Demystifying ODM

I have always wanted to write a piece debunking ODM, one of the main protagonists in the Kenyan political crisis. There is a perception that ODM represents the aspiration of the oppressed masses while its antagonist PNU represents the oppressive State elite and apparatus. Nothing is far from the truth. My frustration is that ODM has camouflaged its anti-masses agenda through leftist and popular rhetoric. Consequently, an exposure of the different elements and interests in ODM is necessary if one is to understand the true nature of the crisis facing the country. A solution which is not informed by a clear understanding of the protagonists will only lead to bungled results.

Luckily, I do not have to write that piece myself because Mukoma wa Ngugi in her article “Understanding the Kenyan Opposition” has just done that. Ngugi’s analysis is very instructive and necessary reading for all who seem to give their advice on the way forward in Kenya. It is especially apt for the international community who seem not to understand what is playing out in Kenya. ODM like its counterpart the PNU is a gathering of pretenders, leftist activists, war-lords, and populists.

I strongly feel that any solution that does not hinge on advancing Kenya’s democratic and rule of law tradition as well as diversity and cohesiveness will play into the hands of these pretenders.

Read Mukoma wa Ngugi’s article here:

Kenyans were duped in the 2005 Constitutional Referendum!

(This is a longer version of an article published in "Business Daily Africa", Nairobi on 8 February 2008, under the title "Democracy comes in steps not a leap".)

Could a ‘Yes Win’ in the 2005 Referendum have saved Kenya from violence, killings and mayhem? I know that this may be an unorthodox question to ask currently but in times of crisis one needs to take the less travelled road in search for answers. Both the proponents and opponents of the 2005 draft constitution (Wako draft) agreed that it was not 100 per cent perfect. They conceded that there were some contentious issues that required to be worked out. The estimates were that the draft was 80 per cent good or better than the current constitution. But instead of focusing on what united both sides, the divisive 20 per cent became the focal point. The result was the rejection of the draft and a stalemate.

Since then, political life in Kenya has been characterised by this stalemate and the current standoff is its culmination. The confrontation has reached its apex and a climb down by all parties is necessary.

I think that there are lessons to aid them from the 2005 referendum.

The first lesson is that there are no perfect constitutions and a perfect constitution may not always work in practice. Constitutions are shaped by political and social-economic factors of the time. A perfect constitution remains an ideal and utopia to be achieved. The 2002 draft constitution (Bomas draft) is such an ideal. The referendum (Wako) draft was a major step to the ideal. It resonates with the saying that ‘if you want to land on the moon aim at the stars’.

The second lesson is that democracy is incremental. If in 1992 Kenyans had rejected the amendment to the constitution to reintroduce multiparty politics the democratic opening in the society then could not have been achieved. Similarly, if the 1997 inter-parties compromise had not been embraced by both sides the success of 2002 election could not have been possible. These were not perfect solutions but they advanced democracy, democratic institutions and society in general. In fact, the past five years was a period that the country enjoyed most freedoms in the history of the nation’s independence.

The rejection of the 2005 draft constitution denied the society and democracy an opportunity to advance. It rejected a Bill of Rights which was far superior to the rights and freedoms in protected in the current constitution.

More significantly, the draft constitution contained advanced provisions on matters core to the current political crisis and which could have steered the country out of the impasse. These provisions were similar if not verbatim to the Boma’s draft. I draw attention to a few key provisions below.

The Wako draft contains an important provision on a fair election Article 101(e). According to the provision a fair election means:-
1) free from violence, intimidation, improper influence and corruption,
2) conducted by an independent body,
3) administered in an impartial, neutral, transparent, accurate, efficient and accountable manner.
The provision would have been crucial in determining whether the 2007 election was fair and free.

The independent body referred to above is the electoral commission. Article 109 of the Wako draft establishes the electoral and boundaries commission and stipulates its functions, duties and powers among them the efficient conduct of elections and referenda. Under Article 273, the composition of constitutional commissions, which the electoral and boundaries commission is, members are to be appointed by the president with approval of parliament. This provision reduced the powers of the president as is contained in the current law where the appointment of the members is the sole prerogative of the president. Under the Wako draft constitutional commission are independent and not subject to direction and control by any person or authority and shall be impartial and perform their functions without fear, favour or prejudice.

The judiciary has come under a ferocious criticism from the opposition as a Kibaki instrument, stacked with his own political appointees. The current constitution gives the president the exclusive powers to appoint the chief justice. As regards the judges the president appoints them under recommendation of the judicial service commission. As such, the president has the final say in the appointment. But whether the judges are under his direction is another question as they enjoy tenure of office which limits the powers of the president to sack them. Under the Wako draft, the president appoints the judges under the advice of the judicial service commission and the approval of the parliament. In this arrangement, the power to appoint the judges is shared between the president and the parliament. Judges appointed under this procedure are deemed impartial and independent because they are not direct appointees of the executive. It is probable that if the Wako draft had been approved, the lack of confidence in the judiciary could not have arisen and the election dispute could have been referred to the court for arbitration. The Wako draft is similar to the Boma’s Draft on this issue.

The swift swearing in of the president after being declared the winner of the 2007 election by the electoral commission was criticised although it was not illegal under the current laws. The Wako draft, however, had a provision that could have cured the anomaly by prescribing an orderly transition after the election. Under Article 151 of the Wako draft on assumption of office of president, the president assumes office a) on the first Tuesday following the twenty one days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission; or b) within seven days of the determination by the Supreme Court of the election petition filed under Article 150. Article 150 provides the procedure to follow in filing a petition objecting to the validity of election of the president-elect. The petition shall be filed within seven days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission. The Supreme Court shall, within seven days of the filing, determine the petition.

