Sunday, January 21, 2007

Anglo Leasing: Winners and Loser’s

The last word in Anglo Leasing scandal has not been spoken, to borrow a Norwegian expression. The exoneration of cabinet minister Kiraitu Murungi, former cabinet minister David Mwiraria and Vice President Moody Awori by the Kenya Anticorruption Commission (KACC) and the Attorney General (AG) from any wrong doing does not bring a closure to the scandal. But it has produced winners and losers in the saga.

The investigations were triggered into action by claims of the runaway former Ethics and Governance PS Mr John Githongo. The AG closed the files on 15 January 2007 on recommendation by the KACC. As the Anglo Leasing case has attracted high political, public and international interest the action by the Kenyan legal institutions was received with mixed emotions. There are those who feel that the institutions have short-circuited the public and the war on corruption and those who regard the action as a victory of rule of law.

The winners in the saga are the suspects, President Kibaki and his government and the legal institutions and rule of law. On the losers’ side are Githongo, opposition politicians and Kenyan people and the war on corruption.

The biggest winners are the suspected persons for being exonerated and being given a new political lease of life. Those who had stepped aside from their ministerial positions can now hope to rejoin the government, and those in the government already will feel vindicated from any wrongdoing. For them this is a triumph of rule of law. Their innocence has been vindicated.

The other winner is Kibaki and his government. His close and loyal lieutenants have been cleared of crime by "independent and impartial" legal institutions. This is especially a triumph for Kibaki because he has all along insisted for concrete evidence before asking him to take any political action such as sacking his cabinet ministers. We can remember that allowing the resignation of his cabinet ministers was not his initiative but was imposed on him by demands from the opposition and the public. Kibaki and his government may regard this a victory of rule of law unless any impropriety and interference with the independence and impartiality of the investigating institutions can be rightly imputed and demonstrated against them. It is also a victory for them against those who have accused Kibaki and his government of inaction. Especially, it is a blow to Githongo's claim that the President did not heed his (Githongo's) advice. The president did not have to do no more than direct the allegations to be investigated and allow the relevant institutions to carry out their work without interference.

KACC especially has been accused for lack of impartiality in the Anglo Leasing cases affecting current government officials. It must have been a difficult decision for the Director, Aaron Ringera to dismiss allegations against his former colleague and legal partner Kiraitu Murungi knowing this could be used against the KACC. That Ringera did this is a bold decision and measures to his no nonsense man character. It was also a daring action by the AG, who is allegedly implicated in the scandal, to accept recommendation to close the cases by the KACC. The two institutions were walking on a tight political and legal balancing rope. For them, they are winners for upholding the law and rule of law instead of popular political expedience as demanded by the public, media and opposition. It is a triumph for democratic and legal institutions against mob justice and trial by the media.

The rule of law is also a winner. In criminal law, Blackstone's formulation (also known as Blackstone's ratio or the Blackstone ratio) is the principle that it is "better that ten guilty persons escape than that one innocent suffer". Commenting on the principle the Wekipidia says that "as a principle of justice, the imperative that the innocent not be abused by the system was generally considered self-evident during the enlightenment era, or any other time liberty was a significant force. Authoritarian governments, on the other hand, tend to lean toward erring on the side of punishment, lest any guilty man escape." It is imperative that the law always guides legal institutions even as public interests are considered. The institutions have a duty to make sure that the guilty person is punished and not the innocent. That is the basis of the cardinal legal principle of the presumption of innocence in criminal trials. In legal matters, there is no room for mob justice. For any unbiased legal mind, the Githongo evidence against Anglo Leasing suspects was lacking. It could not sustain a conviction beyond reasonable doubt. The Law Society of Kenya chairman, Mr Tom Ojienda, has defended KACC saying the evidence produced by Githongo could not secure a conviction. Even before taking a matter to court, it is the duty of the prosecution to ascertain that the evidence relied on establishes a prima facie case. That is, the evidence must be adequate to put the accused person on his or her defence.

