The Controversial KACC Gazette Notice On Githongo Tapes

Below we reproduce the controversial Kenya Anticorruption Commission Gazette Notice on the John Githongo tapes on alleged Anglo Leasing Scandal cover-up by key Kenya government ministers. The decision has created uproar in the media, opposition and civil society circles. We, however, bring the entire notice to our readers so that they may make their own informed judgement in the matter. As we strongly believe that the rights of all accused persons may they be powerful government officials or lowly common man must be protected and rule of law be followed.

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KACC/FI/INQ./38/2006

Inquiry into allegations by the former Permanent Secretary in the Office of the President in charge of Governance and Ethics to the effect that the former Minister for Justice and Constitutional Affairs and the former Minister for Finance, among others, had interfered with investigations he was undertaking into alleged procurement irregularities into the two contracts awarded to M/S Anglo Leasing Finance Ltd. The contracts were for supply, installation and commissioning of a new passport issuing system by the Department of Immigration, Ministry of Home Affairs and contract for procurement of a CID forensic laboratory by the Office of the President, Investigations revealed that:

• the former Permanent Secretary was not an investigator as defined by law for there to exist an offence of interference with investigations. The investigators involved in the matter have denied any kind of interference
• the tape recorded conversation which formed the basis of the main allegation of interference is largely unintelligible, and the audible parts depict a conversation in short terse statements whose literal meaning would be a matter of conjecture
• the former PS refused to record a formal statement that would be used for purposes of any prosecution and that would explain the many unexplained gaps in the recorded conversation
• there is no evidence that would lay a proper basis for the play back and production of the tape recorded evidence in court as required
• the lawyer alleged to have given the file of Mr. Joseph Githongo, (the father to the former PS), to the former Minister of Justice and Constitutional Affairs has denied ever giving the Minister such a file.

The investigation did not therefore establish commission of any offence. The file was forwarded to the Attorney General on 6 November 2006 with recommendation for closure. The recommendation was accepted by the Attorney General on 15 January 2007.

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In a new statement the KACC have stated that the alleged new tape released by Githongo on his blog on 23 January 2007 was subject of the above notice and therefore it suffers the same fate as the early tape released to the public in 2005.

It is Githongo's Allegation on Cover-Up that Were Dismissed Says Wako

In a press statement released by the Attorney General Mr. Amos Wako, it is made clear that only Githongo's allegations on cover-up and interference with investigation were dismissed. The substantive investigations on the scandal are still on and nobody has been vindicated yet. This is in line with the approach we adopted in our commentary "Anglo Leasing: Winners and Losers" below.

Although we had not seen the original Kenya Gazette Notice, we relied on the media report, which seemed confused as to who had been cleared by the AG’s and KACC order. But our understanding was and rightly so that only the interference with investigation allegations was subject matter of the order. We feel that the media misled the public as to the nature of the order. In future, it would be prudent for the media to use journalists with a legal training to report sensitive legal matters in order to avoid confusion and misunderstanding. In this case, they should have reproduced the Kenya Gazette notice for the readers to see what was said rather than merely interpreting it for them.

According to Wako therefore only Kiraitu Murungi and David Mwiraria were subject and cleared of the allegations of interference. Moody Awori was not under investigation on these allegations. But Mwiraria and Awori are still under investigations on the substantive charges of corruption in the scandal. Kiraitu is not under investigations on the substantive corruption charges.

Below are extracts of Wako's Statement

In the last few days, there have been statements in the media insinuating that the Attorney General and the Director of the Kenya Anti Corruption Commission cleared certain personalities from the anglo leasing investigations.

Let me at the outset categorically assure the public that the investigations by Kenya Anti-Corruption Commission into the 18 security contracts (anglo-leasing and anglo-leasing type of projects) are ongoing. There were two sets of investigations arising from the said transactions.

The first category concerns investigations into the substance of the transactions themselves. In relation to that, a total of 18 contracts are under investigations. Two of them involve anglo leasing: forensic laboratory and the passports contracts. The other 16 related to security contracts.

In respect of anglo leasing contracts, substantive investigations were carried out and two cases are already before court. On 3rd october 2006 five files were returned to KACC for further investigations. I have been assured that the investigations into all the security contracts both local and international, are at an advanced stage.

The second category of investigations related to allegations by Mr.Githongo to the effect that certain personalities had interfered with the investigations he was undertaking into alleged procurement irregularities in the two contracts awarded to M/S Anglo Leasing and Finance Ltd. It is these investigations that are the subject of the investigation report released by KACC and published in the Kenya Gazette notice No. 488 of 19th January 2007.

The investigations related to these allegations were undertaken and completed by KACC who after analysis of the evidence and the applicable law, recommended that the inquiry files be closed for insufficiency of evidence.

As required by law, the report and recommendations by KACC were forwarded to me and after due consideration and Independent evaluation of the evidence contained therein, I accepted their conclusions and recommendations.

The reasons for these conclusions are well set out in great detail in the report that has just been published.