The provisions on transition after the election stipulated in the Wako draft could have avoided the clumsy manner in which the swearing in of the president-elect was done. The draft clearly stipulates the time frame of events leading to assumption of office by the president-elect which allows for orderly transition and for disposing off any legal challenge to the validity of his or her election. The Wako draft provision was far superior to the Boma’s draft that did not give timeframe to events leading to assumption of office by the president-elect. The Boma’s draft states that the person elect assumes the office of the president ‘… on the date when the term of office of the incumbent President ends’. The provision is vague and does not take into consideration any legal challenge that may be mounted.

Finally, Wako draft and Boma’s draft had similar provisions on the procedure at presidential election in Article 149 and Article 157 respectively. These provisions lay down the procedure in case a re-run of presidential election was necessary. Article 149 (4) states that ‘the candidate for President who receives more than fifty per cent of all the votes cast in the election and who, in addition, receives a minimum of twenty-five per cent of the votes cast in more than half of the districts shall be declared elected as the President.’ Article 149 (4) says further that, If a candidate is not elected, a fresh election shall be held within twenty-one days of the previous election and in that fresh election, the only candidates shall be – (a) the candidate who received the greatest number of votes; and (b) the candidate who received the second greatest number of votes, and the candidate who receives the greater number of votes shall be declared elected as President.

It is abundantly clear that this provision was a saving clause in case no candidate garnered the required fifty per cent votes. In the current stalemate both Kibaki and Odinga did not meet this required and a re-run would have been the option rather than the current legal vacuum.

In short, there were many positive democratic victories that were lost when the baby was thrown out with the bath water in the 2005 referendum. Political expediency rather than national interests dictated the choices fed to the populace by the political elite and civil society. Simply put Kenyans were duped in the 2007 referendum that the Wako draft constitution was no good and should be rejected. That decision has come to haunt the nation with dreadful consequences. In hindsight, Kenyans should approach the current dialogue with an open mind and should not reject major victories because the whole battle is not won.

Preserve the energy for future victories not war and mayhem.

Related Views:

NJOKI NDUNGU'S WITNESS SUBMISSION TO US CONGRESS

"Further, politicking and posturing on narrow agendas, such as the contentious MOU[4], rather than focusing on national interest, led to the rejection by oblivious Kenyans of the new draft Constitution in 2005, who threw away its proposed new structures for power sharing between a President and Prime Minister, the reduction of presidential powers, increased parliamentary vetting of public appointments and institutions to deal with the land question, devolution of resources, and addressing the inequalities of the marginalized.

If that Constitution was in place, the tragedy of the last few weeks would have been avoided."

Read full Submission here

Kenya: The Way Forward! Is this It?

Below is an extract of a full report by African Policy Institute on the Kenyan election and ensuing mayhem and violence: Breaking Kenya’s Impasse: Chaos or Courts? It confirms what this blog (below) has advocated as the only viable way out of the political and democratic impasse in the country.

Here is their conclusion. But you can get the full text of the report here.

Conclusion
Kenya is facing perhaps the most profound test of its stability and institutions as it moves into its fifth election cycle. The 2007 election has ended in a dispute. The role of international mediators and wellwishers like Desmond Tutu, John Kufor and Kofi Annan who have played a pivotal role in trying to break the impasse and normalize the situation, but the crisis persists. But while their role is a welcome gesture of good will to the people of Kenya, overstretching mediation may permanently erode the credibility of Kenya’s established courts and other arbitration institutions which Kenya’s people have painfully nurtured for the last 44 years. What has come to be called the Kenyan crisis is a perfectly normal situation that from time to time confronts in democratic systems. It should never be likened to ‘political crises’ in other parts of Africa like Somalia or Darfur-although Kenya may get there if this is not addressed expediently.

Rather, what Kenya is witnessing is an election dispute like the one that engulfed America in 2000 when the Democratic and Republican party candidates disagreed on the process and results. While elders like Jimmy Carter and James Baker were called by both sides to cool tempers, all parties to the dispute were agreed that the court system—with all its faults, including partisan and ideological interests--was the way to go. Kenya will have many more disputed elections 200 years today. No matter how compromised the court system may be, it is still the only credible and sustainable arbitration mechanisms open to, and ever invested by, civilized societies.

Kenya needs the courts to suggest the way forward, not mediators to broker transient deals and power pacts among powerful elites. Certainly, chaos in all its guises is never the way out. Kenya must now return to reason. The opposition should stop all its mass action because it can only produce another disputed, and possibly dictatorial, regime. The government should guarantee that the dispute will be dealt with within reasonable time—no more than three months. It might be necessary to call in judges from other commonwealth countries to provide the necessary neutrality and restore the confidence of the parties to the dispute in the courts. Finally, all parties must be prepared to honor the final verdict of the courts: a recount, a re-run, or a victory of either of the parties.

The role of the court should be supported by national mediators and the media who have to do the spade work in reconciling communities torn by violent conflict and calming the nation. The national healing process must of necessity involve the resuscitation of Kenya’s multi-ethnic vision based on civic rather than ethnic citizenship, sanctity of law and public order and the courts as the supreme arbiter in all disputes, including election ones.

Full text report here!

A Bleeding Kenya: Why did this not happen sooner?

