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Wissenschaftlicher Aufsatz, 2009
1.1 Research Question and Hypotheses
2 Theoretical framework
2.1 Civil society
2.1.1 Global civil society
2.2 Understanding Corruption
2.2.1 Corruption and the justice system
2.2.2 Corruption and the party-system
2.2.3 Corruption in the education, health Sector and other public sectors
2.2.4 Corruption and globalization
2.3.1 General definition
2.3.2 Governance in developing countries
2.3.3 Good Governance
2.3.4 Global Governance
2.3.5 National responses
2.3.6 Providers of global governance
3 Casestudy: Kenya
3.1 Colonial times
3.2 Ethnic divisions
3.3 Civil society and community based organizations
3.4 The era of Kenyatta
3.4.1 Colonial heritage
3.4.2 Party politics
3.4.3 CBOS and civil society
3.4.4 The economy
3.5 The era of Moi
3.5.1 The shaping of power
3.5.2 Party politics
3.5.3 The economy
3.5.4 CBOs and civil society in the 80s
3.5.5 The late 80s: civil society on the rise
3.5.6 Before the elections of 1992
3.5.7 The elections of 1992
3.5.8 CBOs and civil society between 1992 and 1997
3.5.9 The growing consciousness on corruption
3.5.10 Before the elections of 1997
3.5.11 The elections of 1997
3.5.12 The post-1997 period
3.6 The era of Kibaki
3.6.1 Ethnic divisions
3.6.2 The fight against corruption
There is growing consensus that the underlying cause for Africa's underdevelopment is a crisis of governance (Wanyama, 2002: 2), rather than the colonial heritage. Also for Kenya a lack of good governance is seen as one of the major causes of the slow pace of human development or even its decline, as in the 1980s and 1990s (UNDP, 2003: XIII). The Kenyan Human Development Index (HDI) - a composite of the indices of education attainment, life expectancy and standard of living – rose steady between 1975 and 1990 but then started to decline. The late 70s and early 80s saw not only a reasonable provision of basic services but also a quite good economic performance. The downward trend in the 90s was due to the non-growing economy, less access to basic services, corruption and an increased vulnerability of the population (UNDP, 2003: 9).
Corruption is named as the most prominent factor of the problem as it endangers the success of any economic reforms already from the roots. Also authoritarian government is a decisive co-variable increasing the risks for development, as the political context already is a major obstacle for any project (Ake, 1996). This is valid not only for economical projects but also for those aiming at improving the human rights situation and strengthening democracy. This effect became also visible in Kenya in various electoral situations. Instead of strengthening the democratic climate the ruling factions relied on stirring up tribal rivalries, bringing about more division, hostility and intolerance to their nations instead of political progress (Nyong'o, 2002).
The corrupt and authoritarian rule also results in unfair distribution of the resources available inside the country as well as of those obtained from the international community. The ruling elites are mainly interested only to secure their position by bringing their followers into the state-service and also foster their private wealth. So the bureaucracy is extending tremendously and also the funds are channeled outside the countries to private accounts. Additionally many development projects are just designed to satisfy certain groups like tribes or regions, but are not really useful in the overall context of the country. This problem is more serious as the African economies in general are not growing and are also deeply in debt (Nyong'o, 2002: 82-83).
Also by the mid-80s the majority of the African countries was whether ruled through military dictatorship or by one-party-systems that would not tolerate opposition groups at all or only to a very limited extent. This resulted in a very restricted field of possibilities for the powers of the civil society in Africa in general (Wanyama, 2002: 4). Still there was a recent awakening of civil society in Africa as a response to the declining economic situation as well as the political decay on the continent, expressing itself in the decline of competitive party politics and the creation of patrimonial regimes. The central objectives of this emerging civil society was economic and social issues as well as the struggle for civil liberties (Matanga, 2000: 5).
While many are holding that civil society groups and grass-roots organization could be the proper cure for the African governance crisis it is doubtful to others if these groups are really able to live up to these expectations (Wanyama, 2002: 3).
In countering the threat posed to them by the civil society there are three basic strategies being used by the current African governments. These are (Matanga, 2000: 24):
- administrative co-optation, to make sure they fit into the concepts of the government;
- legislation, if their status is abused by NGOs or if they are viewed a security risk; and
- political appropriation, trying to limit their autonomy.
All of these methods also have been applied in Kenya, as the case study will show.
Reinicke (1989) pointed to the fact, that governance can also be provided beyond the sphere of formal governments. Still the states are the primary form of political organization of today and they have a major influence on the way tensions between globalization and public policies are resolved (Reinicke, 1998: 53).
From the complex set of actors that make up for civil society the case study will pick one International Non-Governmental Organization (INGO), named Transparency International (TI) and analyze its efforts on the question of corruption in Kenya. TI has earned a reputation of being the most prominent fighter against corruption worldwide (Sousa, 2005: 1). These INGOS or also called Transnational NGOs (TNGOs), having undergone an inflationary boom since the 1980s (Nuscheler, 2003: 7) and having gained importance heavily during the last two and a half decades, can be viewed as the response of the civil society to the growing globalization and providing a power to develop global governance (Zürn, 2006: 31). The NGOs have recently shown an explosion by numbers, activities and also by their visibility on the international stage. This process happened at least partially due to the growing globalization of economy as well as social life (Brown et al, 2000: 272). The new information technology as well as the greater awareness of global interdependence and also the spread of democracy to more and more countries can be named as reasons for the rise of the NGOs (Gemmill-Bamidele-Izu, 2002: 81). The NGOs are also encouraged by the organizational policy of the United nations (UN), that tries to integrate them in a global governance structure (Folke-Schuppert, 2006: 211). In 1994 already over half of the projects financed by the World Bank, "the only truly global club, that has the financial structure of a credit union" (Birdsall, 2007: 50), included some form of NGO involvement (World Bank, 1998: 3).
