ‘This is a real sign that the government is getting serious about fighting corruption’ (Financial Times 12.12.2007). But then the other shoe dropped. A week after these arrests, the Attorney General announced that the government intended to merge the EFCC, ICPC and the Code of Conduct Bureau (CCB) because of the overlapping functions of the agencies (Daily Trust 22.12.2007). Again the move was procedurally sound – the EFCC and ICPC perform largely the same function – but politically suspect. Those who had been suspicious of the Attorney General's effort to assert his authority over the agencies saw this as a move to get rid of Ribadu, leaving the much less effective and well-known head of the ICPC or CCB in charge of a post-merger anti-corruption organisation. These suspicions were confirmed the following week, when a quicker solution appeared to have been found: Nigeria's Police Chief Mike Okiro announced that Ribadu had been ordered to attend a one-year policy and strategic studies course in central Nigeria (BBC News 28.12.2007).Footnote 25 This, many concluded, was the end of the EFCC. Instrumentalised by Obasanjo, it would now be marginalised by Yar'Adua. An EFCC official told Human Rights Watch (2008) that the move was intended to ‘dilute the independence of the EFCC’ and ‘halt the investigation and prosecution of former governors’. Public outcries were heard across Nigeria and around the world. When the dust settled, Nigerian commentators concluded that these events demonstrated once again that their country could not progress on any front as long as it was led by strong individuals rather than strong institutions. Neopatrimonialism appeared to have won yet again. While understandable, the conclusion is premature. In the tale of the tortoise and the leopard, the leopard catches the tortoise and tells him to prepare himself to die. The tortoise thrashes around, scratching with his hands and feet, throwing sand in all directions and then waits quietly for death. Puzzled, the leopard asks why he did it. The tortoise replies: ‘Even after I am dead I would want anyone passing by this spot to say, yes, a fellow and his match struggled here’ (Achebe Reference Achebe1988: 128). Ribadu did not fundamentally change Nigeria. But the scratches he made in the sand may still mark the beginning of incremental reforms that eventually will lead to more significant and lasting change.

INDIVIDUALS AND INSTITUTIONS

Ribadu enjoyed a level of political protection from his president that Ringera and Githongo did not, and he understood the limits of his purview. He stated publicly that for him the issue was always whether targets of investigation are guilty or not guilty of corruption. He did not prosecute innocents. However, since virtually all of the governors were guilty, prosecuting those stripped of their immunity by the political machinations of Obasanjo and his allies politicised his principled approach, even if indirectly. Nevertheless, Ribadu was driven by an interest in promoting himself and his personal crusade, and in building a viable institution, within the limits imposed upon him by the political environment. Accomplishing that required something of the pragmatic approach adopted by Ringera in Kenya, if only to buy time to build an institution capable of successfully implementing a principled assault on the ‘big fish’. Indeed, Ribadu admits to being ‘very strategic’ about the selection of targets and the timing of investigations (World Bank 2007). He may have expected more genuine cooperation from Obasanjo, who promised but never delivered legal reforms that would have lifted blanket immunity and cleared the way for EFCC prosecutions of governors (and potentially presidents). Instead, his Attorney General sat on the files prepared by the EFCC on the governors, likely using them to keep the governors in line, much as Kibaki's government must have used the Kroll report to discipline Moi loyalists. So Ribadu bided his time and built his institution.

Marginalising the EFCC without undermining the legitimacy of the Yar'Adua government has been made more difficult by Ribadu's personal and institutional accomplishments. He built the EFCC to an organisation of 1,200 staff, reported to include the best and the brightest,Footnote 26 and with some evidence of an emergent corruption-busting bureaucratic/legal ethos (Christian Science Monitor 8.2.2007). The most widely noted anecdotal evidence on this is the $15 million bribe allegedly offered by Ibori to an EFCC official: the official declined the bribe and added a new charge to Ibori's indictment (supported by the recording he made of the interview, unbeknownst to Ibori) (Economist 3.1.2008). In addition, Ribadu successfully lobbied for new laws to facilitate the EFCC's mandate, including transparent competitive bidding on government contracts, public audits of oil revenues transferred to state governments, and most importantly a provision that permits the high courts to designate special judges to handle EFCC cases (Christian Science Monitor 8.2.2007; World Bank 2007).