Since the atrocities of ethnic violence, mayhem and senseless killings befell our beloved country both in the run up to the December election and soon after the declarations of the flawed presidential election result, I have been following commentaries and opinions in print and electronic media. Despite many opinions and explanations as to the genesis of the quandary the nation found itself in the aftermath of the election, none seems to explicate the pertinent issue. Why did this not happen sooner? Calorine Elkins asked this question in her opinion “Ethnic woes a legacy of colonialists’ power” the Standard 7 January 2008. Unfortunately, even Elkins could not answer the question. Her colonialist hypothesis did not explain why Kenya has remained an island or oasis of peace in an armed conflict turbulent region. In order to understand the current political impasse and the violence and mayhem, it is imperative to answer this question adequately.

First let me characterise the current political stand off in the country in terms of “two centres of political power”. The antagonists of the two centres of power are Mwai Kibaki and Raila Odinga supported by their (ethnic) political bases. The ended election was supposed to decide the rivalry between the two centres, which strongly emerged after the 2002 elections and continued to date, but it failed and instead bequeathed two equally strong centres. The country is therefore spilt in the middle with both opponents enjoying at least 4 million strong votes support. The stand off has trashed the façade of peace and tranquillity hitherto existing in the country. How therefore can this phenomenon be understood? Why did peace and tranquillity in the country disappear so suddenly? To understand this, interrogation of how the past regimes maintained the relative peace and stability is needed.

The answer to the question may recline to how the first president Jomo Kenyatta and his successor Daniel Arap Moi dealt with alternative centres of power during their reigns. Both never allowed alternative centres of power to flourish and blossom. They vanquished them in the bud. Various methods were used such as political persuasion (KADU 1964), snap elections when their enemies were weakest (little election 1966 and snap election 1983), detention without trial, imprisonment under trumped up charges, brutal force and assassinations (Tom Mboya, J. M. Kariuki and Robert Ouko). Most of these techniques were undemocratic, illegal and a travesty of justice and human rights. But they sustained these regimes in power and the ‘apparent’ peace and tranquillity in the country during their reign. Their actions must, however, be understood in their historical and political context namely one-party state either de jure or de facto. Under those circumstances, the two presidents wielded absolute political power which they used to vanquish any challenge. But what is important to note also is that they did not allow any competitive elections except when their adversary was at his weakest. The last constitutional terms of Moi are the exception but even during the 1992 and 1997 elections the opposition was divided and could not pose a strong centre of power to his presidency. In 2002, Moi did not contest the election because he was constitutionally barred. On the other hand, the opposition managed to unite and fathom out an alternative centre of power which went ahead to vanquish Uhuru Kenyatta, Moi’s appointed follower, and KANU dominance.

After 2002 a new centre of power emerged and Kibaki was not able to snap it in the bud. This explains the constitutional impasse and parliamentary stalemate (though through government of national unity Kibaki was able to circumvent through the deadlock) and the current stand off where Kibaki met a powerful adversary at the election something his predecessor never permitted. Kibaki did not avail himself the illegal measures used by his predecessors perhaps because of the multiparty democracy and human rights context he operated in.

So what is the way forward?

In a dictatorship, peace and tranquillity is maintained through brutal force and unlawful means. In a democracy, it is maintained through democratic institutions. The choice facing the country now is between dictatorship or democracy. If Kenya is a democracy, the solution to the impasse must be informed by the country’s democratic, political and legal institutions and not violence, killings and political mayhem.

After the Election Commission of Kenya declared Kibaki the ‘winner’ of the presidential election, no matter how flawed the elections were, the stability of the country rests on its other institutions despite their perceived shortcomings. They must be allowed to shoulder the responsibility they are entrusted with by the law. They must be tested, as perfect institutions do not exist. Strong institutions are created and tempered by crisis. To trash what there is aside is to create a dangerous precedent where any politician and political centre will choose the institutions to be subjected to and which to ignore and discredit.

Whereas foreign mediation may appear an easy way out of the current political crisis, ultimately it is the national institutions that will guarantee rule of law and democracy. Foreign mediation if resulted to must work within the framework of the existing national institutions without circumventing them. At the same time, any party with the interest of the country at heart must permit the national institutions to resolve the political deadlock so that the country and its seemingly bungled democracy can emerge stronger. To embrace democracy is to accept its shortcomings but also to learn from them so as to advance to a higher level of democracy.

Related Views:

Why court is the best solution in poll result row.

Strong institutions our only way out.

President Kibaki Tells Voters to Elect Corruption Free Leaders

President Kibaki is the first presidential candidate to appeal directly to voters to elect corruption free leaders in the coming election. He did this during his speech to the nation. We in this blog would like to commend him for his bravely as most politicians keep silent on this issue. We have argued all through that the best way to get rid of corruption is to elect leaders free from corruption, at all levels and especially in the Parliament, and lock-out the corrupt from public office. On his part, the President solemnly promises not to appoint corrupt persons in his cabinet if elected for a second term. This is an assurance the voters need from all the presidential candidates. If this were to happen, and the voters were to elect only clean leaders, corruption would be dealt a devastating blow.

Read the excerpt from Presidential Speech on corruption below.

In the last five years, my Government has made credible progress in the fight against corruption and economic crimes.

We now know that fighting the vice requires more than prosecuting or jailing those who are convicted. It is about changing attitudes, values and ethics of an entire society, and to ensure that the rules and regulations are observed and enforced so that corruption becomes socially costly. It is about ensuring that those who commit crimes pay for their actions, instead of hiding and mobilizing behind their communities.

Indeed, the fight against corruption is about the people of Kenya electing to Parliament and local authorities, men and women of integrity. This is why we have worked so hard to create a legal and institutional framework to ensure that future generations of Kenyans will enjoy prudent and accountable governance.