But still governments will be the main provider of governance in the foreseeable future, even if they are increasingly cooperating with nonstate actors also providing governance services (Reinicke, 1998: 219).
The aim of this study is to clarify the structure of corruption inherent in the Kenyan society and the role of international powers of the civil society possibly influencing it.
There are normative as well as descriptive approaches to define ‘civil society’. Already Aristotle envisioned the polis which was more or less similar to modern concept of ‘civil society’ and was characterized by the public use of reason as well as by an ethical life (Kaldor, 2003: 23). This concept was taken up by the modern thinkers, but they added the idea of human equality to it, declaring fundamental human rights of every individual. In exchange for rights guaranteed by a civil law, the individuals would give up their freedom, thus engaging in a social contract with the society. While Hobbes only named security as the fundamental right Locke also included liberty and the right to own property into it (Kaldor, 2003: 23). For Hobbes as well as Locke the civil society was not put in contrast to the sphere of the state or the political order, but only in contrast to the condition of nature (Matanga, 2000: 3).
So, historically the term 'civil society' emerged with the meaning of being a lawful society in contrast to the violent natural struggle to survive. The political authority would enforce the law as well as being subject to the law itself (Kaldor, 2003: 17). Another concept, put forward by the thinkers of the Scottish Enlighentment understood civil society as a social realm being bound together by moral as well as natural affection and sympathy, an approach heavily disputed by others (Florini, 2003: 120).
Civil society and the secular constitutional state were not clearly distinguished from each other, the basic principle was 'civility; being understood as respect for the autonomy of the individual relying on security and trust for the people in an overall and in every way polite society, that has never existed as such anywhere in the world (Kaldor, 2003: 17). An essential point of this concept was the overcoming of violence, like Norbert Elias (1982) understood civilization as the removal of violence from everyday life. The distinction of 'civil society' and the state became common with the rise of the modern national state in the late eighteenth and the nineteenth century (Matanga, 2000: 3), at a time when the state would take over many more functions and also develop a bureaucratic apparatus (Kaldor, 2003: 18). The purpose of this organization, at least in some countries, might primarily be the extraction of rents (Charap / Harm, 2002: 155).
Hegel understood the state as an intermediator between the movements of the people expressing their interests in the free realm of contradiction termed 'civil society'. The intention of the state would be to act on behalf of the public good and try to reconcile tensions. So for Hegel the state itself would be guarantor of the civil society (Kaldor, 2003: 19), a view quite contrary to current conceptions. Marx and Engels did not see the state as the protector of the civil society but rather as its instrument. The civil society or bourgeois society would create the demands that the state has to try to fulfill. The civil society itself was not comprehensive but exclusively dominated by the rich and the powerful. The civil society on the other hand would cover not only the political, but also all economic and commercial life, together with these transcending the nations but also organizing itself in the form of nations and national states (Kaldor, 2003: 20).
Later, especially due to the initiative of Gramsci, the concept was narrowed to cover only social interactions neither belonging to the spheres of the market nor the sphere of the state. Gramsci denied the direct link between economy and power but rather saw an interpretation of the needs of the economy by the politics of the power. Thus cultural and ideological contest became an important factor of interest. For him, setting the political agenda was a genuine task of the civil society (Leggewie, 1995: 176). The civil society would provide the grounds for the struggle between the various classes and other social groups, each one trying to gain a cultural hegemony and the ruling factions of the civil society at the same time providing legitimacy to the government (Hauck, 1999: 111). He saw the civil society as the real basis behind the stability of the Western governments, whereas in Russia the overthrow of the state was enough to change the system (Kaldor, 2003: 20-21). It is a decisive step from gang warfare to a hegemony (Charap / Harm, 2002: 144), especially towards a cultural hegemony not relying on comprehensive violence or all around governmental control. The citizen’s movements in the Eastern block mark another phase of the definition of civil society, which now became synonymous for those organizations beyond the market and the state furnishing of fundamental civil liberties in the modern world (Matanga, 2000: 3). Besides being separated from the state some authors try to include a confrontation with the state in their understand of civil society (Chazan et al., 1988; Keane, 1988). This inclusion is questionable as it would mean that civil society ceases to exist once its members engage in non-confrontational activities (Kasfir, 1998b: 4). More useful in the context of this study is the distinction between civil society and party politics (Carter, 2005: 81).
The equation of civil society with non-governmental organizations, as being found in everyday politics, is not sufficient, as it is a highly ambigous concept (Nuscheler, 2003: 2). Habermas puts a stress on the spontaneity of the civil society and postulates:
"Civil society is made up of more or less spontaneously created associations, organizations and movements, which find, take up, condense and amplify the resonance of social problems in private life, and pass it on to the political realm or public sphere." (Habermas, 1992: 443)
Indeed there hardly is any association or organization being created spontaneously and also movements that are made up of more than a mob do not develop in a single moment but rather by the course of time. Also most organizations being officially recognized as NGOs today would not be part of the civil society according to the Habermas' criteria. Van Rooy on the other hand argues that civil society is rather characterized by a sphere of organizations than only by loose constellations within society (van Rooy, 2004: 7). Also when trying to define NGOs a stress is being put on the point of their organized structure. Accordingly Hatch, according to Hayes, defines NGOs as:
“(1) … organizations, not simply informal groups (2) not established by statute or under statutory authority and not directly controlled by a statutory authority and (3) not commercial in the sense of being profit making or being mainly dependent for their resources on fees and charges paid by private individuals.“ (Hayes, 1996: 12)
Ball and Dunn name four key characteristics for organization to be properly called a NGO: they must be voluntary and not statutory; they are independent and not formed for personal gain as well as they should not be self serving (Ball and Dunn, 1994: 17). The term NGO itself became used in 1945 because the Charter of the United Nations needed to differentiate between the rights of participation for intergovernmental specialized agencies and those for the international private organizations, being referred to as NGOs (Muzondo, 2005: 2).