For the above reasons, the statements and commentaries appearing in the media to the effect that the Attorney-General and the Director of the Kenya Anti-Corruption Commission (KACC) have cleared certain personalities from suspected complicity in the anglo-leasing or anglo-leasing type projects (security projects) is both misleading and in bad taste.

For the avoidance of doubt, I reiterate that the investigations into all the anglo leasing and security (anglo leasing type) contracts are on going and that no person or entity has been cleared. Once these investigations are completed, the files shall be submitted to me for consideration and directions.

While I understand the concerns and anxiety of the public and their desire to have the investigations concluded, and those involved brought to book, nonetheless, I would appeal to all concerned to ensure that they get their facts correct before making public utterances on matters under investigations.

It should also be understood and appreciated that all those under investigations are entitled to the due process of the law. It is the responsibility of the Attorney General, as the custodian of the law, to ensure that the rights of the public including those under investigations are respected and upheld.

We are a country under the rule of law and accordingly the fight against corruption must and should be fought and won in strict accordance with the due process of the law – a cardinal principle of which is the presumption that a person suspected of crime is innocent until he pleads guilty or is found guilty by a court of law after a fair trial.

Members of the public should desist from making statements which will prejudice the constitutional right to a fair trial in these matters.

Read full Statement Here.

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.

Corruption Can be Defeated - Nairobi Town Clerk Shows The Way

Over the years corruption which had become the way of life in Kenya had effectively reduced the City Capital of Kenya, Nairobi to a failed city. Nothing except corruption seemed to work. The infrastructure was in a devastated state, water taps had dried, gabbage littered all corners of the city and roads were full of giant potholes and impassable. The lack of street lighting had turned the streets to valleys of death and insecurity drove residents to their homes before dark fall and business was restricted to daylight hours only. The buildings were in tatters, both human and vehicle traffic obeyed no rules turning the roads and streets into huge human and vehicle nightmare. At the same time, the City Hall administration was the most corrupt of the lot and nobody seemed to be in-charge.

But all these have changed. And one man is taking all the CREDIT - the new Sherrif in Town, the Town Clerk Mr. John Gakuo.

The consensus is that through his dedication, commitment and hard work the city has been transformed. Kenya News Online Blog praising Gakuo talks of the new look Nairobi "Our capital city has improved in looks and feel over the last two years. The streets have been paved and many roads re-carpeted. Most noticeable are the roads in Eastleigh, Doonholm and South C. There are fewer potholes today and generally, there is a sense of order across town. The town clerk John Gakuo has certainly done his job and should be patted on the back for the effort. The government has invested heavily in infrastructure too. Keep up the good work".

Another blog, Kenyan Entrepreneur asks Who is this guy John Gakuo? It answers itself by saying, he's the Nairobi Town Clerk and every time I scan the Nation newspaper there's somebody praising the good job he is doing.

Recently the Daily Nation 4 January 2007 wrote "Nairobi provides a good example of what can be done in a sustained manner to bring sanity to a council. Getting a strong-willed character like Town Clerk John Gakuo and giving him a free hand to clean the mess in a council has seen the city completely transformed. Most importantly, allowing the systems to work without external interference is the best way to make the council thrive. This is what is required of other urban councils."

The government has also recognised and honoured the good job Gakuo is doing. On 12 December the President Mr Mwai Kibaki awarded him the Moran of the Order of the Burning Spear (MBS) medal for his commitment to service. He said Gakuo's efforts in improving service delivery, corporate governance and the ongoing beautification of the city are commendable. He has ably managed the affairs of the Nairobi City Council with commitment and zeal.

Gakuo is also praised for the transparent and accountable manner he runs the affairs of the city. A look at Nairobi City Website confirms why this man is receiving all the praise. In his message Gakuo gives readers and city residents a summary of what the council under his leadership has done. He says for example, the City of Nairobi is going through a momentous period, where it is faced with the challenge of providing quality services to the fast growing population. However, despite the challenges, the City Council of Nairobi has continued to improve tremendously in service delivery to residents of Nairobi. As most residents would agree, the Council has done quite a lot in restoring the lost glory of Nairobi. But to get the real feel of the happenings you need to read his entire message.

As the Daily Nation has said, other cities and urban council continue to suffer from the effects of mismanagement occasioned by corruption. The problem, however, is not restricted to the councils, numerous other institutions are not performing because of corruption. In a story by Peter Ngare "Wheels of Corruption Ruin Roads" the Daily Nation 4 January 2007, the writer says "rampant corruption in the heavy commercial road transport sub-sector is costing the country billions of shillings in road damage, high cost and loss of lives. Turning a blind eye on overloaded lorries, thanks to fat bribes offered to officers by transport companies."

If one officer like Gakuo can achieve so much, why are others not doing a good job? The answer of course is the calibre and dedication of the officers. Gakuo's success is an eye-opener. Just as we have argued here, the quality of our leaders determines our success or failure. Corrupt leaders cannot bring about success. Leadership both in appointed or elected positions requires clean, dedicated, visionary and hard working people. If we want to succeed we have to choose our leaders carefully and not through tribalism, party lines, friendship, or because someone tells us so. Evaluate what the candidates have done in their previous position no matter how low it was. If a person has not performed as school, church, sports, youth, community, or on other leadership position, he or she should not fool you that they will perform as an MP or councillor. If someone has not performed as an MP there is no way that person will deliver as a President.

