Cartels are Kenya’s next obstacle to anti-corruption efforts

The day before President Uhuru Kenyatta issued the toughest ever edict on corruption by a Kenyan leader during his second State of the Nation Address on March 26, 2015, the Senate of Romania in Eastern Europe voted against lifting the immunity of Dan Sova, a former Transportation minister under investigation for corruption.

While Kenyatta ordered public servants under investigation on corruption scandals by the Ethics and Anti-Corruption Commission (EACC) to step aside pending completion of the probes, he appeared alive to real obstacles to extending the sweep to other arms of Government.

“I expect the other arms of Government, namely the Legislature and the Judiciary, to do the same,” he appealed.

This is a sad pointer to the possibility that the President’s edict on corruption could run into a brick wall of immunity claims by elected leaders ala Romania.

The doctrine of granting partial immunity to legislators from prosecution was primarily created to reduce the possibility of MPs being forced to vote on the basis of fear of prosecution.

However, in practice the system has provided an escape vent to members of the political class facing corruption charges.

The first category to invoke this doctrine will be the elected officials (MPs, senators and devolved government officials) who might rush to court.

Those who might seek refuge from prosecution from legislative immunity include no less than 11 county governors, five MPs and two senators mentioned in connection with the various corruption scandals as well as members of Public Accounts Committee (27) and the Agriculture Committee (29) accused of receiving bribes.

The second obstacle the government is likely to encounter is the Opposition.

Last week, an opinion writer who called on the President to “walk the talk in fight against corruption,” wrote effusively about “20 of the most egregious scandals in the last two years” of Jubilee rule, creating the erroneous impression of a “corrupt Government” and “pious opposition” (SN 22/3/15).

Corruption is an equal opportunity scourge. Going by prevailing reports, there are many opposition Governors, MPs and Senators mentioned in corruption scandals as those from the government side.

As the idiom goes, it takes two to tango. President Kenyatta’s anti-graft war will inexorably run into a third obstacle: Private companies and international cartels hiding behind diplomatic immunity and pampered status of “foreign investors.”

TWO CATEGORIES

Corruption in Kenya falls into two broad categories: The first are cases involving Kenyan nationals such as the PAC bribery allegations.

The second are cases linking Kenyan nationals and international actors, including the Goldenberg, Anglo-Leasing, Chicken Gate and Goodyear scandals.

Attempts to investigate the Goldenberg scandal in the 1990s, which involved Goldenberg International and senior Government officials and cost Kenya the equivalent of more than 10 pc of the country’s annual Gross Domestic Product, ran into the brick wall of local and international cartels.

For years, the Anglo-Leasing scandal relating to widespread fraud through non-delivery and overpricing has been fraught with obstacles to investigations.

Last year, when Kenya embarked on processing its first ever sovereign bond, the country was forced to settle a foreign court judgment that required it to pay a whooping Sh1.4 billion to shadowy entities involved in Anglo-Leasing scam.

Recently, fresh efforts by the Jubilee Government to investigate the case with the backing of a number of friendly foreign governments began to bear fruit.

But a new obstacle has emerged to threaten the prosecution of suspected perpetrators. Meddling in the affairs of the EACC has resulted in infighting and finger-pointing among its officers with the risk of crippling the investigative capacity of the institution.

“From reports I have received, I strongly believe that this is a further attempt to subvert the successful prosecution of the Anglo-Leasing cases,” the President opined. But the Government appears determined to pursue this case as an example of its resolve to tackle corruption.

Another case in point is the so-called “Chickengate” which came to the limelight after a four-year investigation by the British Serious Fraud Office (SFO) into allegations of the British firm, Smith and Ouzman (S&O) giving bribes codenamed “chicken” to officials of the defunct Interim Independent Electoral Commission (IIEC).

The Cabinet Secretary for Energy, Davis Chirchir, is most likely the highest ranking casualty of this scandal.

From the corridors of diplomacy, it is emerging that key Western diplomats are exploiting the Chickengate scandal to pile pressure on Kenya to eject IEBC Chairman Isaack Hassan and open the electoral body to external influence ahead of 2017.

The final case is the Goodyear bribery scandal that came to the limelight after American sources revealed that US regulators had ordered the tyre firm to pay $16m over allegations that it failed to stop bribery in its Kenyan and Angolan operations and hid bribes paid between 2007 and 2011 into its accounts.

Goodyear has forfeited all of the illicit profits from business obtained through bribes to Kenyan and Angolan officials and employees of companies involved. None of the forfeited profits will find their way back to Kenya.

Clearly, the Goodyear corruption circuit unveils sleaze as an intricate triad of government officials, senior officials of commercial companies and international cartels.

Draining the swamps of corruption may demand that the government impose heavy penalties on local private companies whose officials are involved in corrupt deals and to cancel permits of international cartels linked to corruption.

Prof Peter Kagwanja is the Chief Executive, Africa Policy Institute and former Government Adviser.