When you go to the polls on 27th December, I urge you to vote for leaders who are fit for public office and with no record of engaging in corrupt practices.

On my part, I make this specific commitment to you; I will appoint a CLEAN HANDS cabinet, made up of men and women of integrity from among the decent men and women that you will elect.

I shall demand that any minister who comes under reasonable suspicion of engaging in corrupt practices, resigns immediately. They will be reinstated only once the matter has been investigated and their name has been cleared.

I will insist on this provision being enforced in all circumstances. We will have a Clean Hands Government. This is a necessary measure to restore confidence in our politics and uphold the trust that Kenyans place in their Government.

The President have shown the way. He wants clean leaders in the next term. Voters go ahead and give him or the next President of the Republic of Kenya CLEAN HAND LEADERS. Show the corrupt the Red Corruption Card! With your vote you can do Kenya, yourself and posterity a patriotic service.

On 27 December 2007 Remember to VOTE FOR CORRUPTION FREE KENYA!

TUMECHOKA - We are Tired! Kenya Youth Sing!

We predicted that corruption would be a key issue in 2007 election. The youth of Kenya have heeded the call to uproot corruption once for all. The recent party nomination saw Kenyans give many MPs the political red card and underscored the last parliament as a corrupt institution which needed cleansing. Come election on 27 December many more former MPs will fall. The youth of Kenya have at last said TUMECHOKA - We are Tired.

TUMECHOKA (We are Tired!) expresses a rage felt by Kenyan youth at the abuse of power by our leaders and especially the Parliamentarians of the outgoing 9th Parliament. This music video was financed and produced by Kenyan youth and is powerful social commentary. If only the leaders understood rap! Could this be the next Kenyan political anthem? The artists want you to download and play this video (loud!). It’s free and the artists have waived their royalty rights for internet download and radio play. Tell your friends about it – and note the call to youth to use their vote to elect a corruption free leadership for Kenya. We think this may be an idea whose time has come. Enjoy!





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Intro
Sisi sote tumekuja pamoja kusema Na kuskika, hatunyamazi mashida zetu Kama kitambo,
(We have come to speak in one voice, we will not be silenced as before)
A voice against our leaders, ni kura itaongea, pigeni kura pigeni kura pigeni kura..
(Our vote will speak, Vote people Vote! Vote!)
Baken
Nashindwa niajee, kuishi kiwasi wasi nitaongea ki wazi wazi viongozi vikohozi
(Why are we living in fear with leaders who make us sick)
Na niajee, Mtaani tunawika nayeye anacheka straight to the bank,
(Why are we living in ghettos as our leaders laugh straight to the bank)
Mi na hustle ye ana manga bila hata kungangana, kwanini akuhonge baadaye akunyonge
(I have to hustle, he enjoys without labouring, why should he bribe us, later he hangs us)
Kamba shingoni ya kujitia mwenyewe, wanajifanya waelewi kula kuva
(A noose around his neck this time, he thinks he is better than us)
Yote C.D.F na round hi, Shida zetu tunyazmazi.
(This time let us end our problem)

Chorus
Tumechoka na sema tumechoka kufinyiliwa down tunasema tumechoka (tumechoka) x 4
(We are tired of being pressed down - We are Tired! x 4)

Leftie
Mshahara tunampa, na kazi hatuoni, pesa zetu mnakula na bunge mnalala,
(We pay you well but your work is unseen. You eat our money and sleep in Parliament)
Mnasema mko kazi Ndio sisi wenye vipaji, vitambi vinatokea ungedhania Ni kiriba,
(You claim to be hard at work)
Tunafinywa Kwa makini, laini shinda maini maazi kufanyiziwa
(We are oppressed)
Malazi kufinyiliwa, wanadai in the ghetto na nyimnaangalia nimekula huu usongo
(In our homes we are oppressed they say in the ghetto)
Ndio maana ninalia, nakaa hamtawacha kura yangu hamta pata, this time mkicheza tutampiga
(This is why I am crying. No vote for you from me this time.)
hiyo marando, taadhari tafakari Leftie akiwa nare mtakuwa kwenye hatari tunataka maendeleo, hacheni huo ukorofi,
(Watch yourself I am getting impatient. We want development not corruption.)

Chorus
Tumechoka na sema tumechoka kufinyiliwa down tunasema tumechoka (tumechoka) x 4
(We are tired of being pressed down - We are Tired! x 4)

Hawkins
Followed my heart through all the roads into the jungle, seen so much pressure
Told my body, just handle, this is nothing, Compared to what we thought,
Bad governance and leadership is what we fought, dark ages, black pages, rough ages
Men make history but this is to much, I earn all the money but you say I can’t touch, unajiongezea Mshahara nikipinga unanipiga, si protest Kwa Street Ndio maana niko Kwa beat nakuonya roundi hii nakutoa wewe shindwa
(You increase your salary when I protest you have me beaten – I am warning you now this time I will throw you out!)

Chorus (repeat)
(We are tired of being pressed down - We are Tired! x 4)

Jahfarel
Nabado wamesahau tumewapa hii works, Kulounge bila shukrani hatowi pesa zao
(They have forgotten that we are their employers, they are greedy and laze about)
Dem lying dem saying but they just destroying with false prophesies of a better tomorrow,
(They are false prophets and liars)
Na hii wakati, Ni Kura itaongea pigeni Kura pigeni Kura
(This is the time. Our vote will speak. Vote! Vote!)