He also established financial ties with international partners, which helped to increase the EFCC's institutional capacity while keeping it in the international public eye and increasing its political insulation. The EFCC received over $37 million in donations through the end of 2007, most of which came from the European Union, with smaller amounts from individual European governments, the World Bank and the United Nations Development Program (EFCC 2007). Most of these funds went to physical infrastructure, including the construction of an EFCC Training and Research Institute and a Data Centre at EFCC headquarters, which opened in 2005 and 2008, respectively, or staff training. The US provided in kind support and training of 800 prosecutors, valued at an additional $1 million (United States 2006). All of this capacity survives Ribadu the man.Footnote 27

Ribadu also marshalled significant cooperation and moral support at the international level. He told senior management at the World Bank in 2007 (World Bank 2007):

What we need is training, equipment, and exposure for our staff. We also need your support at the international level. So much of grand corruption is out of our control, as the money goes out of our jurisdiction. If the World Bank can help us retrieve stolen money and ensure there is no safe haven outside, it will help us immensely in our fight internally. There should be no hiding place for the corrupt; treat them like terrorists.

He established ties with the EFCC's counterparts elsewhere – including INTERPOL, the UK Metropolitan Police, the US FBI, the Canadian Mounted Police and the South African ‘Scorpions’ – creating force multipliers and extending the EFCC's reach into the developed world, where most of the resources appropriated through corruption are stashed (Ribadu Reference Ribadu2006: 30). He asked international actors to ‘continue to support our work. That then sends a strong message to our elite that the world is watching what is happening in Nigeria, and that protects us’ (World Bank 2007). He also noted that a $5 million grant from the World Bank in 2005 ‘allowed the EFCC to target political corruption among high-stakes elites, including members of the executive branch of government and members of parliament … at a time when these very same officials halted the appropriation [sic] of the EFCC to stop us from pursuing leads’ (allafrica.com 18.4.2007).

However, the key to the EFCC's success was that it was home-grown and popularly supported, and had proved that it could tackle corruption on its own before seeking international support ‘to guarantee that these efforts do not falter’ (ibid. 18.4.2007). Although opportunities for collaboration are more limited domestically, the EFCC has nevertheless reached out, sharing resources and expertise with civic organisations committed to good governance. In September 2007, a coalition of civic groups announced that it would mobilise 500 lawyers, including twenty-five from the Senior Advocates of Nigeria, to support EFCC prosecutions of corrupt public office holders (Daily Trust 3.9.2007). The EFCC also committed itself to collaboration with the Association of National Accountants of Nigeria on training of forensic accountants (Daily Trust 25.2.2008).

The short-term results of this salesmanship and capacity building were striking. By April 2008 the EFCC had secured 250 convictions, including a few ‘big fish’ – a chief of police, a governor, a minister – and recovered $5 billion in stolen public funds (EFCC 2008). Ribadu was named ‘Man of the Year’ for 2006 by the Nigerian newspaper Vanguard. In February 2007, the Christian Science Monitor (8.2.2007) published a front-page story on Ribadu with the lead: ‘When Nigerian parents want their children to behave, they don't threaten them with a spanking. Nowadays, they say: “If you keep that up, I'll tell Ribadu”’. While the reporter surely waxed hyperbolic, it is nevertheless true that ‘no individual has come to represent integrity and rule of law more than’ Ribadu (ibid.). A 2007 poll found the EFCC to be the second most trusted institution in Nigeria (Economist 3.1.2008). This may reflect confidence in Ribadu personally more than in the EFCC institutionally, but Asishana Okauru, who worked under Ribadu at the EFCC, maintained early in 2007 that Ribadu would leave ‘an effective institution, new legal frameworks, and a lot of international support’ in his wake (Christian Science Monitor 8.2.2007).

The fallout from his removal was relatively intense, but moderated to some extent by the fact that the EFCC carried on. The arrest of former Edo State governor Lucky Igbinedion (like Ibori a major backer of Yar'Adu) in January, with Ribadu still at the helm, sent a message of perseverance in adversity (BBC News 21.1.2008). In the months following Ribadu's removal, no more governors were charged, but the EFCC did continued to press ahead on open cases, and continued to investigate and question other governors, including former Sokoto State governor Alhaji Attahiru Bafarwa and former Cross Rivers State governor (now Senator) Liyel Imoke (Leadership 30.07.2008; This Day 8.5.2008). It was in court in March 2008 fighting the injunction obtained by Odili (Vanguard 6.3.2008). In April it charged Senator Iyabo Obasanjo-Bello, former president Obasanjo's daughter, signalling that it would now target those previously under his protection (BBC News 29.4.2008). In June it was in court fighting motions by Fayose, challenging jurisdiction, and by Kalu and Ibori, seeking leave to travel abroad while awaiting trial. It prevailed on the Fayose motion, while the courts permitted Ibori and Kalu to travel (and Fayose as well the following month, postponing his trial until November, Daily Trust 25.07.2008; Leadership 13.6.2008; Punch 11.6.2008; Daily Sun 5.6.2008). Still, it seemed to have lost some momentum.

