“Friends, Kenyans, countrymen, lend me your ears.
I write to mourn Saitoti, not to praise him.
The evil that men do lives after them,
But the good is oft interred with their bones.
So let it be with Saitoti”.
Playwright William Shakespeare was cynically taunting human beings on their propensity for saying only nice things about the dead. But in the case of Prof Saitoti, the words seem close to prophecy.
Although the public believes otherwise, Goldenberg was, and is someone else’s baggage. This is not my opinion; it is the opinion of a three-judge Bench of the High Court presided over by Mr Justice Joseph Nyamu.
But in life, Saitoti never quite managed to clear his public image from the Goldenberg scandal even after the High Court expunged his name and issued a permanent injunction protecting the late mathematics professor from prosecution on the matter.
In Mwalulu vs AG, I was the second plaintiff and we got an order compelling Mr Justice Bosire to summon former President Moi, Prof Saitoti, and Mr Joshua Kulei.
Our argument was based on a precedent set by Mr Justice Akilano Akiwumi in an earlier commission whose report adversely mentioned Mr Nicholas Biwott, who promptly went to court and had his name expunged from the report on the grounds that he had not been summoned during the proceedings.
We argued, successfully, that it was not possible to write a credible report on Goldenberg without the input or mention of the persons named.
Therefore, not to summon them was to create a legal escape route via the precedent set by Akiwumi in respect of Mr Biwott.
The High Court agreed and gave us an order to serve on the Bosire Commission over Goldenberg. The presiding judge, who gave us this order, was Mr Justice Nyamu.
But Mr Justice Bosire side-stepped the court order, for which he was severely reprimanded by the Vetting Board recently.
Nonetheless, he made adverse mention of Prof Saitoti, whereupon, (any surprise here?), the good mathematician promptly went to court and had his name expunged. Ironically, the presiding judge this time was the same Justice Nyamu.
This makes the appreciation of the logic behind the judgment very interesting indeed. A full discussion of it is outside the scope of this commentary, but suffice it to mention just a few points.
First, the legal precedent set by Justice Akiwumi played itself out as we, plaintiffs in Mwalulu Vs AG, had predicted. Two, the Bosire Commission report contained factual errors which Mr Justice Nyamu was not afraid to expunge from the report.
The most glaring fuels the continuing public perception that the worst of Goldenberg happened under Prof Saitoti’s watch as Finance minister. The Bosire Report states on Paragraph 588:
“He (Prof Saitoti) left the Ministry of Finance in or about March 1993 and soon thereafter, Goldenberg’s network started crumbling”. This is false! Goldenberg activities actually escalated. The Sh5.8 billion payments started in April and continued until July 1993.
Between April and August 1993, Sh13.5 billion was paid to Goldenberg by CBK, pre-shipment loans increased, used Forex certificates burnt, and cheque kiting took place.
The evidence before the Commission was clear in the Parliamentary Hansard page 988 of June 23, 1999, EXH 94 where Mr Musalia Mudavadi states:
“First, I, Hon Mudavadi, was appointed Minister of Finance on January 13, 1993, by His Excellency the President and held the portfolio until January 1998”.
But on Paragraph 589, the Bosire Report states: “Hon Mudavadi became Minister of Finance on or about February or March 1993 and replaced Hon Saitoti”.
This is not oversight, not reckless drafting of a very important national document. This is a deliberate peddling of falsehoods against Prof Saitoti.
It was under Mr Mudavadi’s watch that Sh5.8 billion was withdrawn from a Central Bank Account at KCB “by prescription”; a piece of handwritten paper signed by the then PS in the Treasury.
Anybody who believes this transaction happened without the Finance minister’s intervention does not know how government works.
Anybody who believes such a colossal sum can be withdrawn from a State account without the express authority from the President is beyond naïve.
Mr Ngugi is a consultant in public affairs and policy.