Ending Chorus
(We are tired of being pressed down - We are Tired! x 4)

Parliament Kills the Only Hope for Fighting Corruption!

The fight against corruption is tough. Many vested interests attempt to thwart the process at every stage exist, especially during an election year where political powers and individuals try to create alliances with the looters. But when the Parliament kills the only hope for fighting corruption, as it did on 12 September 2007, then the country has lost direction.

By extending blanket amnesty to economic crimes perpetrated prior to 2003 and amending some parts of the legislation establishing the Kenya Anti-corruption Commission (KACC), which gives it powers to investigate those crimes, the parliament dealt a devastating blow to on going and future investigations of Goldenberg, Anglo-leasing and land grabbing cases by the KACC. These corruption scandals involve hundred billions of Kenya shilling stashed in foreign banks abroad. This is public money that could have been used for economic development and alleviating poverty which is prevalent in the country.

Earlier in this blog we had warned that reducing the KACC investigatory powers will be detrimental to the fight against corruption. The KACC has its flaws as regards the fight against corruption as it does not seem to move with the required speed to investigate, apprehend and prosecute those involved in these serious economic crimes. But it is the only body currently equipped and capable to deal with grand corruption investigations. Leaving the matter in the hands of overburdened police to investigate is clear signal that parliament is not interested in pursuing corruption cases.

Let us hope that the President will decline to assent this law and therefore restore the powers of the KACC. The President is the last bastion of hope that the war against corruption will continue as he is on record for having declared zero tolerance to corruption. Parliament, which is composed of some members who are seriously implicated in the grand economic theft, had its own motivation for granting the looters amnesty. The President once again should stand against the Parliament as he did with the Media law.

Lastly but not least, the voters should take cue from parliament and make sure that these selfish lot does not return to the august house. This parliament has tested elector’s patience to the extreme with its egotistic legislations and impunity to public and national interest. They have increased their salaries and other pecks without regard to the poverty and financial hardships faced by majority of the population. To nail it all, they have shown gross contempt to the fight against corruption by granting themselves amnesty. The time to show the corrupt lawmakers the door is now.

KACC Has Made Remarkable Achievements LSK New Boss!

The new charman of Law Society of Kenya (LSK), Mr Okong’o Omogeni, has commended the Kenya Anticoruption Commission achievements in dealing with corruption. He said that in the former regime, former powerful ministers, permanent secretaries and even the Central Bank governors could not face the law.

Currently, there are a number of cases pending in courts against highly placed personalities among them permanent secretaries, a Central Bank of Kenya (CBK) governor and deputy governors, a former security intelligence boss, directors and managers of government corporation among others. In addition, on 29 March 2007, five senior civil servants were arraigned in court by the KACC. They include former Central Bank of Kenya deputy governor Eliphaz Riungu, former Commissioner of mines Collins Owayo, former CBK chief dealers Michael Wanjihia and Job Kilach and former permanent secretary Finance Wilfred Koinange.

Coming from the head of the lawyers’ organisation in Kenya, the praise of KACC is really sweet music as the commission has been blamed for incompetence. Recognition of the work done by KACC boosts its image as it has been in the receiving end of criticism especially from opposition politicians and civil society for the most time of its short life. In fact, the LSK boss would like the powers of the KACC to be extended to include prosecution of cases it investigates in order to forestall conflict with the powers of the Attorney General who is responsible for prosecutions. In the past, the KACC has investigated cases but on recommendation to prosecute to the AG the latter has return the files to the KACC requiring further investigation.

In order for the KACC to effectively do its work, it requires independence from other organs of state including the AG office. KACC should be given a free hand to investigate and prosecute cases. The current delay in prosecution of corruption cases can rightly be attributed to the allocation of powers to investigate to KACC and the prosecution powers to the AG. In this blog we have clearly supported the work done by the KACC and called for non-interference by other governance organs especially politicians. We believe strong and effective institution cannot flourish if their work is muddled with.

KACC Launches Anonymous Reporting System

In its accelerated efforts to curb corruption and implement the Whistle Blower Protection Act, the Kenya Anticorruption Commission (KACC) has launched an anonymous reporting system. The system uses the worldwide recognised whistle blower system by the Business Keeper Monitoring System (BKMS®). The implementation of the system is a big plus for the war against corruption.

The system guarantees potential whistle blowers anonymity and information confidentiality. The identity of the whistle blower is hidden and the report made remains confidential as it can only be accessed by KACC officials. The system further assures the whistle blower anonymous dialogue with KACC officials. This system is in use at the state office of criminal investigations in Germany and in 29 countries for the German Telekom among other organizations.

The KACC in its website gives guidance on making a corruption report. There are many other possible ways of making a report such as doing so in person, by telephone (Hot line) and/or fax, by mail, and by email report@integrity.go.ke. But the anonymous system is a good improvement and may attract many persons who may have shied before from making a report.
In this blog we support all efforts that make the war against corruption realisable.

Powerful Individuals Involved in Corruption want KACC Powers Curtailed!

An intense battle aimed at curtailing the powers of the Kenya Antcorruption Commission is going on between the leader of the Parliamentary Committee on Administration of Justice and Legal Affairs Hon. Paul Muite and the Commission's Director Justice Aaron Ringera. Muite wants the Anti-Corruption and Economic Crimes Act (ACECA) of 2003, which established the Commission amended. Muite is calling for the Parliament, to specifically amend Sections 26, 27 and 28 of the ACECA which are KACC’s main operational laws that enables it to make anyone declare their wealth and also explain how they acquired it. Under these sections the KACC can also force anyone it suspects to be corrupt to provide written statements of their property and obtain records and information to enable criminal investigation to be carried out on the suspected individual.