Githongo is among the losers in the saga. His allegations against the suspects did not stand the scrutiny of law according to the investigators and the prosecution. It could not establish a prima facie case. This is not to say that a crime was not committed. Githongo has also asserted this in a press statement the Standard 21 January 2007. The question for the investigators and prosecution was did the suspects commit the crime alleged? Were the suspects the culprits? The problem with Githongo’s evidence is that it is based on a conspiracy theory, which alleges that the suspects were hindering investigation on the matter. This could have arisen because he mixed roles. He absconded his legal role of an advisor to the president and instead embarked on self-imposed role of an investigator. In the circumstances, he did not give the institutions endowed with that role time to do their work. As an investigator, he also become the prosecutor and the judge. He fed the President and the public with a conspiracy theory and not concrete evidence. Now Githongo says that Kenyans will soon know the truth on Anglo Leasing contracts. Did he withhold any useful information from the investigators and the public? Was there more facts and evidence than in his report to the President and the public? If that is the case, then he has not been truthful. He is part of the cover-up.

The opposition politicians are also losers. They backed Githongo allegations blindly. They have been demonising the only democratic and legal institution with the competence to investigate the scandal instead of supporting and nurturing them. Political bias has also meant that vengeance rather than justice, drove the politicians. They were more concerned with ouster of the suspects from the government and weakening the authority of the President rather than the proper investigation of the scandal.

But the greatest losers in the saga are the people of Kenya and the war against corruption. The guilty have not been brought to book. They are out there enjoying their ill-gotten wealth. A good advice to Githongo is that, if he has nothing useful to add to the investigations, he should shut up and let Ringera (KACC) and Wako (AG) get the guilty. If they fail, they will be held accountable and not Githongo.

In conclusion, the lesson to learn from the whole saga is that the politicians, the media and the public should put their faith and trust in institutions and not individuals. Now, the focus is on the KACC and the Office of the AG to thoroughly investigate the Anglo Leasing scandal and prosecute those implicated by the evidence. At the end, the nation and the people will hold the two institutions accountable. Meanwhile, there should be no interference with their work from whatever quarters.


Gathara said...

Your logic is fascinatingly obscure. Such as the claim that this is a victory for legal institutions when the decision of whether or not to prosecute was made by one of the accused.

You also praise Ringera for his "boldness" in exonerating his pal, Kiraitu. In your weird scheme of things, the rule of law is upheld when officials risk public outrage, and use their positions to benefit themselves and their friends.

And by the way, as reported by the Kenya Times, last February Tom Ojienda and the entire LSK Council defended John Githongo's Anglo Leasing dossier, saying the fact that he was a permanent secretary in charge of Ethics and a presidential adviser on corruption makes his evidence credible, cogent and, prima facie, enough to sustain a charge in a court of law. I wonder what new evidence has come to light in the last one year to occasion his apparent change of heart.

It is true that Githongo was not an investigator but this is just a smokescreen to hide the fact that the real investigators have either been unwilling or unable to uncover the culprits. You conveniently forget that if it wasn't for the persistence of Githongo, the AG and KACC would have quietly let this matter drop. If this is what you mean by "interference with their work" then I am all for it.

Finally, since Wako and Ringera have previously failed to bring a single person to book for any of the mega-scandals that have rocked the country (such as Goldenberg), why should we trust that they will do it this time?

Dr. Stephen Kabera Karanja said...

If you stop injecting too much politics in the fight against corruption, the institutions concerned can make a headway. You seem to apportion guilty too quickly. Even if a saint were put incharge of KACC and office of Attorney General with your attitude he or she would be found wanting. As I have said these institutions have told us the guys we wanted hanged for the crime are innocent. Let us give them time to get us the guilty persons. The ball is in their court.

By the way being incharge of Ethics and presidential adviser on corruption does not by any amount of legal imagination make evidence credible, cogent and prima facie. I think he realized his mistake and he is honest to admit as much.

The whole Githongo affair just made the investigator sidetrack and go for the wrong guys. The time wasted following these allegations could have been used well to get to the real culprits.

coldtusker said...

I disagree...

Whatever "legal" standpoint you want to take... there are those who will justify the holocaust by saying after all it was a 'legitimate' government that killed its own people. So what?

wako OK'd the anglo-fleecing contracts. Is he impartial?

Will he sue himself for negligence?

We (the common man) do not have access to these documents under the pre-text of National Security.

It is easy to justify crime/chicanery. Witness the use of dictatorial powers by the dan idiot moi. I paid heavy personal price for his idiocy but wako justified it all.

wako has abused & misused the office of AG. A clear assault (caught on tape) on a cameraman was ignored by entering into a nolle Prosequi.

Gathara said...

Dr. Karanja,
So now demanding thatthe anti-corruption agencies and the Attorney General do their work is injecting politics? It is undeniable that Ringera and Wako have failed in their duties. That more than 15 years later, not one of those responsible for Goldenberg has been successfully prosecuted is enough to condemn them. And now there's the attempt to sweep Anglo Leasing under the carpet. Exactly how much time do you suggest that we give these two clowns? How much longer do you think they should continue to receive obscene salaries for doing nothing?

