Details have now emerged on how the Ethics and Anti-Corruption Commission (EACC) is held hostage by a small clique of Jubilee politicians, lawyers and officials linked to the Executive.
This is in the wake of a week-long attempt by EACC to regain its credibility following an explosive affidavit on the Sh791 million National Youth Service scandal.
Investigations by Sunday Nation and multiple interviews have established that the clique is strategically placed in Parliament, within the Executive and in the judicial system.
It plays God on who should, or should not be, investigated — using senior EACC officials as puppets that manipulate case files; effectively subverting justice, fixing individuals and running extortion rings.
Recent incidents where EACC apparently cleared former CS Anne Waiguru over the Sh791 million scandal and the appointment of Mr Richard Ethan Ndubai as new NYS director despite past corruption allegations against him, have once again raised questions on the independence of EACC.
Ms Waiguru returned to the limelight after an affidavit filed by Ms Josephine Kabura, a suspect in the loss of money at NYS, alleged that the former Devolution CS was the brains behind the scandal.
Mr Ndubai had been named among the people who the anti-corruption commission had recovered public property from.
On Saturday, the EACC Head of Corporate Affairs Mr Kairichi Marimba defended the commission from claims that it was pressured to clear Ms Waiguru and Mr Ndubai, among other people.
“On Waiguru, we have stated time and again she was not cleared on all allegations, as is being implied. The status letter was in respect of four other matters where she was not implicated. The status letter was clear: 'So far...'meaning we are open to fresh evidence or allegations. The Sh791m was not one of those four. As our chairperson (Mr Philip Kinisu) said on Saturday, the commission is now looking at the Sh791m saga,” said Mr Marimba.
He said EACC did not interview Ms Kabura because they had no basis to do so since she was not involved in the initial matters they were investigating.
She has, however, been on the radar of the multi-agency team comprising EACC, the Directorate of Criminal Investigation, the Asset Recovery Agency, the National Intelligence Service, the Director of Public Prosecution and the Kenya Revenue Authority.
He explained that each agency had its own mandate but “ongoing matters by any of these agencies will not be dropped, but more charges ranging from tax, asset recovery, and economic crimes will be added”.
According to former top EACC officials, who spoke in confidence, there are three cartels that control investigations.
One comprises two lawyers close to State House and an aide in the executive.
The other is led by two MPs — one who sits in the Legal Affairs Committee and another from northern Kenya. The third group has three top city lawyers with business interests.
Our source cited the “List of Shame” that President Uhuru Kenyatta tabled in Parliament last March as a case where the graft network took advantage to “fix others”.
“Some of the cases will never be completed since they were just allegations aimed at fixing people. An example is a senior former official from Rift Valley who refused to pay a bribe to influential people to clear his name... he told them off,” the source said.
The sources painted a broken institution, with attention turning to new EACC chairman and his commissioners.
“For instance, Dr John Mutonyi (a former deputy director) put in place a computer-based system, paid for by donors, to track files from the time cases are reported to prosecution. This online system is used in an ad hoc manner."
The reason is that if cases are entered into the system, no one can unilaterally delete them. A report must be done and the reasons for doing it given. So, in some cases, this system is avoided,” said a former senior official who left for greener pastures and did not want to be identified.
Sources also indicated that the priority given to cases is subjective. Further, there is no CCTV in the interrogation room, making it difficult to monitor the process.
However, Mr Marimba discounted claims that the institution was under the direction of cartels.
“The law is very clear on our operational independence. We report to Parliament quarterly. We do not take instructions from anybody in the discharge of our duties. Any one purporting to direct us knows very well they have no power to do so.”
He also noted that EACC officials meet the President from time to time.
“Under the multi-agency arrangement, the seven heads of these agencies meet every week to review progress. There are no scheduled meetings with the President. But on a need basis, the team may meet the President,” he said.
He added: “The Intercore system is up and running and is one of the many systems in place,” denying that entry of investigation material was done selectively. He could not, however, fully explain why some cases delay while others are fast-tracked.
In an earlier interview with Sunday Nation, former Ethics Permanent Secretary John Githongo said EACC was set up to fail.
“I would step back and ask a question. When was EACC created? Its history dates back to 1998, during the introduction of Structural Adjustment Programmes and EACC (then known as the Kenya Anti-Corruption Authority) was a condition to fight corruption."
"These models were exported throughout Africa. We created it because the AG (Attorney-General), DPP (Director of Public Prosecution) and police were then not fighting corruption,” said Mr Githongo.
He argued that the anti-corruption agencies, wherever they are in Africa, have suffered “political trauma”.
“These organisations needed to be embedded in the Constitution. When we were embedding EACC, we watered it down. The commission has an advisory power. The real power is elsewhere because they were hobbled together by politicians during Constitution making,” said Mr Githongo.
Mr Ndung’u Wainaina of the International Centre for Policy and Conflict concurred with Mr Githongo that Kenya deliberately established a weak EACC that is a “whitewash”.