In this year of elections our message is Voters be Aware and Vote Wisely.

Witness Protection Law a Good 2007 Start on Corruption

At the close of 2006 the Kenyan President Mr. Mwai Kibaki gave assent to a new law to protect witnesses. The law meant to protect whistle blowers, especially in economic and corruption scandals, is hailed as the right step on the fight against corruption. But, unless the institutions with powers to investigate, prosecute and try corruption related offences do their work, the law will not achieve its objective of fighting corruption.

The Standard summarises key points saying that, “the law provides for the protection of witnesses in criminal cases including whistle blowers by concealing their identities so as to shield them from victimisation. It establishes a witness protection programme, which would be co-ordinated by the Attorney General on behalf of the police and other law enforcement agencies.

Under the programme, a new identity would be established for the witness and the person and his/her family relocated to guarantee their safety. It vests in the High Court the authority to order the appropriate officer to make new entries in the register of births, deaths or marriages.

The law imposes a sentence of seven years to any person convicted of blowing the cover of an individual who is a beneficiary of the programme. Among them include the nature of the risk posed and whether the witness, in view of his/her background or character, would pose a danger to society if shielded.”

In a situation where whistle blowers risked their lives and livelihood to report incidents of corruption in the public sector, the law was overdue. In 1993, a daring former employee of the Central Bank of Kenya, David Sadera Munyakei, provided Opposition MPs with documents detailing how Sh24 billion was siphoned from CBK in a week in 1993 through the bank’s pre-shipment finance scheme. The case of Munyakei, however, is tragic because he later lost his job and died 13 years later a dejected person. In the absence of this law then, Munyakei was exposed and he could not secure another job because his former employer would not give him a letter of recommendation.

The signing of the law is also seen as a victory for human rights organisations that have long campaigned to have whistleblowers protected by law. The matter, however, got a boost when the Commission of Inquiry into the Goldenberg Affair, recommended the enactment of the law in its report handed to the President early 2006.

Despite Munyeki risking his life and job, he died without those responsible for the scandal being held accountable. None of the culprits have been successfully prosecuted in a court of law. It is important to remind our readers that as important this law is in the fight against corruption, much will not be achieved as the public institutions responsible with investigation, prosecution and trial of corruption are not effective in their work.

The law therefore should shifts focus to the Kenya Anti-Corruption Commission (KAAC), the office of Attorney General and the Courts. These institutions have failed Munyeki and Kenyans in general. The rivalry existing between the KAAC and the office of Attorney General has impeded the prosecution of corruption cases. Instead of co-operation, the two institutions compete against each other hurling accusations and counter-accusations against each other. Recently, the public was treated to a drama where the KAAC had forwarded files of investigation and recommendation to prosecute only for the Attorney General to return them to the KAAC for further investigations. If the two co-operated at the investigation stage, the despicable drama would not have occurred.

To resolve the conflict, the powers of the two institutions should be clearly specified and where co-operation is required, it should be spelt out in the law to avoid misunderstandings. The current situation where the KAAC is responsible for investigation and the office of the Attorney General prosecutions is undesirable and creates unnecessary competition. The remuneration of officers in both institutions is also a source of the rivalry. The KAAC officers earn fat salaries while the pay for officers in the office of Attorney General are meagre. At the same time, those in the office of Attorney General feel superior, according to the law, to KAAC officers.

Even the few cases that reach the courts, they tend to prolong eternally. The accused use the loopholes existing in the law to prolong hearing by bring preliminarily applications and objections. Since the courts are already overburdened with workload the proceedings are not expediently dealt with. Recent changes that brought in strict rules and guidelines requiring judges and magistrates to speedily conclude cases do not seem to bear fruits. The rules require that preliminary objections should be dealt with within 45 days, and thereafter the suits to continue uninterrupted, are not followed by the courts remarked the Minister for Justice and Constitutional Affairs Ms Martha Karua. Notwithstanding the establishment of Special Courts in 2003 to try corruption cases, the delay in the cases is still inordinate.

The courts are in desparation because the human right objections used as delaying tactics cannot just be wished away. A line between individual rights and public interest in speedy conclusion of the cases has to be drawn. The duty to do so lies on the courts and they cannot delegate it.

The fight against corruption is not easy and the prosecution of corruption may not lead to fast and desirable results. Supplementary methods for resolving corruption are required. Karua has suggested a change of attitude and asked the public to join in the fight against graft. She said, "winning the war on corruption is not about the body count of how many people are in jail. What is important is to secure tomorrow and the future as you deal with the past.”

We support Karua’s assertion that change of heart and public participation are the key to eradication of corruption. Although there are many ways to achieve this, we think that education of the voters so as to reject corrupt leaders is the basis of the change of attitude and enlisting public participation.