Still civil society should neither be identified with the NGOs alone nor with spontaneous associations only. The definition of Taylor is more useful than these one-dimensional approaches. He is calling the civil society "a web of autonomous associations independent of the state which, bound together in matters of common concern by mere existence or action, could have an effect on public policy." (Taylor, 1991: 52). So it is not only the fact, that an organization does not directly belong to the government, but it should be basically independent of it and exercise its influence on the government as well, rather than being controlled by it. While Taylor omits the spontaneity of Habermas there is again the political impact, that is needed to constitute the civil society, which makes it distinguishable from the sum of the citizens of a country or even the globe itself, especially as NGOs tend to be more and more organized transnationally (Nuscheler, 2003: 6).
Still there is a bit too much emphasis on organizations in Taylors definition as the civil society can also consist of individuals as well, as long as it is not institutionalized. Still there must me a distinction from private initiatives, as the actions and aspirations of civil society are not confined to the household but belong to the public sphere (Bratton, 1994: 3). So a definition, that would suit best, would be the one of Bratton, who understands civil society as "a sphere of social interaction between the household and the state which is manifest in norms of community cooperation, structures of voluntary association, and networks of public communication." (Bratton, 1994, 2).
Kaia, defines civil society as those organized sectors of the society, that are not affiliated with the government or with political parties (Kaia, 1998: 57). This point of view seems to be a bit too broad as it would include also all organizations, that are completely off the social and political sphere like hobby clubs. It is questionable, when an organization comes to existence. Already the family is the basic social organization. Indeed some approaches include also the family into the civil society as it is an important arena especially for gender conflict, as has been put on the agenda by the women's movement on the 1970s and 1980s (Kaldor, 2003: 22).
In the normative context the civil society would be those elements that agree on a minimum of values like fairness, tolerance, respect and non-violence. While the character of the entities, the civil society consists of, need not necessarily to be specified, the normative background is decisive. The use of violence is clearly excluded from the concept of civil society (Diamond, 1994: 6). This is not confined to the direct use of physical harm but also to the use of psychic violence in managing human affairs by submission to ideology and superstition, fear and insecurity (Kaldor, 2003: 3). A definition like this would put to question, whether churches or religious associations are based on belief or on superstition and consequently can or cannot be part of the civil society. Thus, such an approach would be too narrow, as chruches are know places of refuge and zones of freedom for those states where the civil society is oppressed (Okuku, 2002: 85). Brown et al. also hold that not all actors of civil society are equally serious in their social engagement or in adhering to reciprocity, tolerance and nonviolence (Brown et al, 2000: 278).
A practical definition is put forward by Brown et al, who understand the "civil society as an area of association and action independent of the state and the market in which citizens can organize to pursue purposes that are important to them, individually and collectively." (Brown et al, 2000: 275) This definition allows also for individuals to be represented in the civil society, while most authors concentrate on the organized character. Still single prominent persons might play influential roles in the civil society and the process of its formation. So it is useful, alongside organizations and institutions, to also include persons into the concept of civil society (Gemmill-Bamidele-Izu, 2002: 79).
Important because of their emphasis on excluding the economical powers is the approach of Diamond and Fowler, who understand the civil society as a realm of interest groups, their organizations and social movements that is clearly demarcated from the state as well as from the market (Diamond, 1994, 5-7; Fowler, 1996: 20-22).
Still the new models try to integrate civil society and markets as well as governments, with approaches like building social capital or private public partnerships. So Van Rooy questions this clear cut distinction between civil society, the market and the state, as it is often difficult to put a certain organization into one of the categories named above (van Rooy, 2004: 6-7). But the aims of the market are private interests while the civil society focuses on the interests of social groups inside the society, including the underprivileged ones (Brown et al, 2000: 276). The broadest definition of civil society would characterize it "as a sphere of social life that is public but excludes government activities" (Gemmill-Bamidele-Izu, 2002: 79).
It is important to note that, while civil society is distinguished from the state, its members are still trying to influence the state in its exercise of public policies and its allocation of resources (Lewis, 1992: 36).
In general it is decisive to understand that civil society "is a process, not an end-point. Moreover, it is a contested process." (Kaldor, 2003: 14) Its formation is closely linked to globalization as "a progressive process of learning wherein the skills of people expand and thereby enable them to perform better the tasks of group membership and to engage more effectively in varying kinds of citizenship behavior." (Rosenau, 1992a: 277-278)
The globalization brings about four kinds of changes. These are the stretching of economical, political and social activities across political borders and continents, the growing of networks and trade flows, the acceleration of global interaction and the deepening of its impact. Globalization "can be thought of as the widening, intensifying, speeding up and growing impact of worldwide interconnectedness." (Held, 2002: 306)
Under the impact of globalization the concept of the ‘global civil society’ has emerged to describe “politically framed and circumscribed social relations that stretch across and underneath state boundaries and other governmental forms.” (Keane, 2003: 17). The process followed the globalization from 1989 on, making it necessary to enlarge the former concept of civil society to a global scale (Kaldor, 2003: 1). Before there was a clear distinction between the societies being considered ‘civil’ and those, being considered needy to be civilized. The demarcation line of the Cold War between the ‘democratic’ west and the ‘non-democratic’ as well the difference between the ‘democratic’ North and the ‘non-democratic’ South were the coordinates to clarify the boundaries of the ‘civil society’. Due to globalization this clear cut view became questionable and the new concept of ‘global civil society’ became necessary to explain the current developments.