Ribadu's successor, Farida Warizi, was sworn in on 6 June 2008. She came with the proper qualifications and an air of legitimacy, having served as Assistant Inspector General of Police, and Commissioner of the Special Fraud Unit.Footnote 28 Indeed, she is reported to have trained Ribadu (BBC News 16.5.2008). But observers naturally remain cautious. She will have to prove her integrity, as Ribadu did (to many, though not all).Footnote 29 The popular support and institutional capacity developed under Ribadu's stewardship will surely be assets, and will affect the incentive structures within which she operates. She will be celebrated or vilified based on the performance of the EFCC in the coming years. One should not overestimate the influence of individuals, but individuals do matter precisely because institutional consolidation requires more than five years' time. In her first three months in office, the EFCC arrested another three former governors: Michael Botmang (Plateau), Boni Haruna (Adamawa) and Senator Rashidi Ladoja (Oyo) (Daily Trust 4.8.2008; This Day 19.7.2008, 29.8.2008). In August 2008, ICPC Chairman Emmanuel Ayoola released a list of twenty-three former governors to be investigated by his agency, suggesting that he may also try to fill the leadership role previously occupied by Ribadu (Daily Champion 15.8.2008).

Meanwhile, across the continent in Kenya, the KACC continues to be hamstrung under the new ‘national unity’ government. Where the EFCC had a clear strategy of building dossiers and in the process creating public interest and support, the KACC continues to respond only to reports received, to move at a snail's pace, and seems to have entered a vicious circle while the EFCC established something of a virtuous one. The lack of progress and failure to even talk tough on grand corruption undermines the KACC's ability to build institutional capacity and to draw support externally or internally, while its continued marginalisation by political interests undermines its ability to win legal reforms that might give it more autonomy. Each of these failures feeds back on the others.

The KACC reached its full operating capacity of 270 staff only in 2007, four years after its establishment (KACC Annual Report 2006–7). The staff size is small, but not disproportionately so compared with Nigeria, which has a population four times that of Kenya and a much larger political class as a result of its federal structure. However, there is no indication that the KACC staff has received significant training or developed a sense of mission. In June 2008, it fired three of its own staff for corruption (Business Daily 12.6.2008). Local media response to Ringera and the KACC contrasts sharply with that to Ribadu and the EFCC. While most coverage in Nigeria celebrated Ribadu and the EFCC, there was a significant minority that rejected what it saw as his willing instrumentalisation by Obasanjo. But all agreed that his EFCC was doing something. In Kenya, the majority decries the lack of success of Ringera and the KACC, some questioning his integrity, others seeing him as a victim of the political elite, but all agreeing that the KACC is not really doing anything.Footnote 30

Where Ribadu was successful in winning legal reforms, including the designation of special judges to handle EFCC cases that reinforced his prosecutorial powers, Ringera has had no such success, failing in his bid to win prosecutorial powers for the KACC and barely surviving a parliamentary move to limit its mandate to crimes committed since its creation, which would have excluded the Goldenberg and Anglo Leasing cases (East African 9.10.2007). Similarly, the KACC was unable to build a network of international financial, investigative and/or moral support. Total receipts from foreign donors remain under $500,000, with $9 million that had been allocated by the US and Germany pulled in early 2005 in response to its failure to establish itself as a credible institution capable of standing up to the political elite (KACC Annual Report 2005–6). Investigative cooperation, along the lines pioneered by the EFCC, has been blocked by the Kenyan courts, reflecting both KACC's political marginalisation and the absence of autonomy that flows from its lack of independent prosecutorial powers. Ringera has decried the fact that ‘foreign governments and agencies are ready and willing to assist [KACC investigations] but our courts have put a lid on such investigations’, even after ‘foreign agencies swung into action in Switzerland, the United Kingdom and Spain at the request of KACC’ (Business Daily 12.6.2008). But he has taken no concrete action to increase his room for manoeuvre. Perhaps for this reason above all others, potential local partners have distanced themselves from what they see as an ineffectual anti-corruption institution at best, and a facilitator of corruption at worst. The Kenyan Human Rights Commission has gone so far as actually to target the KACC as part of its public accountability campaign.

