Corruption, fraud and the missing outrage

By John Kamau

There are two Latin phrases used in law that seek to distinguish between what is wrong because
it is, and what is wrong because the law has said it is. ‘Mala in se’ means an act is inherently
wrong e.g., rape or murder. ‘Mala prohibita’, on the other hand means that an act is wrong
because a group, e.g., a state, has prohibited it despite it not being necessarily inherently ‘evil’
e.g., photography in a prohibited area.

It is easy for the society to be outraged en masse by those acts that are mala in se. That is why a
mob will quickly form and lynch someone that snatches a bag. The action of the mob is often
impulsive in such cases and the punishment is swift. The perpetrator is also very clear that what
they are doing is wrong and that is why they flee immediately they snatch the bag.

It is consequently relatively easy to organize a society against many of the crimes that relate to
acts that ‘everyone’ considers wrong and evil. It is thus possible to have ‘organized resentment’.
Surprisingly though, this does not appear to be the case for many white collar or economic
crimes including corruption and fraud.

Chapter six of the Kenyan constitution seeks to establish integrity in the leadership of the
country by setting minimum standards and expectations. Various Acts of parliament outlaw
offences such a bribery and corruption, money laundering and tax evasion. The Mwongozo code,
MKenyaDaima Code of Conduct and many corporate policies emphasize integrity and declare
zero tolerance to fraud. Despite all these laws and policies, corruption and fraud in both the
public and private sectors seem to continue unabated.

Maybe even more concerning, is the fact that a majority of Kenyans do not seem to be
sufficiently outraged by reported corruption or fraud. I say this because our decisions about who
we vote for, who is appointed to what position, whose money we accept or what company we
choose to work for or do business with is seldom informed by reported integrity concerns
relating to such individuals or businesses.

Is it a case of us as a society considering corruption and fraud as only mala prohibita? Acts
which are only bad because there is a law somewhere that says so but which we otherwise
consider as not inherently repulsive or damaging? As acts that are okay so long as you don’t get
caught? Acts we can excuse so long as one can avoid conviction by a court? As victimless
crimes?
Given our attitude towards economic crimes, the answer to some of the above questions must be
yes. At least to an extent. As such, it is important to ask why it is the case that we perceive
corruption, fraud and other economic crimes so leniently.

One of the reasons is that economic crime is not easy to understand. It is very easy to understand
what chicken theft is and therefore get angry with the chicken thief. On the other hand, there is
likely only a handful of Kenyans that understand what the Goldenberg or Anglo-Leasing
scandals entailed. Despite the commissions of inquiry, court cases and numerous investigations,very few Kenyans will tell you who did what in any of the major scandals, how what they did
was wrong and what the consequences were. That it takes years for such cases to be successfully
prosecuted does not help matters. As such, the average citizen wouldn’t know why they should
be outraged and where to point their outrage.

A second albeit related point is that despite the pervasiveness of economic crime, few people
appreciate the extent of the harm such crimes cause, especially when each crime or institution is
looked at independently. This ignorance is both intentional and unintended. This is partly the
case because many perpetrators, beneficiaries and in some cases even the victims of economic
crime are people in authority, and it is not in their interest for the full extent of the problem to be
established and/or broadcasted.

The result of the above is that there is very little investment in investigating fraud and in
researching its impacts and costs. Because its impacts are not well researched, they are
underreported and the true impact of fraud and corruption is not immediately apparent. This in
turn means there isn’t enough investment made in investigations or in creating awareness about
the effects of economic crime.

To effectively fight corruption, we need to be sufficiently outraged by it. With outrage, we may
be able to create the organized resentment required to not only punish fraud and corruption
where it happens, but more importantly, that will make it harder for those with the opportunity to
commit fraud or corruption to rationalize and justify it.

The writer is an Associate Director, Forensics Advisory services, PwC East Africa region.

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