Justice Aaron Ringera, however, accuses Parliament of plotting to stall the functions and operations of the commission by effecting the said changes. Ringera also maintains that the proposed amendments are a conspiracy by powerful individuals implicated in corruption to block KACC from investigating them. Ringera has also faulted Kenyan laws which he said have gaps that must be improved to make the work of his Commission easier.

Muite has represented individuals affected by these powers of the Commission. Former Cabinet Minister Chris Murungaru was represented by Muite after he was fired following his alleged involvement in Anglo Leasing scandal two years ago and the KACC using these powers required him to explain how he acquired his enormous wealth. Paul Muite termed the powerful sections as unconstitutional and illegal saying they violated the constitutional right to remain silent before one is proven otherwise.

Ringera and the Commission have received support from Francis Atwoli, the Secretary - General of the Central Organisation of Trade Unions (COTU) who also sits in the KACC Board. Atwoli threatens to resign from his position if the amendments are carried out. He urged Parliament not to interfere with the work of KACC. He said, whereas the supremacy of the legislature should be upheld, the same should not be used by individuals involved in corruption and other malpractice to curtail the work and powers of KACC.

Whether the powers accorded the KACC are unconstitutional and interfere with individual right to silence is an interpretation issue and should be addressed by the courts. Muite should not use his influence as the leader of the Parliamentary Committee on Administration of Justice and Legal Affairs to unnecessarily undermine the work and independence of the KACC. He should let the courts establish the necessary jurisprudence in the area. Muite should use his role as defence lawyer to help the courts to establish this jurisprudence and not circumvent the process by rushing to Parliament.

In this Blog we support the work of the KACC and abhor the interference from politicians who would like to see its operations and independence curtailed. We believe democratic institutions take time to develop and operate effectively and therefore too much interference only ends at stifling their growth. Constructive criticism is welcome but one should not hide behind such criticism to destroy the very essence the institutions are built on.

See Also: Move to trim KACC powers is betrayal
National Convention Executive Council (NCEC)is convinced that the current clamour to change the law establishing the Commission is hell bent to protect the powerful politicians incriminated in high level corruption from investigation and prosecution in an election year. Read more ...

Mars Kenya Defends KACC

"Whereas Parliament cannot be bound, and is free to change its mind on provisions of law, we must ask the pointed question what mischief will Mr. Muite’s amendments cure? What public interest is he securing? Or is it a perhaps not a public interest he is concerned with, but rather a private interest? " Read more ...

Corruption Stigma Comes Haunting ODM-Kenya on London Trip!

Corruption stigma came haunting at least two ODM-Kenya presidential candidates during the failed London trip, planned for the candidates. The British government was not amused by William Ruto visa application to travel to London and going by the reports in Kenya dailies, they refused to grant him a visa. Musila Mudavadi might have foreseen the fate that befell his counterpart Ruto and cleverly declined to be part of the group travelling to London. In this instance, the British government demonstrated its distaste for corruption irrespective which quarter it comes from – the government or the opposition. But has the Kenyans and their leaders inculcated such a dislike for corruption? The few instances below show that this is not the case. We glorify corruption when it involves the leaders, especially those in the opposition.

Firstly, it was disturbing to see the insensitivity by the ODM presidential candidates who had the audacity to claim that they failed to undertake the trip in support of Ruto who was denied a visa. Either this portrays their naivety or the lip service they pay to the war on corruption. At least there is no greatness in showing solidarity with any form of corruption either alleged or proved. They even tried to allege that the Ministry of Justice had a hand in it by leaking a list to the British Embassy in Kenya. The same blame game as always, no taking responsibility. But the Minister of Justice Martha Karua, in her character, could not take this and she responded “if I had done it the list would have been longer”.

Secondly, Kenyans seem to accept “the solidarity with Ruto” explanation by the ODM candidates without any critical reflection. They did not question why leaders would support Ruto or another person on corruption claims. Shouldn’t Kenyans have expected to hear from the leaders “let everyone carry their own cross”? Remember the Murungaru case how he was disowned by all. Are Kenyans so gullible to allow their leaders to easily cheat them on this one?

Thirdly, the media also is guilty of insensitivity to corruption when it does not involve the government. Unlike the critical media we witness, when corruption is from the government quarters – just remember the Murungaru case again – this time round the media conspired to remain silent. Is it that corruption is only serious or distasteful when it involves the government of the day and not those in the yesterdays government? Why double moral standards on the war against corruption by the media?

Fourthly, Raila Odinga tried to explain Rutos corruption charges away to his London audience by invoking rule of law. That is a clever way to handle the issue. But the hypocrisy is clear when the same leader does not give his opponents the same benefit of “innocent until proved guilty”. Rule of law is a sword and it cuts both ways - for Rutos and Murungarus. Again why double moral standards?

Fifthly, even the defender of human rights, Maina Kiai, has not seen it necessary to tell the leaders off, as is his character when the government is involved. The solidarity shown by these leaders is so distasteful to the war against corruption that Maina Kiai or the National Commission for Human Rights s silence is abominable. Again why double moral standards?

As we have stated in this blog, the fight against corruption cannot be won without a clear dislike for it. To fight corruption effectively, we should not condone it at all. It is necessary to reject leaders involved in corruption whether alleged or proved. We should borrow a leaf from the British government and show our distaste for corruption by locking out those with corruption tags from public and elective offices and not support them. In the case above, the society failed to tell Ruto and his counterparts that corruption is not acceptable in the highest office or any other office in the country. In fact, there is a need for a law that clearly bars and bans anyone involved in corruption from running for any public and elective office until the corruption allegations or charges are cleared. The call for minimum reforms should include such a provision or law.

