Spotlight turns on Judiciary in fight against grand corruption

The decision to prosecute the key players behind the Anglo Leasing scandal now turns the spotlight on the Judiciary, which some have accused of playing a less than sterling role in the war against corruption.

Chief Justice Willy Mutunga has introduced a raft of reforms in the institution, sharply raising the number of judges and magistrates, narrowing the pay gap between employees at various levels and building courts across the country to make justice more accessible to Wanjiku.

But anti-graft campaigners say that over the last decades the courts have been staunch allies of those accused of corruption.

The new cases will provide a key test to determine how much has changed in the halls of justice.

A long list of cases relating to corruption in the courts paints a picture of judges consistently taking the side of those accused of graft against investigators seeking to have them convicted.

A review of the court battles shows the various tactics petitioners have used to block investigations.

ECONOMIC CRIMES

One of the cases relates to Petition Number 390 which involved claims by the Kenya Anti-Corruption Commission that economic crimes were committed when Kenyan Government officials signed a deal for the supply of an integrated communication network for use by the Department of Defence.

On October 30, 2008, a judge issued a decision that had the effect of stopping the commission’s investigations, arguing that the Attorney-General had offered an opinion that the original agreement between Nedermar Technology BV and the Kenyan Government complied with the laws of Kenya.

“Granted that the contract was signed in the twilight days of the previous regime (in November 2002) and the legal battle is taking place in another regime (but) the office of the Honourable Attorney-General is an institution with institutional memory, and rules of common decency demand that the office maintains consistency in its opinions and representations based on the law,” wrote Justice Joseph Nyamu, who was eventually forced out of his job by a subsequent vetting board.

“… The change of mind (by the AG) smacks of total lack of public morality and, even on this ground alone, the court finds that it would be difficult to conclude that what is driving the new position by the Attorney-General and the other government agencies including KACC is the public interest. On this ground alone, the court is entitled to stop them in their tracks.”

This reasoning by the judge has subsequently been cited and applied in decisions relating to other Anglo Leasing security type contracts.

RIDDLED WITH IRREGULARITIES

In another matter, a petitioner moved to court seeking to stop audit firm PricewaterhouseCoopers from investigating a contract for the supply and installation of communication equipment for the administration police.

PwC had found the process leading up to the award to have been riddled with irregularities.

The court, however, agreed with the petitioner and issued a decision on July 10, 2008 whose effect was to quash the forensic audit report prepared by PwC on the grounds that procurement procedures were not followed in contracting the audit firm and that it was likely offences had been committed by the Treasury in undertaking the audit.

An appeal by KACC against the decision was delayed after the copy of the judgment signed by the judge could not be traced. The anti-graft agency eventually wrote to the Deputy Registrar seeking a way forward on the matter. The judge’s notes were finally found and a long delayed appeal lodged on August 25, 2014.

Judicial review has been one of the most prominent methods of stalling investigations into corruption.

Authorities in Switzerland, for example, have pursued the Anglo Leasing cases with a rare vigour because most of the looted money was channelled into the Swiss banking system, where a reputation for strict confidentiality among banks over client matters has meant that the European country is a favourite destination for individuals and firms whose income is suspected to have been obtained through graft.

The help from the Swiss has come thanks to a Mutual Legal Agreement request sent from the anti-corruption commission to Swiss authorities on May 3, 2007 seeking help to investigate one of the Anglo Leasing type contracts in which the Kenya Government was to be supplied with computers, servers and satellite equipment.

In a surprising verdict, judges in the High Court agreed with petitioners who had submitted that KACC had no powers to enter into a mutual legal agreement with a foreign government because it was not a state party. On that basis, the letter requesting MLA with Swiss authorities was declared irregular.

However, the Court of Appeal quashed the High Court decision, holding that KACC had powers to pursue mutual legal assistance under section 12 (3) of the Anti-Corruption and Economic Crimes Act (2003).

Despite the success of many of the appeals by KACC, the fact that the earlier decisions have resulted in dragging out the process and causing delays has been a prime source of comfort to suspects.
Investigators have often found themselves unable to act on information at hand in the face of court orders.

In one case, Application number 114 of 2007 relating to the installation of a telecommunication network for the defunct Postal Corporation of Kenya, judges issued orders staying warrants and further investigations by KACC.

Deepak Kamani whom KACC and Swiss authorities hold to have been at the heart of many of the Anglo Leasing contracts sued the Principal Immigration Officer and KACC over travel restrictions imposed on him.

The court ordered the release of the passports of the Anglo Leasing suspects and gave orders whose effect was to bar the anti-graft agency from asking suspects to surrender their travel documents in the course of investigations. KACC won the case on appeal. The endless circus in the courts and the ready issuing of injunctive orders by judges has frustrated anti-graft campaigners.

Writing in the Nation, Transparency International Kenya chief Samuel Kimeu called for speedy action this time.

“The prosecution team must be legally armed to tackle devices by suspects to manoeuvre the legal system; previous cases were botched by constitutional applications and other injunctions,” he wrote. “We expect that EACC and the DPP picked key lessons from previous investigations and prosecution that may be applied to ensure convictions this time.”

Legal observers say some of the most damaging decisions issued by judges have included decrees that no criminal investigation should be launched into contracts bearing an arbitration clause.

Despite the fact the overwhelming majority of the contracts in which corruption is alleged to have played a role relate to the security sector, judges have also held that contracts relating to national security should not be investigated by state agencies.

Also, some judges have encouraged anti-corruption authorities to pursue asset recovery through a civil process and not through criminal prosecution. Bizarrely, a judge even queried why the anti-graft agents were investigating the existence of a “ghost” company yet the “ghost” had performed the contract.

Anti-graft campaigners say the ultimate test will be whether the Executive and the Judiciary will have the political will and courage to push through with the cases. Mr Kimeu has called for asset recovery and also demanded greater levels of accountability from those at the top.

“The government is not out of the woods with regard to last year’s Sh1.4 billion payments. Many Kenyans believe this payment, like others relating to Anglo Leasing, was unjustified,” he said.

“Corruption scandals such as Anglo Leasing only serve to erode public confidence in the government, especially when no action is taken against public officers, other individuals and entities involved.”