Business Daily (Nairobi)
Albert Muriuki
10 November 2009
opinion
The arrival of International Criminal Court (ICC) prosecutor Moreno Ocampo in Kenya should be especially welcomed by the business community.
For many Kenyans, especially those affected by the post election violence of 2008, the ICC represents what generations of Kenyan leaders have failed to give the country--a check against impunity and disregard for the law.
Stability and peace are prerequisites for a successful business environment and if they are to prevail, impunity must be overcome and the rule of law deeply entrenched in the country.
Lasting peace and justice can only be achieved if past crimes are punished.
Justice in the aftermath of conflict is an important means to this end and the arrival of Ocampo should herald a new era for Kenya and Africa.
Kenya has all it needs to lead an economic renaissance in the continent if the rule of law is established and followed.
Kenya is not yet a lost cause; to the contrary, the country is ready to soar economically, all it needs to do is to put its house together.
Regardless of the events of late 2007 and early 2008, the country has numerous factors that favour its ascent.
It has an enviable human resource base with a good command of English, the lingua franca of business today.
In addition, unlike many emerging democracies, it is now taken for granted by Kenyans that a president can only lead for a maximum of two five year terms and no contemporary politician dare attempt to change the constitution to try and extend that limit as has been tried in other countries.
That is a good indicator that democracy is gaining ground in Kenya.
In its most recent report released in September this year, the Investment Climate Advisory Services (ICAS) department of the World Bank Group states that if localities in Kenya were to adopt the best practices already in place, Kenya would improve in all four areas of regulation that are a hindrance to doing business and rise 17 positions from its current global rank.
Kenya is currently ranked 95 out of 183 countries, which constitutes a drop of 11 position from its 2008 ranking.
But there are also numerous bottlenecks choking progress.
First among these is the need to hold everyone accountable for breaking the law no matter how powerful they maybe.
In Africa, the newest member to the East African Community, Rwanda, is a good example of how a country can rise from the ashes if there is a concerted effort to fight past ills and remedy past wrongs.
It is not surprising therefore that slightly over a decade after Rwanda was engulfed in the worst genocide in recent history, the ICAS places Rwanda 28 places higher than Kenya in its ease of doing business rankings and counts it the best country to do business in Africa.
Investors have significantly more protection in Rwanda than in Kenya and enforcement of contracts is much easier in Rwanda.
This is telling. One way that impunity is expressed in business is in a disregard for honouring contracts.
In a country where impunity is rife, parties to a contract know that if they disregard their contractual obligations, little if anything will be done to them since the courts are either too inept or too incompetent to enforce the agreement.
In other words, the rule of law is flagrantly disregarded and the risk that the contract will not be honoured is very high.
Based on this as a measure of the ease of doing business, a comparison between Kenya and Rwanda is befitting.
Rwanda, where close to one million people lost their lives in the genocide of 1994, is ranked at a solid position 40 in enforcing contracts through the courts.
That is a remarkable achievement by any standards.
Kenya on the other hand is placed at a disheartening 126 when it comes to enforcing contractual obligations.
Basically, the rule of law is enforced better in Rwanda than in Kenya, yet Kenya has a gross national income per capita of $767 compared to Rwanda's $406.
Due process
In 2007 during preparation for the Safaricom Initial Public Offer (IPO), the largest ever in the history of East and Central Africa, law professor Githu Muigai remarked that the blatant disregard for due process, a lack of faith in the rule of law and the weak enforcement of contractual obligations is one of the biggest setbacks for economic growth and ease of doing business in Kenya.
He dubbed this phenomenon contractual impunity.
Three months after his comments, Kenya erupted in the worst internal conflict in its history.
Professor Muigai is the only Kenyan appointed as a judge of the African Court of Human and Peoples Rights and serves as a special rapporteur for the United Nations (UN).
He felt unfairly beaten in his bid for the lead legal transaction position for the IPO after his consortium's offer documents were opened unprocedurally.
For such an incident to occur with regard to an IPO that attracted public attention the way it did showed that someone somewhere was very confident that they could disregard procedural rules and get away with it.
Although Treasury resolved the issue and the IPO went on smoothly thereafter, it was still an indication of just how low the country had sunk.
The arrival of Ocampo and the consequent opening up of investigations into the violence of 2007 and 2008 will serve as a symbolic gesture.
No one is above the law and even the mighty and powerful will face justice.
It is unfortunate that Kenya sank so low just five years after the nation was engulfed in jubilation after an historic election in 2002.
Nonetheless, it is time to pick up the pieces and move on.
If Rwanda could do it in a decade, despite the fact that they sank much lower than we did, then Kenyan certainly can.
For its own good therefore, the business community should be at the forefront of the push to end impunity and should not shy away from ensuring that peace and justice are achieved after the violence of 2007 and 2008.
For a good many, the financial losses incurred during that period are justification enough for welcoming Ocampo.
But they should also make peace and justice a priority.
Without justice there cannot be lasting peace.
Without lasting peace there can be no business stability in Kenya.
Mr Muriuki is an Advocate of the High Court of Kenya.
Be the first to Write a Comment!
Copyright © 2009 Business Daily. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
