The employment court of the High Court has temporarily suspended lifestyle audits on Kenya Power employees being implemented as part of the ongoing restructuring and reform of the electricity utility.
The stage has been set for a high-stakes court battle that promises to be a cause célèbre, especially because both employers and employees will be waiting to see what the courts say about the legality of lifestyle audits as practised in corporate Kenya. Is there a case for tweaking the legal framework governing the practice of forcing employees to explain unexplained wealth?
All employees of the financially troubled utility have been directed to disclose and declare their wealth, including assets of their spouses and children under their support. The workers’ union has moved to court to block the audits.
Let’s wait to hear what the courts say about the right of an employee not to provide evidence that is likely to be used against him. Let’s hear the legal arguments about the constitutional presumption of legal acquirement of property.
I’m not a lawyer. But as a regular commentator and follower of the goings-on in both the corporate world and the public sector, I find this issue relevant. Interest disclosure systems and asset forfeiture proceedings have become the popular tool for managing conflict of interest and illegal enrichment in corporations.
But questions arise. Can the information an employee provides in routine asset declaration be handed over to law enforcement bodies? Do lifestyle audit laws create a duty on you, as an ordinary employee of a company, to justify the legal origin of all your wealth and possessions? Is it a crime to file false information? Where is justice in a system that shifts the burden of proof of improper self- enrichment to employees of state corporations?
We must all hope that this court case will settle some of these pertinent issues.
A supporter of lifestyle audits, I believe that, properly conceived, financial and interest disclosure systems can be a highly useful device for detecting conflict of interest and tracking illicit enrichment by staff. But the problem in this country is that lifestyle audits and vetting of workers don’t serve any useful purpose.
In 2002, supplies officers working in the public sector went through months of uncertainty and anguish when the Narc government indiscriminately suspended everyone, ostensibly to pave the way for investigations and lifestyle audits. Months later, all were ordered back to their offices.
Did the vetting lead to improved efficiency and more transparency in procurement in the public sector? Zilch.
In 2015, President Kenya ordered lifestyle audits on employees of the Kenya Revenue Authority. We still don’t know how it ended. What did that vetting of police officers by the Johnston Kavuludi commission in 2015 achieve beyond confirming to us what we already knew: That the police service is a swamp of distrust and corruption?
What we remember best about the commission was that bizarre story of how Kavuludi was sent a box containing a severed human head and two human hands covered with blood and the message “Kavuludi you are next”.
I have suggestions for the team implementing lifestyle audits at Kenya Power. First, you must handle the process with extreme caution and professionalism.
A lifestyle audit that indiscriminately targets the entire workforce of such a large company, and which relies exclusively on self-declarations of wealth by the workers being investigated, is doomed to fail.
You have better chances of success if you adopt a less-obtrusive process that relies mainly on robust uses of resources of state agencies, such as the Financial Reporting Centre (FRC) and the Assets Recovery Authority.
After all, we live in a surveillance society, where information on one’s lifestyle is stored and shared across multiple databases—from close circuit cameras to land and company registries, Huduma Namba, motor vehicle registries, mobile telephone data and supermarket and petrol station loyalty cards.
Lifestyle audits must be evidence-based to avoid the risk of trampling civil liberties of the far greater majority of innocent workers. Working with FRC can, therefore, yield big results since this little-known agency has acquired a great deal of IT capacity for tracking flows of illicit wealth.
I will be the first to accept that the bid to break corrupt practices and networks within Kenya Power being spearheaded by the board of the company has progressed very well.
However, focus must now be on the areas where corruption imposes the highest cost— namely, expensive electricity from independent power producers, procurement of cables, transformers, meters and poles, and the expensive dollar loans that continue to exert immense pressure on the company’s balance sheet.
The fortunes of Kenya Power can improve in a significant way, depending on the pace of implementation of the recommendations of the Presidential Task Force on Review of Power Purchase Agreements.