Why Anglo Leasing prosecutions are a waste of time

It is not clear why the government has started fresh criminal cases on the Anglo Leasing scandal.

The outrage that this scandal once invoked has now waned, and these new prosecutions are of relatively little interest to the public.

The Kenyan public, not used to success when these types of cases go to court, remains sceptical, and is wondering why the government, without pressure from anywhere, would suddenly be so keen on prosecuting the type of people it usually protects.

It will be remembered that Anglo Leasing now straddles three presidents: Moi, Kibaki and Kenyatta.

The scandal started under Moi’s watch and even before the Kibaki administration came to power, the fore-sighted architects of Anglo Leasing had allegedly embraced his government.

It is claimed that they paid the bills incurred when Kibaki was hospitalised in London, following the serious car accident he suffered during the campaigns that led to his presidency.

It is also claimed that when Kibaki came into office, Anglo Leasing fully engulfed key members of his administration and would have continued thriving unnoticed, as it had done under Moi, had it not been for the solo efforts of John Githongo, Kibaki’s anti-corruption adviser, who became a conscientious objector to the scandal, on which he eventually blew the whistle.

Githongo’s role then created the space that enabled the Parliamentary Public Accounts Committee, under the leadership of Uhuru Kenyatta, to carry out a special investigation on the scandal. To date, Kenyatta’s report remains the most authoritative characterisation of the scandal.

In the circumstances, it became a matter of great surprise when, in May last year, the Jubilee Administration, with Kenyatta now President, paid Sh1.4 billion for the Anglo Leasing contracts.

While Moi, and to some extent Kibaki, can argue that they were misled by officials into doing business with Anglo Leasing, Kenyatta cannot sustain this argument, having led a parliamentary investigation on the scandal.

EXTENSIVE COVER-UP

In law, culpability for a crime attaches to the direct perpetrator of the proscribed act, referred to as the “principal”, as well as to persons who assisted the principal, referred to as “accessories”.

An accessory before the facts is a person who counsels or advises the principal on how to carry out the crime, while an accessory after the facts is a person who, knowing that a crime has been committed, aids or attempts to aid the principal, to escape apprehension.

The Anglo Leasing scandal is noted for the extensive cover-up that followed its discovery, a cover-up which, like the original crime, engulfed the highest levels of the government at the time.

In the eyes of the law, and depending on what other roles they might have played, those involved in the cover-up were, at least, accessories after the facts and are as culpable as the principals.

It is doubtful that officials would cover up a crime in which they do not have a stake. It is, therefore, likely that these accessories became co-perpetrators and now occupy the position of principals in their own right.

Up to this point, prosecutions have been confined to what was known when the scandal broke out in 2005 and have not been updated to consider the cover-up. Updated investigations would address the cover-up if inclusiveness was an object of these prosecutions.

In such investigations, President Kibaki would inexorably have to answer questions about what he knows about the scandal. The “Githongo Dossier”— the term used to refer to what John Githongo is presumed to know about the scandal — would become relevant here.

Then there is the payment under Kenyatta. The President expressed regret at having to pay Anglo Leasing, paid anyway, and then ordered fresh investigations from which he implicitly exempted himself.

The inherent contradiction is that the President acted correctly in ordering this payment, made so late in time and in full knowledge of the facts, while those who made previous payments must face prosecution.

This contradiction leads to the conclusion that, as has happened so many times before, the current prosecutions are a farce, and are not intended to succeed. The question, then, is: Why the prosecutions?

BRINKMANSHIP

One guess is that the much-discredited Ethics and Anti-Corruption Commission, whose chair is still fighting a court case challenging his suitability for office, needed to redeem itself by doing something worthwhile for a change.

It may also have to do with the larger political landscape involving brinkmanship between Jubilee and Cord. The Jubilee Government, currently battling the well-founded perception of an outbreak of a corruption pandemic in government, would like to demonstrate its commitment to the fight against graft.

These latest prosecutions recall the Goldenberg scandal, a scam that rivals Anglo Leasing quite favourably. While Goldenberg prosecutions commenced in 1994, soon after the scandal was discovered, the cases were discontinued after 15 years of fruitless endeavour in court.

High-end prosecutions for Anglo Leasing are just commencing now, 10 years since the scandal came to light. The history of Kenyan prosecutions of this nature leans heavily against success in the latest prosecutions.

Other than a delay in commencing the prosecutions, which casts them as an afterthought, the selective approach indicates that the law enforcement arms are not prepared to confront the political difficulties that an all-encompassing approach would necessitate.

It is unlikely that the anti-corruption commission would find the courage to question the three presidents, especially Kibaki and Kenyatta, who demonstrably know more about the scandal, than Moi. Therefore, these prosecutions are headed nowhere and are a waste of time.

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