All of this made it quite easy for government officials in Kenya to close ranks and marginalise the KACC. Even those who criticise recent moves to undermine it conclude that the KACC has proved ineffective and susceptible to politicisation, and should be scrapped in favour of some other institutional approach to the problem of corruption (Business Daily 17.9.2007). At the end of May 2008, the KACC had hundreds of cases pending, but only thirty-seven convictions, with no ‘big fish’, and had recovered less than $5 million in illicitly acquired property and cash (KACC Annual Reports).Footnote 31

Perceptions of the effectiveness and efficacy of the two institutions are reflected in Transparency International's Global Corruption Barometer survey results, although the reliability of these must not be overstated. In 2003, when the EFCC was in the process of being established, 38.6% of Nigerians surveyed believed that corruption was likely to decrease over the next three years, while 52.7% believed it would increase. The numbers were worse in 2004, 27% and 61%, respectively. However, the proportions essentially reversed in 2005 and 2007 (the question was not included in the TI survey in 2006). In 2005, 36% expected corruption to increase in the next three years, while 51% expected it to decline. In 2007, the numbers were even better, with 29% expecting an increase in corruption and 62% expecting a decline. Kenya has been included in the TI surveys less consistently, so we have survey data only for 2004 and 2005, at which time Kenyan respondents also indicated a dramatic re-evaluation of the prospects for future corruption. In 2004, 40% expected it to increase, and 11% expected it to decrease, while in 2005 25% expected an increase and 50% a decline in the next three years. A more direct comparison is available for 2006, when TI included a specific question about the effectiveness of government's fight against corruption in its survey. A slim majority of Nigerians (52%) believed that the government's fight against corruption was effective, while 45% saw it as ineffective (or disingenuous). The proportions were reversed in Kenya, where 43% saw government's anti-corruption campaign as effective and 56% believed it to be ineffective (or disingenuous). These are not large differences, which seems consistent with the reality of ongoing rampant corruption in both countries. In the 2007 survey, in which Kenya was not included, positive evaluations of anti-corruption efforts increased significantly in Nigeria, from 52% to 64%.Footnote 32

Similarly, there is impressionistic indirect evidence indicating modest improvement in corruption in Nigeria and no change in Kenya (TI CPI 2000–8).Footnote 33 In 2003, Kibaki's first year in office and the year that both anti-corruption agencies were finding their feet, Nigeria ranked 132nd out of 133 countries on the index, while Kenya ranked 122nd. Consistent with the Global Corruption Barometer findings above, there was little change in either country through 2005. But in 2006, Nigeria and Kenya tied for 142nd out of 158 countries, and Nigeria then pulled ahead in 2007 being ranked 143rd of 180, with Kenya slightly behind at 150th. The gap widened in 2008, with Nigeria ranked 121st out of 180, and Kenya 147th. Nigeria's rise from dead last in 2000 to the thirty-third percentile in 2008, and from an index of 1.2 to 2.7 (out of a possible 10), is notable if hardly revolutionary. Kenya's index score was 2.1 in 2000 and 2008.

IMPLICATIONS FOR FUTURE RESEARCH

Recent research into decisions about whether to prosecute former presidents for corruption, and whether to undertake serious public sector reforms, have started us down a promising new path of analysis (Kjaer Reference Kjaer2004; Taylor Reference Taylor2006). They neither ignore politics, as World Bank and like- minded analyses tend to do, nor take politics as an insurmountable obstacle, as the literature on neopatrimonialism sometimes does. However, these studies have two weaknesses that I have tried to address here. First, they focus too much on the preferences of presidents. Presidents clearly are important players in Africa's neopatrimonial states, but they are far from all-powerful, and indeed can be very insecure. In addition, they are engaged in games, often multi-level, in which the strategies and incentives of the other players are also important. I have tried to sketch the game between the politicians and the anti-corruption agencies in the cases of Kenya and Nigeria. Future research will need to explore this game in greater detail and across other cases, perhaps factoring international actors into analyses of anti-corruption reform as a two-level game, which presidents play with international actors and anti-corruption agencies simultaneously, and in which significant coordination between international actors and anti-corruption agencies may be important in affecting outcomes. Presidents establish anti-corruption agencies in response to internal and external demands, believing they can maintain control over them. But they may miscalculate or, as in the Nigerian case, bestow upon their successors institutions that served them well but have at the same time developed some capacity to function more autonomously than intended.