Let Us Consitently Show Our Dislike for Corruption!

I read the story in the Daily Nation 10 March 2007 by BEATRICE OFWONA by the title "Let us all act now for a better future" with keen interest. The story touched on key issues which we can do to fight decadence in our society. But the one aspect that attracted my attention most is the one on corruption for obvious reason that it resonates with the interest of this blog. She wrote:

"A HUMAN RIGHTS ACTIVIST HAS ADVISED US TO START thinking seriously about not letting corrupt people into our churches and other places of worship; of treating such people whose names have been linked to corrupt deals like the pariahs that they are; of letting them and their families suffer the brunt of our scorn and maybe, just maybe, we might dissuade others of corrupt inclination from engaging in such activities."

This approach to corruption is in line with what this blog advocates. We believe that the fight against corruption can be totally won if citizens show their dislike towards it. The example by Ofwona should be extended to all facets of life not only churches, just as we have called for locking out corrupt politicians from elective and other public offices. The dislike for corruption should be extended to our schools, public offices, hospitals, police force, judiciary, parliament, government, universities, and so on. It is only through a concerted dislike and action against corruption and the corrupt that we can redeem our society from this deadly cancer.

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.

Corruption Expected to Dominate News in 2007 Again

As 2006 fades away and 2007 ushers in, the war against corruption in Kenya is still in abeyance. Has the war against corruption been lost? That is the question many will be asking themselves. Since 2007 is an election year, allegations and counter-accusations on corruption are expected to dominate the media and political arena again. As we review the events that shaped the war against corruption in 2006 we expect 2007 will be no different.

As a summary, the year 2006 was characterised by high voltage political rhetoric but very little action to eradicate corruption. Opposition politicians were as usual the most outspoken condemning the government for inaction and spread of corruption among its ranks. Angloleasing scandal was the main corruption baggage the government could not get rid off and it gave President Kibaki’s government the most unwanted label of corruption. The government did not hesitate on its part to throw a few salvos to the opposition politicians reminding them that most of them were suspect in corruption scandals of Moi government especially the Goldenberg scandal and even the new Angloleasing scandal. This culminated with the publishing of the Anglo-Leasing and Kitale Prison Land lists of shame by the government.

The year 2006, however, started with the damning Githongo Angloleasing report, made public internationally in the late 2005 by the author. The report immediately claimed its first casualties when two ministers in the Kibaki government were forced to resign. Kenyan Finance Minister David Mwiraria and the Minister for Justice and Constitutional affairs Kiraitu Mirungi resigned after being linked to the corruption scandal. A third Minister David Murungaru, Minister for Security had been dropped from Kibaki’s government reshuffle after the ill-fated constitutional referendum vote in November 2005. The Anglo Leasing scandal also triggered the suspension of four senior civil servants. But the Vice President who was also implicated refused to budge to resignation calls claiming that he was innocent. Kiraitu has since been reinstated, as the Minister for Energy, after the allegations against him could not be supported by evidence.

The Githogo report also saw members of two public institutions, the Parliamentary Accounts Committee (PAC) led by the Official Leader of the opposition Uhuru Kenyatta and the Kenya Anti-Corruption Commission (KACC) led by the Director Justice Aaron Ringera travel to London to interview the author. The PAC report recommended prosecution of those involved. The KACC proposed charges against some of the culprits but the Attorney General returned the files to KACC for lack of adequate investigation. The year 2006 was also characterised by counter-accusations between the KACC and Attorney Generals office which only contributed to slowing down the resolve to fight corruption.

In the ending year, the investigation by an Inquiry Commission on the longest financial scandal in Kenya, the Goldenberg was handed to the government. The report claimed that the former President Daniel arap Moi must have been aware of a scam which cost some $600m. It also recommended the prosecution of Education Minister George Saitoti – the then finance minister under Mr Moi among other personalities. Saitoti was relieved his ministerial job to pave way for prosecution but he moved very fast to the court and had the prosecution against him dismissed. He has since bee reinstated to the same position an action. The reinstatement has been highly condemned national and internationally. Whether Kibaki's action deserves condemnation, when the court has given its decision, depends on the weight we put on our democratic institutions.

One institution that has been on the spotlight in 2006 is the KACC. It has been accused of impartiality, incompetence and laxity. As a consequence, some opposition leaders had threatened to demonstrate to the Directors office and remove him from office. KACC has countered these accusations by referring to cases, that it has dealt with in its website, which was not available at the time of this writing. A glimpse of site reveals a lot of activities that are not brought to the public awareness by the media or politicians.

The courts have handled a number of court cases against corrupt officials but this has not resonated well with the public. High profile candidates seem to miss from the list of the accused. Kenyans love high drama and therefore they would like to see a couple of Ministers in the dock and sentenced to prison. Whether this will happen in 2007 we wait to see. But the electorate should always remember that they have the power to hire and fire their elected leaders. Use your vote to get rid of corrupt leaders.

We take this opportunity to thank our readers for your confidence in us. We promise to continue giving you incisive commentaries and analysis on corruption the coming year.


WE WISH OUR READERS A HAPPY NEW YEAR - FREE OF CORRUPTION.

Kenyan MPs' Hefty Pay Increases is an Act of Corruption!