There are various approaches on defining this concept. The analytic-descriptive approach identifies key actors, events and institutions and examines its dynamics, trying to explain the origins and possible future developments, focussing merely on understanding what is happening. On the other hand the term global civil society can also be part of a strategic political calculation that tries to establish new facts and reach certain goals like freedom, democracy and human rights for everybody, thus actively shaping the reality, not just explaining it. This approach focuses on the manoeuvres of movements and power groups and their implications for reaching the goals. A third approach defines the global civil society as a normative ideal, advocating its establishment and issuing warnings if any obstacles for it might arise (Keane, 2003: 3-4). The most important norms for civil society are inclusion, reciprocity, tolerance and trust (Bratton, 1994: 2).
Mary Kaldor, in a non-exhaustive approach names five meanings of Global Civil Society to get closer to a comprehensive definition and pointing towards the fact, that all these approaches have normative goals (Kaldor, 2003: 11).
The first one is the Societas civilis that relies on a state of affairs with a minimum of violence and absence of coercion. Public security provides the basis for peaceful conflict solving in such a society. Arising from a concept of Civil Society that needs the state as the public monopoly of legitimate violence, this Societas civilis would be in need of a global state or something similar to provide the security and also exercise the necessary violence. This power apparatus is just developing out of global organizations, practices and rules (Kaldor, 2003: 7).
The second approach would be the definition of Global Civil Society as the bourgeois society of Marx and Hegel. This is the sphere of ethical life beyond the level of the state and above the family and includes social classes as well as various organizations and also the market. On a global level Global Civil society would mean the powers that are pushing forward a globalization from below, acting beyond the state (Kaldor, 2003: 8).
The third approach is the activist version, that tries to redistribute power on a global scale. Here emphasis is put on the self-organization and the influence the individuals can exercise on their living conditions. A specific need for this development is global public sphere of international activist networks and also free media so that information can be spread freely and new themes can be discussed democratically (Kaldor, 2003: 8). For those NGOs active in the fields of advocacy and policy analysis as well as action coordination the globalization has opened the path to participate on a worldwide scale and organize themselves globally from the bottom of many local or national initiatives to the top of a transnational coalition or organization as well as from the top of a small core to the bottom of many national sections (Brown et al, 2000: 281-282).
The neoliberal interpretation of ‘Global Civil Society’ concentrated on propagating the Western system as the only model suitable for all countries and demanding open markets for everybody as well as introducing market concept into politics. For this point of view the ‘civil society’ is a third sector of non-profit and voluntary powers that provide services the government can no longer provide. This concept can easily be transposed to the global level, where NGOs help to stabilize the situation in the fields states are neglecting or are unable to cover (Kaldor, 2003: 9). For the established international NGOs delivering services or aid in case of disaster for some decades already the globalization has increased the need for intervention but their resources are declining. Also market-orientated approaches are pressuring them for more professionalism while national NGOs in the developing countries are questioning the position of the international partners and ask to take over their local operations. So these aid-NGOs face fundamental challenges as well as they are undergoing basic changes due to globalization (Brown et al., 2000: 281).
The fifth definition would be the postmodern version centering on the principle of tolerance. The universalisms of the activist and neoliberal approaches are questioned at by some postmodernists, especially as the traditional Islamic society is understood as a civil society constituted by a balanced framework of the ruler, the bazaar and the Islam. The emphasis of this concept lies on the integration of national as well as religious identities. They aim at a plurality of global networks of contestation. (Kaldor, 2003: 9-10).
The best description the global civil society has found in the movement of the NGOs, even though they are a much smaller realm than the civil society as a whole (van Rooy, 2004: 7). They vary decisively by size, structure, fields of work as well as perspectives. Some are confined to narrow local or regional limits, others operate globally. Some are orientated on tasks, other on issues. Some hardly have any resources than the energy of their volunteers, while others are well funded, employing full-time organizers. Still their common characteristics are their challenge to social problems and their call for more political participation of the people (The commission on global governance, 1995: 254-255). According to Brown et al. there are three basic approaches for them to access the international level of participation. One is to form a transnational NGO, like TI, that is active in many countries. A second choice is building a network of coordination and information with foreign NGOs upholding the same values and the third way is to shape international coalitions to exercise pressure on the decision makers (Brown et al, 2000: 277). Especially for those NGOs concentrating on the issues of interorganizational learning and problem solving the process of globalization has meant a rapid increase of their sources for information and possibilities of interaction (Brown et al, 2000: 282).
Still, identifying the civil society with NGOs only would be a gross misunderstanding, as the civil society also is made up by many other organizations like churches, community based organizations, mutual benefit organizations, churches, faith based organizations and trade unions (Muzondo, 2005: 1 and 3), even if these, like in Kenya, don't identify themselves with the civil society (Commonwealth Foundation, n. d.: 32 and 44).