Secondly, previous studies conclude that variations in reform across cases tend to disconfirm the neopatrimonial ‘paradigm’. This is clearly not so. As I have tried to show, the realities of neopatrimonial states, and perhaps especially neopatrimonial democratic states in which votes have to be purchased every few years, structure the reform game in specific ways. This makes real progress on controlling grand corruption unlikely, largely unintended, but not impossible. This is so because anti-corruption agencies must have some appearance of legitimacy if they are to serve their purpose of bolstering the president's internal and external support. This creates the space in which reforms may succeed beyond the intentions of their creators, by their managers' efforts to build capacity and thus slowly redefine what is feasible within the bounds of neopatrimonial politics.

Footnotes

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The author would like to thank three anonymous reviewers for helpful comments.

1. For a non-African case see Michael Reference Michael2006. Both Harrison and Tangri & Mwenda suggest that donors' commitment to anti-corruption reform is also tepid as a result of their institutional interests in portraying Mozambique and Uganda, respectively, as show cases of successful structural adjustment.

2. Taylor (Reference Taylor2006), while explicitly critical of this approach, provides substantial evidence in support of it. Reno (Reference Reno1998) makes a similar argument with respect to the instrumentalisation of structural adjustment reforms.

3. This perspective is affirmed by anti-corruption crusaders themselves. Gladwell Otieno (Reference Otieno2005: 75), former head of Transparency International – Kenya, for instance, maintains that ‘Kenyan voters are accustomed to viewing elections as a time when they can “eat” at the expense of politicians in return for their vote. In effect, rather than trusting to the uncertain future returns of development policies promoted by their representatives, voters prefer to receive tangible benefits directly and immediately. The politics of patronage drives the demand for ever more resources with which to conquer and maintain political power.’ Similarly, the Chairman of the Nigerian Independent Corrupt Practices and Other Related Offences Commission (ICPC), Justice Emmanuel Ayoola, asserts that the ‘local citizenry should also be aware that the tremendous pressure their financial requests exert on office-holders makes them vulnerable to looting the public till’ (Daily Independent 13.9.2007).

4. Geddes (Reference Geddes1991, Reference Geddes1994) develops a more detailed game-theoretic framework in her study of public sector reform in Latin American democracies, but the contextual factors she focuses on are not relevant to Africa.

5. Their typology also includes post-coup, incumbent, post-succession, and post-revolutionary clean-ups.

6. Specifically, she argues that President Museveni was able to achieve significant public sector reform in his early years in power because patron–client networks had been largely disrupted by the collapse of the Ugandan state in the early to mid 1980s, and that his reform initiatives floundered later as neopatrimonialism reasserted itself. She attributes the reform success of Tanzanian President Benjamin Mkapa to the institutionalisation of succession in his country (i.e., to the de facto one-party state and stability of its patron–client networks), and the failure of reform under Kenyan President Mwai Kibaki to the need to manage intense competition among ethnically defined patron–client networks within the state.

7. He suggests that several factors increase the likelihood of former presidents being charged with corruption: highly competitive elections, post-election rather than pre-election governing coalitions, rapid initiation, less overt/intense donor pressure, and narrower distribution of patronage. While the last of these goes directly to the patrimonial character of the state (and society), the logic behind the others is also tied up to varying degrees with patrimonial incentive structures. More competitive elections mean a less secure president, more in need of marginalising his predecessor's remaining support networks within the state. A post-electoral coalition ‘affords greater flexibility to marginalize powerful “recycled elites” who oppose prosecution out of fealty to the previous president or because of its implications for their own prosecution’. More rapid initiation increases the likelihood of prosecution because the new president will lose credibility over time as his own government engages in corruption and becomes vulnerable to charges of scapegoating. Too much donor pressure is likely to lead the population to rally round the former president against outside intervention (Taylor Reference Taylor2006: 297–8).

8. Additional within-case analysis is needed, especially for Nigeria, where the Independent Corrupt Practices and Other Related Offenses Commission (ICPC) is more directly charged with pursuing corruption cases, but has been much less effective than the EFCC, despite an identical array of elite interests and contextual factors.