I assume the entire LSK Council is aware that "being incharge of Ethics and presidential adviser on corruption does not by any amount of legal imagination make evidence credible, cogent and prima facie." If not, then they are wholly incompetent and your quoting Tom Ojienda on this matter doesn't lend any weight to your argument. On the other hand, perhaps they did look at the evidence and their legally trained minds concluded that there was a prima facie case.

If the investigators are so easily sidetracked by signed documents and audiotape evidence, and still fail to make a case, then why do they still have a job?

Dr. Stephen Kabera Karanja said...

Coldtusker I agree that one can justify whatever they want be it holocaust or jailing innocent persons because you so desparately want to have some big fish behind the bar. The legal position I want to justify is faith and trust in legal institutions not based on one decision but through giving them time to establish that confidence. I am not a fan of Wako but I believe he represents an institution - Office of Attorney General - and as much as we would like to think that the decisions made there are his own it is not true. He has a battery of qualified lawyers who look at issues and give him advice. So unless then you have cogent evidence of lack of impartiality it is not good to generalize. Generalization blinds judgment. Sure Wako will not sue himself for negligence nor can you sue yourself, but you can sue him for negligence or for not doing his duty under the law. Also I think what should be addressed is the law that allow such an officer abuse his office. So the answer is not on the individual it is the law and institution. Can we have good laws and institutions that will work in a democratic arena. I have also suffered from dictatorship and bad institutions. But I still believe in institutions rather on the individuals.

This also applies to you Gathara. There are a number of Goldenburg and also Anglo Leasing cases pending in courts. Who is delaying the proceedings? It is not Wako or Ringera. Our administration of justice system take time because the accused have rights that are protected by law. When they invoke these rights the cases take too long but that is a price to pay for justice. Please if you have not visited the Kenya Anticorruption Commission website do so and perhaps you will understand what they are doing and see the cases they have handled and which are in court currently.

Gathara you ask how long time should we give the two. For one it is not my prologative that they hold the office and I don't care who heads the office and the salary he is getting. If Wako and Ringera were fired today, I would not shed a tear. But the question is do you think that the institutions will do a better job from your perspective without them? I believe what we have are weak institutions and laws. There is also too much interference with the institutions from the opposition which is not helpful. Take the case of Ringera from day one he has never been given peace to do his work by the opposition. I also think that Kenyans have to learn to accept decisions that do not favour them from such institutions. There is no point of crying lack of impartiality whenever the decision does not go our way. There are evenues to challenge those decision and they should be employed to the full. It is only by doing this that we can create confidence in the institutions and it takes time. I also believe that Kenyans are still full of confrontation. Having lived in a dictatorship for a long time it is understandable but it is time we shed this and employ constructive engagement.

What I was saying in my article is that the decision by KACC and AG Office was not bad if it was reached in consideration of the evidence available. But now that there are no culprits who are the culprits. The two institutions can not stop there they must now tell us who are behind the scandal. This is what we should be demanding from them and not insisting that the guys were guilty because that does not serve any purpose anymore.

I also saw the decision as a triumph for rule of law because I believe due process may have been followed in the investigation where all parties were give chance to be heard. So let us put that behind us and put pressure on the institutions to resolve the scandal. That way I think we will be serving justice and also strengthening the institutions.

Gathara said...

Institutions are fine. However we cannot sit back and allow our dysfunctional ones to continue to abet the plunder of our public resources as we await a new constitution. And, by the way, some have tried to sue Wako only to have nolle prosequis entered by him.

As for the cases in court, remember the fiasco with KACA? Who drafted the laws that set it up? And who draws up these defective charge sheets that allow the cases to drag in court ad infinitum?

Do I think that the institutions will do a better job without them? For sure! Wako's and Ringera's incompetence knows no bounds. It is all good to have effective institutions. But when you staff them with negligent and incompetent officers, then you undermine that effectiveness. You blame the Opposition for demanding what everyone should be demanding -that Ringera justifies his massive salary by delivering justice. Whitewashing Cabinet Ministers is contrary to his promise that there would be no sacred cows.