The activities of CSOs can range from addressing the governmental authorities and pressuring them to solve problems, to direct action, providing themselves governance services (Zürn, 2006: 38-39). Especially for the latter form of action the NGOs do not act as auxiliaries of the authorities alone but in fact are practically sharing responsibility with the governments (Folke-Schuppert, 2006: 238). The fundamental distinction between the national civil societies and the global one is, that there neither i a global government nor a global citizenry to mediate between (Florini, 2003: 141).
International regimes, "as sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations converge" (Krasner, 1983: 2), possess only a limited power to change the behavior within societies as they are top-down arrangements and need to be based on bottom-up arrangements to become effective (Young, 1999: 17).
As Tanzi notes, the phenomenon of corruption is neither new nor is it unique to any particular locality, country or region (Tanzi, 2002: 19). On the contrary, it is a global phenomenon, with varying degrees of severity from one country to another.
Corruption can be assigned as many meanings as one is willing to consult. In the simplest of formulations and as understood by the anti-corruption watchdog Transparency International (TI), corruption is the “misuse of entrusted power for private gain”. This definition, as opposed to the one used by the World Bank (WB), which defines corruption as the “abuse of public power for private benefit” is more comprehensive, as it acknowledges that corruption is not only restricted to the public sector, but that it also exists in private sector activities, especially in large private enterprises in procurement or hiring. (Tanzi, 2002: 25). In the public sector, it is evidenced by instances in which public officials misuse their positions in office to pursue their own interests (Spector, 2005: 5).
Corruption can be considered to be endogenous to the political process (Charap / Harm, 2002: 135). So corruption could rather be identified with the "rent-seeking activities associated with the predatory hierarchies" (Charap / Harm, 2002: 149) and broadly as "power abuse" (Andvig / Fjeldstad, 2000: 11).
In general corruption is connected with state activities and especially those sectors, where the state is exercising a discretionary power having a monopoly as for giving out permits and licenses (Tanzi, 2002: 26-27). There are three conditions favoring corruption, which are the overall level of potential benefits through corruption, the costs and possible penalties and the bargaining power of those to be bribed (Chand / Moene, 2002: 91). A monopoly might always easily provide a profound base for corruption (Charap / Harm, 2002,148-149). Crushing a monopoly might be a decisive move to counter corruption (Charap / Harm, 2002: 155).
In many countries not only office holders are corrupt, but also ordinary citizens. So buying votes for electoral processes is a commonly known road to parliamentary power. This vote buying forces the politicians into corruption to exploit their office for paying off their constituents, still it limits a rigid self-enrichment (Rose-Ackerman, 1978: 38). Thus the profits of corruption are at least partially handed over to the voters.
Besides bribery and extortion also the channeling of public funds to certain clients, in return for political support, is an important form of corruption (Khan, 2006: 3). A distinction can be made between petty corruption of low paid public officials, the grand corruption on the higher levels of government and the state capture, when politicians are being bought on a sustained basis by some entity (Spector, 2005: 1-2).
Causes of Corruption
As well as varying in form and scale, corruption is a complex phenomenon that also takes root at multiple levels of government and society.(Tanzi, 2002: 26-27). From massive patron-client networks to the mild nepotism of a mid-level public servant, Robert Klitgaard summed up the reach of corruption in the elegant formula: corruption = (monopoly + discretion) – accountability. In other words, corruption begins anywhere that power is freed from oversight (Klitgaard, 1988)
Consequences of Corruption
As one knowledgeable observer succinctly notes, corruption produces human rights violations and affects many lives. Most hard hit by this scourge are the poor due to their inability to pay bribes and powerlessness to change the status quo. Further, corruption perpetuates discrimination and largely contributes to the violation civil, political, economic, social and cultural rights (Robinson, 2004: 7). On the whole, one can say that corruption spins a complex web in which the state quickly loses its authority and ability to govern for the common good, making it possible for critics to be silenced, for justice to be subverted, and for human rights to be violated.
On the governmental level the approach of the leaders to corruption can be characterized by two types of behavior. The 'benevolent autocrats' try to increase the wealth of the society as a whole while also considering their own financial interests. The 'kleptocrats' on the other hand are only interested in their personal property and will develop the society only if this might increase their own revenues (Andvig and Fjeldstad, 2001: 38). When the leaders are corrupt this has a determining impact on whole the public sector (Tanzi, 2002: 38).
As for the political system political corruption and funds being raised in intransparent or illegal ways can severely damage the drive of the people to participate in party politics (Tshitekere, 2002: 64). Political corruption has an especially negative impact on the participation of vulnerable groups like youth or women in election as candidates (Bryan and Baer, 2005: 76).
For the economy corruption turns a market into a field where transaction costs are high, so the market becomes inefficient (Khan, 2006: 3). Still corruption points to a basic tension between the electoral process and the market (Rose-Ackerman, 1978: 2). Empirical evidence shows that countries with a high income per capita suffer less from corruption (Khan, 2006: 5). So, the overall effects of corruption are a damage to the governance, to the growth and finally to the stability in the country itself and also in its region (Spector, 2005: 7). As for decisions of spending public resources due to corruption the investment in questionable projects is as important as the procurement of goods and services for the government (Tanzi, 2002: 29).
The major question on corruption is the mechanisms that allow individuals to benefit from corruption on the expense of the society as a whole. The basic answer, why it can't happen, is the poor organization of those, that try to counter corruption (Khan, 2006: 3). For the case of corruption of politically elected officials already the presence of an opposition strong enough to take advantage of the weakness of the office holder might be an effective way to prevent corruption or at least hike the price for bribing decisively. So if only minority groups are well organized enough to challenge the rulers, the tendency will be to have many cases of corruption with a minimum input of money needed for the bribery (Rose-Ackerman, 1978: 27-28).