9. This unified opposition front rested upon a pre-election power sharing agreement. Kibaki agreed that once elected he would create the position of Prime Minister and appoint Raila Odinga, the second most powerful opposition figure, to the position. Kibaki reneged on the deal after being elected, and the coalition collapsed.

10. The World Bank and International Monetary Fund suspended aid to Kenya in 1997 over corruption concerns. They agreed to reinitiate aid in 2000, citing progress on corruption, but then suspended it again the next year after the parliament rejected a bill, allegedly drafted by the Bretton Woods Institutions, intended to reinvigorate the Kenya Anti-Corruption Authority (KACA) (BBC News 17.8.2001). President Kibaki held meetings with IMF officials within weeks of assuming office, and announced that the IMF would seek an early engagement with Kenya (BBC News 16.1.2003). In July 2003, World Bank President James Wolfensohn praised anti-corruption efforts under Kibaki and announced that the Bank was ‘ready to resume [lending] and anxious to do so’ (BBC News 23.7.2003). In November, the IMF unfroze aid to Kenya and approved a $250 million loan (BBC News 22.11.2003). The next month, the government of Kenya granted former president Moi immunity from prosecution on corruption charges, despite allegations that he absconded with billions of dollars during his tenure. In July 2004, Sir Edward Clay, British High Commissioner to Kenya, claimed that officials of the Kibaki government were behaving ‘like gluttons’ and ‘vomiting on the shoes’ of donors (BBC News 15.7.2004). In the aftermath, Clay said that he regretted three things: ‘Not speaking out much earlier than July; underestimating the scale of the looting afoot; and the moderation of the language I used then: that was clearly inexcusably polite in relation to what we see going on’ (BBC News 3.2.2005). Much of the renewed aid promised in 2003 remained undelivered, as corruption soared before it could be delivered. Estimates are that 20% of official spending in 2004–5 was lost to graft (BBC News 13.4.2005).

11. As Bienen & Herbst (Reference Bienen and Herbst1996: 33) note in their analysis of economic reform, it is ‘no coincidence that the two most significant economic reformers in Africa, Rawlings in Ghana and Museveni in Uganda, came to power through relatively unorthodox means with the express intent of destroying the existing power structures’. Indeed, the three populist ‘revolutionaries’ of the 1980s – Jerry Rawlings, Yoweri Museveni, and Thomas Sankara of Burkina Faso – are the exceptions that prove the rule. As Kjaer (Reference Kjaer2004: 399) notes, Museveni inherited a state in such an advanced stage of collapse that the patronage networks were already largely destroyed. Even more than Museveni, Flight Lieutenant Rawlings and Captain Sankara seized power by force with the express intention of destroying existing power structures on behalf of the people. In these cases there was a period of serious reform, as the ‘window of opportunity’ argument suggests, ‘before the weight of the past reasserted itself’ (van de Walle Reference van de Walle1999: 38). Sankara was the first victim of the reassertion in Burkina Faso; Rawlings survived by adapting. In other cases, new leaders have generally played by the existing rules of the game.

12. This was not the first anti-corruption agency in Kenya. The Kenya Anti-Corruption Authority (KACA) was established in 1987 by an amendment to the Prevention of Corruption Act (Cap. 65) of 1956. Its first director, John Harun Mwau, was appointed ten years later on the eve of the December 1997 elections. He was removed before the end of the year by a judicial tribunal appointed by Moi. His successor, Justice Aaron Ringera, now director of the KACC, served as KACA director between 1997 and 2000, when the Kenya High Court declared that the existence of KACA undermined the powers conferred upon the Attorney General and Commissioner of Police by the constitution, and was therefore unconstitutional. See the Kenya Anti-Corruption Commission website, <www.kacc.go.ke>.

13. An undated and unsigned copy of Murungaru's Memorandum to the KACC is posted at <www.marsgroupkenya.org/Reports/Government/Murungaru_Undated_Memorandum.pdf>.

14. In total it recommended prosecution of four former ministers and eight top civil servants.

15. See the man on the street interviews in Transparency International Kenya, Adili 84, November 2006, as well as the many blog postings by Kenyans on the subject.

16. On a brief visit to Kenya in August 2008 he called for amnesty for those willing to admit guilt in corruption cases, arguing that ‘subjecting economic crimes to prolonged process and the deliberation of committees not only delays justice but makes ultimate accountability less likely’ (BBC News 20.8.2008).