The decision by KACC and AG's Office is suspect. For example KACC cleared Kiraitu on the basis that a lawyer alleged to have given him a file on Mr John Githongo’s father, Joseph, has denied ever giving the minister such a file. However, the Standard now claims to have fresh evidence implying Kiraitu could have received the file from a senior Nairobi lawyer. That calls into question the competence of Ringera's and Wako's investigations. Secondly, the supposedly unintelligible tape was clearly audible when played on BBC TV. The fact that one of the lead investigators, Mr Hussein Were (who has since been sacked and is said to be living in fear), has publicly stated that Ringera and others at KACC interfered with the investigations also casts doubt on whether due process was followed in the investigation.

If we now follow your advice to "put that behind us and put pressure on the institutions to resolve the scandal", what guarantee do we have that they will do any better? How will we "be serving justice and also strengthening the institutions"?

I apologize for the lengthy comment but I wanted to respond to all the points you had raised.

Gathara said...

Check out Githongo's new "unintelligible" tape here. Do you still think that the investigations by Wako and Ringera were not an attempt to whitewash the guilty Minsters? It's hard not to gloat.

Dr. Stephen Kabera Karanja said...

I am looking the issues from a trained legal perspective. The so called Githongo's tapes have very little evidential value for legal investigators and prosecutors. They have nothing investigators and prosecutors can hold on to prosecute successfully the interference with investigations charges for the simple reason that they were covert and the persons alleged to make those utterances were not aware of the tapping. Secondly, Githongo was not an investigator at the time the tapes were recorded and therefore there cannot be interference with investigations. Yes, the tapes have a political value but that is not what investigators and prosecutors should be engaged with. That is why I said let the investigators and prosecutors concentrate seeking valuable evidence. As the AG stated, the substantive cases are still on and this is what will prove their worth. What the Standard alleges was not in the hands of Ringera and therefore it cannot be used against him. As good citizens they should have forwarded the evidence to Ringera. Again we do not know what evidence they have until they make it public. As a lawyer, one investigates every allegation, holds on valuable ones and discards the rest.

The new tape by Githongo suffers the same fate as the earlier one. The question is did he make this tape available to Ringera? If not why did he withhold it? How can we know the identity of the persons alleged to be speaking in there? How do we know that it is not interfered with or whether it is authentic or not? It raises many questions that need to be settled first. But for a layman, it is sensitional and I do not blame the public who are duped by these tapes. The issues raised by the tapes are important and weighty and must be settled legally first.

The responsiblity of legislating laws falls on the parliament not the person who drew them up. The delay in cases is not ocassioned by defective charges but the accused persons wanting to assert their rights. The files returned by the AG to Ringera confirms the need for cogent evidence.

Sacked employees are always bitter. But if he is aggreived he has legal channels to seek justice. Again, an institution like KACC requires loyal staff as illoyalty can serious affect the effectiveness of the institution. So there are many sides to an issue that cannot be thrushed out in a blog or a newspaper.

I remember when we fought for better institutions in the 80s our concern was that officials employment tenure be legally protected so as to give them independence and impartiality they require. That is what we have with the AG and I think also with Ringera. In otherwords, the president cannot fire them as he likes even when they make decisions he does not like. So I think the institutions are independent enough to make decisions without waiting to hear from above. That is why allegations in the tapes do not interfere with the work of these two institutions. This is what the court of law would considered before accepting such tapes.

Gathara said...

If the Standard could get their hands on evidence that eluded trained investigators, what does that tell us about the competence or industry of the investigators? In this circumstances, the act of closing the case is premature at best and criminal at worst.

The issues you raise about Githongo's tapes are the proper province of an investigation. And according to Githongo, he gave a long and detailed statement to Ringera which the latter has so far refused to acknowledge.

Mr. Hussein Were was aggrieved before he was sacked. He was dismissed because he made the allegations of Ringera's interference.

MPs are not expected to understand the legalese in which laws are drafted. That is why the bills are drafted by the AG. Otherwise, Parliament would be doing it. He is the principal advisor on matters of law and the bills were faulty, not in their intention, but in their drafting.

Institutional protections do not guarantee the worth of the people occupying the office. That's why we have get-out clauses which permit the removal of incompetents who may enjoy security of tenure. Wako and Ringera are incompetent and should go.

Even allowing for Githongo not being an investigator (a proposition which I think should have been determined by a court), the conduct of Wako and Ringera in this matter, their shoddy investigations and their obvious inability to secure convictions against the big fish in major corruption cases undermines public confidence in their offices and that is injurious to the institutions you profess to have fought for.

Dr. Stephen Kabera Karanja said...

I close this debate on my part because as I see it we debate from different paradigms.