The most important theory on corruption is the greed plus discretion theory, holding that politicians or public officials are greedy and, if not monitored, can use corruption to support their greed (Khan, 2006: 12). Some also the state apparatus is fractured into various factions, each of them pursuing their own interests for increasing their income and power (Tanzi, 2002: 51).
Where a discretionary authority is given to a public official the chance arises that the aims of the higher authority are countered by the means of corruption (Rose-Ackerman, 1978: 2). Derived from this theory are the standard policy responses like:
- reducing discretion of public officials though privatization and liberalization;
- raising the salaries for public officials to let them take less refuge to bribery and also increase the loss in case they loose their job due to being identified as corrupt;
- improving the law to allow punishment of corrupt officials and
- encouraging greater transparency in the process of decision-making on all levels of government, as well as decentralization and a deepening democratization of the whole society (Khan, 2006: 13).
The points named above should lead to a reduction of corruption, at least in theory. Empirically there is hardly any evidence that a change of law has helped to reduce corruption in developing countries, despite numerous programs trying to improve the law in developing countries (Carothers, 2003). Higher penalties might reduce the number of cases but could lead to higher bribes being paid as well or by the government using false allegations of corruption to get rid of its opponents (Tanzi, 2002: 35 and 52). Also the creation of law enforcement bodies has not shown satisfying effects (Spector, 2005: 6).
Also raising of salaries can only improve the corruption situation if it is accompanied by mechanisms that lead to a higher risk of detection of corruption, or else would need a very high increase of salary (Tanzi, 2002: 33-34; Van Rijckeghem / Weder, 2002: 59-60), especially in highly bureaucratized societies (Dabla-Norris, 2002: 131). This was put into practice by the so-called 'dream-team' of Richard Leakey in Kenya, that – being supported by the World bank -, paid its officials at least ten times the regular salaries to design effective public reforms, including an anti-corruption programme (Andvig / Fjeldstad, 2000: 108-109).
As these mechanism would mean a severe change in the legal and political structures it is hardly achieved. So, unsurprisingly Cross-national empirical studies show only little if any relationship between a decrease of corruption and in increase in salaries (Rauch / Evans, 2000; Treisman, 2000), still it is important to keep a relative balance between the wages in the public sector and those in the private sector (Tanzi, 2002: 51-52), even though an eradication of corruption, while neglecting indirect effects, could only be expected if the public sector wages are two to eight times higher then the manufacturing ones (Van Rijckeghem / Weder, 2002: 79).
Case studies from Eastern Europe as well as from the Indian subcontinent also show, that liberalization and privatization were not leading to a reduction of corruption but on the contrary corruption rose dramatically during these processes (Harris-White / White, 1996). While the public enterprises have been a major field of political corruption before the privatization also often was performed with a high occurrence of corruption involved (Tanzi, 2002: 23-24).
Also the strengthening of transparency and the installment of new structures like ombudsmen seem to show only little effect in those countries where governance is poorest (Khan, 2006: 13). In these cases or where there are no institutional control mechanisms at all the importance of the existence of a free press "cannot be exaggerated" (Tanzi, 2002: 36).
Treisman found no evidence that corruption in general is lower in democracies but democracy seems to have only a small, long-term effect on corruption (Treisman, 2000). Still the successful fight against corruption and the reform of the state can not be separated (Tanzi, 2002: 51).
So, despite some efforts to counter it, corruption is still rampant around the globe, in developing as well as, a bit less intensive, in developed countries (Spector, 2005: 2).
As corruption has many faces and takes different forms in the various sectors, each of these sectors needs to be treated by specific answers (Spectors, 2005: 5). A possible means to counter corruption is external accountability as this might force governments to reduce their level of corruption (Spector, 2005: 6).
A decisive external incentive to reduce corruption is US government's Millennium Challenge Account that refuses assistance to countries not fighting corruption (Brainard et al., 2003). Still it is questionable, if this policy will always be applied, especially in crisis regions where the US might look for allies. But at least additionally also some of the loans of the World Bank and the International Monetary Fund (IMF) are granted only under the condition of fighting corruption (Spector, 2005: 9). Another external pressure mechanism is the growing number of treaties and conventions being agreed on by various international bodies like, between others, the African Union Convention on Preventing and Combating Corruption, the Asia Development Bank Policy on Corruption, the Inter-American Convention Against Corruption, the Organization for Economic Cooperation and Development (OECD) Convention on Combating the Bribery of Foreign Public Officials , the United Nations Convention Against Corruption (Spector, 2005: 9). The African Union Convention of 2003 as well as the United Nations Convention of 2003 both also have been ratified by Kenya (Mirugi-Mukundi, 2006: 12).
While broad and general anti-corruption campaigns mostly only resulted in raising public awareness for a short time, special programs for critical sectors like education or health can be sustained on a longer term and thus gain more impact (Spector, 2005: 6). The decisive fields of corruption will be analyzed separately in the following chapters.
If the judiciary is corrupted this results in the wealthy and powerful being the only ones having access to its services and escape prosecution as well (Pepys, 2005: 13). Corporations might try to bypass the judiciary if they view it as slow or corrupt (Keohane / Nye Jr., 2000: 23). Police as well as prosecutors and court staff often work together in undermining the judicial processes. One reason for the vulnerability of police and magistrates to corruption is the low income they achieve in many developing countries despite their overload of work and miserable working conditions (Pepys, 2005: 14).
