Why ‘list of shame’ blunder is a big blow to war on corruption

Infighting at the anti-corruption body, interference from the Executive and poor legal advice two years ago have come back to haunt the bold move to prosecute high-profile individuals.

According to Mr Sam Kimeu, executive director of Transparency International Kenya (TI-Kenya), the withdrawal of 125 graft cases last week after an earlier court ruling that the Ethics and Anti-Corruption Commission (EACC) was not properly constituted when it forwarded the files for prosecution, has come as an anti-climax after the well-received State of the Nation address to Parliament on March 26, 2015 by President Uhuru Kenyatta.

This came even as EACC gave reassurances that the matters will be returned to court after fresh investigations.

“It could have been avoided. To many of us it was clear that without commissioners at EACC we were creating an avenue for the suspects to exploit and which they have done,” said Mr Kimeu.

DOSSIER

Along with the President’s State of the Nation speech was the inconclusive investigation dossier from the EACC – the infamous list of shame – which had names of some 175 people who were under investigation for corruption, including cabinet secretaries, principal secretaries and other state officials.

For the President, the tabling of the name-and-shame dossier was to be his executive’s tough measure to tackle the pervasive graft in his administration.

The tabling of “the list of shame”, as it came to be known, would result in the only time President Kenyatta has carried out any meaningful re-organisation of his cabinet during his first term.

SACKINGS

The move saw the sacking of four cabinet secretaries namely Mr Michael Kamau (Transport), Mrs Charity Ngilu (Land), Mr Felix Koskei (Agriculture), Mr Davis Chirchir (Energy) and Mr Kazungu Kambi (Labour).

Others were Chief of Staff in the Office of the Deputy President Marianne Kitany, Secretary to the Cabinet Francis Kimemia, Transport Principal Secretary Nduva Muli and Dr Silas Simiyu, the managing director of Geothermal Development Corporation (GDC), among others.

But just after two years, prosecution of some 125 corruption cases has been brought to a screeching halt despite tens of billions of public funds being lost or unaccounted for, and may never be recovered following the July 14 ruling in an appeal by the former Transport CS, Mr Kamau. 

EACC

The three-judge bench comprising justices Milton Makhandia, William Ouko and Kathurima M’Inoti then held that the EACC was not properly constituted at the time it was investigating the corruption cases due to absence of commissioners and all cases investigated and forwarded to the Director of Public Prosecutions Keriako Tobiko during that period were invalid and unlawful.

“It is our finding that the Ethics and Anti-Corruption Commission was not properly constituted at the time it forwarded Engineer Kamau’s name to the Director of Public Prosecutions while recommending his prosecution,” they ruled.

Notable cases that have been struck out involve the high profile suspects in Sh2 billion National Youth Service (NYS) scandal, the Sh8 billion Karen land saga and the irregular purchase of the Chief Justice’s official residence at Sh310 million.

OFF THE HOOK

Other than Mrs Ngilu and Mrs Kamau who have survived over oversight, other officials let off the hook include former Chief Registrar of Judiciary and now Uasin Gishu Woman Representative Gladys Shollei, former NYS Director General Nelson Githinji and former Bungoma county government officials implicated in the purchase of wheelbarrows at inflated prices.

Mrs Ngilu had been charged with blocking investigations into the Sh8 billion Karen land scandal. She had also been accused of conspiracy to inflate the value of a plot in Mombasa with a view to a personal benefit and an attempt to deprive Myta Limited of a land located along Statehouse Crescent Road in Nairobi.

Mr Kamau was suspended from the Cabinet and charged in June 2015 with two counts of abuse of office and failure to comply with applicable procedures and guidelines relating to management of public funds. The offences were allegedly committed between 2007 and 2008 when he served as the PS in the Ministry of Roads and Public Works.

He was also accused of failing to comply with the set rules by ignoring the design of Kamukuywa-Kaptama-Kapsokwony-Sirisia Road done by Engiconsult Limited at a cost of Sh33,303,600 and entering into a memorandum under which the resident engineer redesigned the same road without due process.