17. Michael Collier (Reference Collier2002: 12) defines corruption that is persistent throughout society as metastatic, a cancer that attacks the entire system rather than being localised.

18. It includes a retired police officer, a legal practitioner, a retired judge, a retired public servant, a woman, a youth between the ages of twenty-one and thirty, and an accountant.

19. In addition, it is charged with examining, reviewing, and enforcing correction of corruption-prone systems and procedures of public bodies, and educating the public about corruption and the fight against it. The establishment Act also provides that ‘the Commission shall in the discharge of its functions under this Act, not be subject of the direction or control of any other person or authority’ (<www.icpc.gov.ng/history.php>). The constitutionality of this provision has been challenged by the current Yar'Adua government, through the Attorney General.

20. Its membership includes a full-time chairman and a secretary, and part-time members representing the Central Bank, Foreign Affairs, Finance, and Justice, the Drug Law Enforcement Agency, National Intelligence, State Security, Security and Exchange Commission, Deposit Insurance Corporation, Insurance, Postal Services, Customs, Immigration, and Police, as well as four ‘eminent Nigerians’ with experience in finance, banking or accounting: Economic and Financial Crimes Establishment Act 2004, available at <www.efccnigeria.org>.

21. All of the impeachments appear to have been unconstitutional. Three of the five appealed to the Supreme Court, which overturned the impeachments and returned them to office.

22. In announcing that the governor had been served with an impeachment notice, Peremobowei Ebebi, Speaker of the Bayelsa State Parliament, said: ‘A governor who disguised himself as a woman to run away from justice in London should not be our governor. It is a slap on our collective dignity as a people and our sensibilities as a people’ (BBC News 23.11.2005). Alamieyeseigha asserted his innocence on the money laundering charges, and insisted that he did not flee in a dress (BBC News 25.11.2005).

23. Obi's situation is unique. The Independent Electoral Commission declared him the loser of the 2003 elections, but after three years of litigation he prevailed and assumed office in March 2006. After the 2007 elections, he returned to court arguing that his five-year mandate began running only in 2006 when he assumed office. The Supreme Court ruled in his favour in May 2007, nullifying the election of his successor and returning him to office.

24. The EFCC also targeted Abubakar directly, and tried unsuccessfully to have those against whom it had evidence of corruption disqualified from the 2007 parliamentary and president elections.

25. Adding insult to injury, Ribadu was demoted two ranks from Assistant Inspector General of Police to Deputy Commissioner of Police in August 2008, on the grounds that his (and others') rapid promotion under Obasanajo was illegal and adversely affected morale in the Police Force. A total of 140 people were demoted (Daily Trust 6.8.2008).

26. However, the EFCC announced in August 2008 that in the previous year it had dismissed eleven of its officials for fraud, ten for padding their own credentials. The eleventh was dismissed for fraud in the context of performing his functions, and Waziri called for him to be prosecuted (see press release at <www.efccnigeria.org>).

27. Some concern has been expressed about those who received international training being ‘redeployed’ from the EFCC after Ribadu's departure, but Waziri insists that only ten persons have been redeployed, and no firm evidence has been offered in support of media reports to the contrary.

28. To the extent that her gender matters at all, it could cut either way. Women are often seen to be pawns of more powerful men, but they are also seen to be less integrated into neopatrimonial networks of power and thus more willing to work against them.

29. Those who remained distrusting of Ribadu as a result of Obasanjo's instrumental use of the EFCC expressed hope that Waziri will demonstrate significantly more integrity than Ribadu did (Daily Independent 28.5.2008).

30. A typical recent press report begins: ‘The beleaguered Kenya Anti-Corruption Commission’, devotes half the story to the news – KACC intervention in a port development deal – and the other half to the myriad shortcomings of the organisation (East African 9.10.2007).

31. This figure excludes the ‘recovery’ of the Grand Regency Hotel in April 2008, which was negotiated out of court and had been in the works for nearly 10 years. It was actually ‘recovered’ to cover Ksh 2.4 bn. the owner acknowledged owing to the Central Bank of Kenya, rather than as illicitly acquired property.

32. This result may have been skewed, however, by the fact that two governors were arrested by the EFCC the week before the survey was administered, and another while it was ongoing.

33. KACC's (2007) own survey, which captures a broader array of the population, suggests that corruption has dropped in Kenya, and that it has become less of a concern for a significant number of people. In the 2006–7 KACC Annual Report, Ringera also insists that grand corruption has fallen significantly.

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