If the judiciary is believed to be corrupt by the population it also tends to abide less to the law and also rather take it into their own hands in case of disputes (Pepys, 2005: 14). So corruption in justice system can lead to an increase in violence. Also foreign investors are much less likely to choose a country with a corrupt judicial apparatus, which might lead to a slowing down of the development (Pepys, 2005: 14).
The underlying causes for corruption in the justice system are the low respect of the public for the government in general and especially for the courts in many developing countries. Also many leaders of government are already corrupt and do not abide to the laws themselves. If patronage is an established mechanism in a country the citizens are less likely to appeal to the justice system but rather try to seek help from powerful individuals. In countries where personal progress is determined by contacts rather than by qualification also the court decisions are subject to personal influence. In some countries the general level of corruption already is that high, that it is considered common by most people to bribe and it is more or less the only way to access certain services. This general corruption also affects the justice system. Also fear of retaliation might have a significant influence on the law enforcement as well as on court decisions. The police as the primary instrument of the justice system can use its power to delay or refuse investigations, destroy or forge evidences, thus already determining the possible outcome of a court case. The prosecutors also play an important role on processing a case and also the prosecution might be stopped due to the demand of some power-holder like a minister or such (Pepys, 2005, 15-16).
The ways used to perform the corruption are differing and depending on the possibility to be discovered by the media, the public, control boards or other watchdog agencies. It could be a cash payment, as possibly preferred by private companies and interest groups, but also in case of bureaucrats it could be providing benefits for a company the person to be corrupted has an interest in. If the risk of detection is high, tripartite schemes night be used (Rose-Ackerman, 1978: 75). The forms of corruption in the justice sector vary from paying bribes to officials to pressure, including the pressure inside the sector hierarchy, or illicit remuneration, which can be a payment but also a career advance (Pepys, 2005: 17-18). Superseding the problem of corruption in the justice system is the influence on the legislatory process. Especially in countries where there is less control on contributions to political parties it is more likely that politicians and even whole parties might be bought to vote for or against certain amendments and laws (Rose-Ackerman, 1978: 15).
Answers to corruption in the justice sector should initially include an independent assessment of the corruption that should involve all the stakeholders, as the detailed information about the extent of corruption is decisive in designing the suitable response to it. It is decisive to find evidence and not only follow the popular beliefs or the public opinion, especially in deeply corrupt countries, where every official is believed to be corrupt. If there are trustworthy leaders or senior officials inside the magistrates and the police force they should be involved in the assessment and especially also in the implementation of the policies. General strategies to reduce corruption in the justice sector are limiting the discretion of officials as well as the authority of decision makers while on the other hand strengthening the independence of the judiciary, improving the accountability and transparency as well as improving the conditions of the employees and changing the society's attitude towards the corruption in the justice sector (Pepys, 2005: 19-20).
TI in 2007 published a series of policies aimed at fighting corruption in the Judiciary. A basic approach is the spreading of a deeper knowledge about the judicial system as well as bolstering the independence of the Judiciary.
To enhance transparency income declarations should be demanded from the judges before and after their appointment. A crucial means in controlling the judicial decisions is the free publishing of the sentences as well as ensuring access of the media to the relevant information. To make better use of the information the media workers should be trained to cover court and legal issues (TI, 2008a: 1-4).
To strengthen the accountability and discipline of the Judiciary TI proposed a strengthening of the independent culture in the judicial system, one central part of it being an independent judges association, and warned of external accountability, as it might open the road for harassment and intimidation. While disciplinary rules are inevitable also a limited immunity is needed to guarantee for the independence of the judges. To counter corruption whistleblower protection as well as hotlines are considered (TI, 2008b: 1-4). The independence of the judiciary government can be enhanced by creating judicial councils that, instead of the president or the parliament, become responsible for appointing and promoting judges. These councils showed significant positive effects in several Latin American countries (Hammergren, 2002). TI calls for transparent procedures for the appointment with clear election criteria and involvement of the civil society as well as an enhancement of professionalism (TI, 2008d: 1-4). A means to strengthen independence of the judiciary also is to prolong the terms of office for the judges, which best should be a lifetime appointment. The appointment and promotion systems must rely on accountable and transparent, merit-based standards (Pepys, 2005: 20-21). TI also points to the need for reasonable terms with a security of tenure as well as appropriate education, salaries and working conditions (TI, 2008c: 1-4).
Prior to taking office all officers of the police and officials of the magistrate should declare their own assets and those of their close family members. These lists of assets should be regularly updated and monitored (Pepys, 2005: 22). Also they need to be published to become an effective means in the fight against corruption (Mirugi-Mukundi, 2006: 29). An important method to prevent corruption also is a random case assignment operating independent from all persons possibly interested in the case, also all decisions should be published and verbatim court transcripts should be created to allow control (Pepys, 2005: 23). To improve the image of the judiciary in the population it is decisive to enforce an ethical code and also prosecute the judicial officials themselves in case of misconduct (Pepys, 2005: 22).
Strengthening the position of the public prosecutor can be a decisive step in fighting corruption, examples from Colombia, Honduras and India have shown (Pepys, 2005: 20). An important partner in fighting back corruption can also be the bar associations which can not only monitor cases of corruption due to their insight into the system but they can also discipline their own corrupt members. Also civil society organizations can increase public awareness of corruption as well as provide a more accurate image of its extent (Pepys, 2005: 25). The press can play a positive role in revealing case of corruption inside the justice system, but it can also contribute to it by publishing false allegations or reporting incorrect (Pepys, 2005: 26). The same goes for special anti-corruption forces that might be used by the government to blame its critics for being corrupt, as it happened in Kenya (Mirugi-Mukundi, 2006: 24-25).