SHOLLEI

Ms Shollei had been charged together with her former deputy Kakai Kissinger, former director of supply chain management Martin Otieno Okwata, former director of finance Benedict Abonyo Omollo and tender committee members Wycliffe Wanga Ombunde, Nicholas Moturi Okemwa, Nicholas Mbeba and Thomas Oloo Atak.

The charges stated that between April 16 and 30, 2013, being the accounting officer of the Judiciary, Ms Shollei used her office to improperly confer a benefit to the company by executing a contract and approving Sh310 million for the buying of the house, without complying with the public procurement and finance procedures.

She had also been charged with abuse of office in connection with more than Sh150 million allegedly for the construction of the prefabricated court buildings in Tawa, Mavoko and Garsen without approval of the tender committee.

ABUSE OF OFFICE

Dr Githinji had been accused of abuse of office and fraudulent acquisition of public property by allegedly taking his personal vehicle for repairs and charging it to the government.

The servicing of the vehicle KBS 475S cost Sh497,355. He had been charged together with Mr Nicholas Makokha – his personal assistant and then Chief Inspector NYS, and Mr Geoffrey Kimani Kiriha, formerly senior Superintendent Mechanic at the motor vehicles workshop.

The DPP, however, said the cases which were started in the absence of EACC commissioners would be sent back to the currently properly constituted anti-graft body for review and consideration.

The current situation however goes back to 2015 when the EACC infighting at the time and executive interference with internal operations of the anti-graft body which led to the ouster of then commissioners Mumo Matemu, Irene Keino and Jane Onsongo.

The EACC commissioners had fallen out with top officials who call the shots at the commission, and who have been having the ear of people in the executive.

The ouster of the commissioners took the form of cajoling and intimidation to have them leave office.

MATEMU

While Prof Onsongo quickly bowed out, Mr Matemu and Ms Keino tried to hold their grounds, going as far as disclosing behind-the-scenes intrigues by senior Jubilee administration officials to have them leave.

In one such meeting with the staff close to President Kenyatta, it is said a pistol was even whipped out to force the commissioners to resign.

When Mr Matemu and Ms Keino refused the offer to resign, President Uhuru Kenyatta named a tribunal led by retired High Court judge Jonathan Havelock to investigate the conduct of the commissioners.

The other members were Ms Margaret Wambui, Mr Muathe Issa and Juster Nkoroi. They eventually opted not to face the tribunal and tendered their resignations. 

NO COMMISSIONERS

The anti-graft body remained without commissioners for almost a year until January 2016 when a new team led by Philip Kinisu was sworn into office.

Secretariat’s argument

In the interim as the amendments were being done, EACC secretariat and the executive were insistent that the lack of commissioners would not stop their investigations because after all, commissioners’ role is limited to policy.

“EACC is anchored in the Constitution and its independence guaranteed like any other constitutional commission.

“The existence of a vacancy in the body corporate does not imply that EACC ceases to be properly constituted or to exist,” EACC boss Halakhe Waqo said in 2015. The courts have however disagreed.

VACUUM

The commissioners’ eventual resignation created a leadership vacuum which the suspects was investigating at the time have exploited to avoid facing justice.

Lawyer Harun Ndubi says that even though he does not agree with the Court of Appeal ruling, there is a sense in which the affected cases were deliberately set to fail “because of personal interests at EACC who were fighting for their survival and an executive which was seeking pliable individuals who could dance to their tune.”

“The situation was avoidable only if the staff of the secretariat did not behave as if they were the commission when in reality they are employees of the commission,” said Mr Ndubi.

Even though the Office of the Director of Prosecutions (ODPP) on Friday said that they had filed a notice of appeal in the Supreme Court to bring back the cases, it is admitting that many more similar cases could fall by the wayside. 

“Notice of appeal filed in the Supreme Court. In the meantime we have embarked on withdrawal of affected cases and returning the files to EACC to comply with the requirements of the court decision,” ODPP on Friday said in a Twitter chat under the banner #KenyaUnitedAgainstCorruption.

This realisation has come too little too late and left EACC and ODPP clutching at straws in the hope of recovering tens of billions of shillings lost through corruption.

On the ODPP appealing, Mr Kimeu remains sceptical.

“I am doubtful they are going to get a different outcome. On this, I think the Attorney General was clearly wrong and the courts are just affirming the same,” the TI-Kenya boss said.