Corruption is a serious indictment to level against our "honourable" MPs especially when the power to award themselves pay hikes is endowed on them by law. The recent pay hike that has aroused public hue and cry was purportedly made under the Statute Bill (Miscellaneous Amendment Act) 2006. It is important therefore to define what we mean by corruption here, so as to place their actions on a proper perspective.

In general life we associate corruption with bribery, kickbacks, or misappropriation of public funds and property. Merriam-Webster online dictionary defines corruption as i) impairment of integrity, virtue, or moral principle ii) inducement to wrong by improper or unlawful means, iii) a departure from the original or from what is pure correct. To what extend can we therefore say that MPs' actions fall within the parameters of this definition?

The first order of business by the current Kenyan Parliament, which was elected on 30 December 2002, was to increase their pay. They voted themselves huge increases in allowances and travelling expenses. Currently, an MP earns a gross salary of over Ksh 800,000. Recently they increased the salary of the President by 300% from Ksh 700,000 to Ksh 3,200,000. At the same time the MPs proposed for themselves a total of Ksh 1,500,000 each as a handshake at the end of the life of the current parliament. The President, however, as a result of pressure from the public has rejected the high pay accorded to him.

It is no doubt that Kenyan MPs, and Ministers are the highest paid politicians in the world. A comparison made with pay of leaders in most developed countries like USA and Britain and some African countries such as South Africa, Nigeria, Tanzania and Uganda by International Jurist Commission - Kenya leaves no doubt to the veracity of this assertion. Furthermore, the high pay compares poorly with the low per capita economic figures in Kenya and the poor performance of the MPs in the parliament. The parliament suffers from chronic lack of quorum, as most MPs do not regularly attend parliamentary sessions. According to the Guardian in 2004 MPs spent 57 days in parliament. Last year their workload was even smaller and only five pieces of legislation were passed. The huge salary awards also compare grimly with the dismal pay Kenyans get in general and the fact that most of the population lives on less than a one US dollar per day.

A recent public survey conducted in Kenya sponsored by the government cited the Parliament as the most corrupt institution. The survey conclusion was based on the general public perception that the hefty increases in pay and emoluments MPs have rewarded themselves in the recent years were unjustified and a blatant abuse of office. The Kenya Times newspaper continues to say that in the case of MPs, the report says, the result could also have been based on the simple expression of general displeasure with the National Assembly or individual MPs based on particular examples of corruption in individual terms. In addition the report said that though MPs are rarely in bribery-demand situations, on the contrary they are alleged to initiate them at least during election campaigns. Others rate the lawmakers as corrupt due to the manner in which they widely buy their way into the National Assembly, the report says. Other factors such as salary levels and the motivation of personnel, the report says, may also have contributed to their lower rankings compared to those of government institutions.

The fact that one is authorised by law to perform certain duties and actions does not imply that the law empowers misuse of that power. What the MPs have done with impunity is to misuse the power granted to them (i.e. to reasonably assess and reward themselves proper pay). They have increased their pay without due regard to the general level of salaries paid to ordinary workers (it does not matter that CEOs and other senior civil servants are paid more, this are not ordinary workers). They have not also taken consideration of the general performance of the economy as well as regard of what other MPs and political leaders earn in the world. Their actions are therefore improper and unlawful. They are also an ethical because they go contrary to the expectation of the majority of the people as the survey above has indicated. The high pay increase is as such a departure from the original and from what is pure correct (reasonable assessment). Furthermore, the high pecks increase is a manifestation of pure greed, which has impaired MPs integrity, virtue and moral principles. It amounts to pure looting and plunder of public resources and economy.

It is not the objective of this Blog to condemn all MPs wholesale. It is, however, the duty of the electorate to thoroughly scrutinise every MP and to ensure that those who fail to pass the test are voted out during the next general election. The electorate has also the sacred duty to salvage the image of the Parliament from a corrupt house to a house of integrity by kicking out the rotten elements. As the ICJ-Kenya has asked "are Kenyans therefore willing to elect leaders who will reduce pay perks for MPs and other senior public servants to a level that our economy can afford?" Moreover, this Blog asks are Kenyans willing to elect persons of integrity who will serve public interest and not MPs’ personal interests first?

Related views
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Vote All MPs Out
Cleric Fury over Kibakis Pay
Kenya Cannot Afford Hefty Salaries for Public Officials
Kenya's Costly Politics - The Guardian

Nobel Peace Price Winner 2006: Elect Clean Leaders to Public Office

Professor Muhamed Yunus the Nobel Peace Price winner 2006 said in an enclusive interview with CNN Jonthan Mann after the award of the Nobel Peace Medal in Oslo 10 December 2006 that to fight corruption it is necessary to elect clean leaders to public office. He added that electing corrupt leaders worsens the incident of corruption as these leaders will grab more and more at the expense of the people and national interest. It is very important therefore to educate the electorate on how to elect clean leaders and lock out the corrupt. The founder of micro-credit Grameen Bank (Village Bank), which gives small loans to the poor especially women, said that he is dedicating his efforts on education of the electorate rather than running for the office himself.

The Noble Peace Laurent's view on fighting corruption supports the perspective advanced in this blog that the most effective way to eliminate corruption in society is to lock out corrupt leaders from public office during elections. In this way the electorate will be sending clear message to those who hold public offices that corruption does not pay and will not be tolerated.

This blog salutes and congratulates Professor Muhamed Yunus and Grameen Bank for the award of this years Nobel Peace Price and his efforts to fight poverty in his country and the world over as the concept of micro-credit is duplicated in other countries.