If not only single politicians or office holders are corrupt, but whole parties, these can also be addressed by interest groups. The political parties are often seen as the center of the corruption problem in developed as well as underdeveloped countries (Blechinger, 2005: 27). The stronger a party the better is its bargaining position and thus the higher is its price (Rose-Ackerman, 1978: 46). Still, even a dictatorial party leader must consider the possible outcome of the next elections (Rose-Ackerman, 1978: 47). Election fraud might be the favorable method of consideration, intensive campaigning another one – but this opens the need for funds and thus might lead to corruption (Blechinger, 2005: 29; Tanzi, 2002: 32). Political contributions are one of the central foci that TI pays attention to (TI, 2000).
If competing parties could be corrupted, the price for influence tends to fall (Rose-Ackerman, 1978: 48) also the likeliness of corruption decreases in a competitive multiparty system (Blechinger, 2005: 34). The best checks on the grand political corruption seem to be a political system producing serious challengers for the leadership routinely and an issue-orientated and well-informed electorate (Rose-Ackerman, 1978: 57), that has no lasting party affiliations or is ready to stop them at least at certain critical times. But also a rapid fluctuation in political leadership might be a reason for corruption, when those who grasp power are aware of he fact, that they will be in such a position only for a short term and thus try to catch all the can in the time they have (Blechinger, 2005: 32).
Decisive factors of limiting elections flaws are term limits as well as transparency in resource revenues (Collier, 2009). Where there is only one party or no serious challenge to the ruling party or a ruler staying in power for long terms the corruption can take the form of public funds channeled to private pockets and also of extortion of the business sector (Blechinger, 2005: 29-30).
The buying of votes is a common manifestation of political party corruption in developing countries. Once established as a custom it need not be the parties to take the initiative but the voters are actively asking for presents (Blechinger, 2005: 30).
The temptations of corruption for political parties are especially strong when a democratic system is just establishing itself, the voters are not having strong ties to any of the newly founded parties and also the winning of the election would offer the chance to shape the countries' future during a decisive period. Also the supporters tend to invest as many funds as possible into their party, hoping that they will be rewarded later. The politicians having gained a seat in parliament are likely to favor those constituencies that they had been voting for them (Blechinger, 2005: 31). This can result in an unfair distribution of resources and a form of collective corruption, but also if the electorate is not monitoring the activities of the politicians carefully enough the politicians might fill their own private pockets. A strong party discipline might be used to reduce and control corruption, but if the leaders themselves are corrupt it might also be used to force the party member into corrupt activities and to silence critics (Blechinger, 2005: 32-33).
To counter corruption within the party system it is important to restructure the external framework of the party activities by party laws, regulating the political contributions, as well as to redesign the internal structures to allow for more inner party democracy (Blechinger, 2005: 36-38).
The government usually plays a central role in providing basic civil services like education and health care and also in guaranteeing an equitable access to them at least to a certain extent. But often enough governments fail to provide these services to a satisfying extent leading to restricted access, inefficiency and overall poor quality (Vian, 2005: 43). Corruption in the health sector stretches from costly, unjustified construction projects or high-tech procurement to payments directly demanded from the patient in exchange for a treatment or a better quality of service. Also the purchase of equipment as well as of drugs is a field prone to corruption. Bribery might also be applied to gain access to medical educational institutions or to forge laboratory checks for new drugs or to persuade practitioners to prescribe certain drugs only (Vian, 2005: 44-46).
In the education sector corruption is mostly characterized by the petty form, as funds are mostly spend in small amounts and widely scattered. The forms range from payments for degrees or private teaching but might also include abuse of funds or some customs like gift-giving which are viewed as corruption by some, as a cultural habit by others (Chapman, 2005: 66-67). In general the funds really available for education are smallest where the corruption is highest (Mauro, 1997: 10).
An important sector of corruption in the public service is the tax system, some countries like Uganda even decided to close down their whole tax administration and create a new one to counter this problem (Tanzi, 2002: 28). The general lowering of taxes and application of a system with broad bases might help to reduce corruption in the tax system but this is contrary to the anticipated powerful role some governments seem to favor (Tanzi, 2002: 53). Other common practices are the recruitment practices for public sector jobs due to patronage and also the employment of non-existing ghost-workers, with the heads of their offices collecting their salaries (Mirugi-Mukundi, 2006: 32-33).
The last decades saw a growing attention being spent on corruption, which is partly due to the end of the Cold war and thus the possibility to criticize those deeply corrupt countries, the Western bloc was depending on to defend its values. Also corruption in the Eastern bloc was not a common research topic before. Additionally the media environment to unveil corruption has developed decisively in many countries during the course of the last decades and also international organization like TI have joined the scene uncovering the real extents of corruption. Besides this growing awareness of and information about corruption there might also be an actual increase in corruption, as people from countries with hardly any corruption now get into closer contact with countries where corruption is customary (Tanzi, 2002: 20-21). The growth of international trade has also increased the opportunities to pay bribes (Tanzi, 2002: 23). For the developing countries it is important to note, that a high level of corruption does not correlate with economic growth but rather seems to prohibit it by restraining private sector activities instead of encouraging them (Dabla-Norris, 2002: 112).
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