Uhuru’s stalled war on corruption setting him up for a perfect storm

Saturday March 12 2016

Ethics and Anti-Corruption Commission (EACC) Chairman Philip Kinisu takes oath of office by at the Supreme Court on January 18, 2016. A second attempt to persuade the courts to declare as unconstitutional the swearing of public or state officers using the Holy books has flopped. PHOTO | SALATON NJAU | NATION MEDIA GROUP

Ethics and Anti-Corruption Commission (EACC) Chairman Philip Kinisu takes oath of office by at the Supreme Court on January 18, 2016. PHOTO | SALATON NJAU | NATION MEDIA GROUP 

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American counter-cultural journalist Hunter S. Thompson once said “there is no such thing as paranoia” because “your worst fears can come true at any moment.”

President Uhuru Kenyatta’s decision to appoint Mr Sharad Rao chairman of the Tunoi Tribunal will prove to be the congenital defect that eventually undermines its ability to unravel the Sh200 million bribe scandal.

As the paranoid might say, the tribunal is designed to fail from the very first. Even Mr Rao’s supporters know it: there is an arguable case that he is unqualified.

The President’s advisers must surely know that with the stakes this high, Justice Philip Tunoi, will eventually challenge Mr Rao’s chairmanship.

Were the court to disqualify Mr Rao, the President would be left in legal shallows. Is there residual power to replace a member of the tribunal? Many lawyers think not.

The President is now functus officio — jargon for an officer who can no longer act because the deadline for exercising power has passed. Others disagree: they say that there is residual power to replace a tribunal member who has died or suffered a debilitating illness. In short, there are arguable arguments on both sides, which is more than most lawyers need to launch interminable lawsuits.

The sting in leaving the door open this way lies in this: If it is true that a Sh200 million bribe was paid, it was to buy the court, not merely Justice Tunoi’s vote, which alone would have been futile. As the talking heads have been asking, did other Supreme Court judges ‘eat?’ Would they uphold the legality of Mr Rao’s appointment and risk an I-will-tell-all-now from Justice Tunoi?

To add complexity to an already convoluted case, Justice Tunoi’s lawyers have now asked the Court of Appeal to stay his retirement case pending the tribunal hearings. As a friend wryly noted, we now have the ticklish paradox of an appeal that Justice Tunoi’s lawyers say “should not be heard to await the decision of a tribunal that may never properly sit.”

The truth is that this latest decision begins to look like a pro-Tunoi stitch-up by the President’s legal advisers. But they should see just how embarrassing this will prove to be for the President.

President Kenyatta has often made lofty and sometimes implacable speeches on tackling corruption. However, action has been timorous and feckless, invariably blunting the tough message. Stern talk followed by inaction has only eroded the President’s credibility and undermined public support for him.

Yet, in context, this affair is only the latest of many scandals in which so much was expected and so little delivered. The President has often had opportunities to walk his anti-corruption talk and as often he has not.

In 2014, the UK’s Serious Fraud Office, SFO, exposed a lurid bribery scam in which a British firm had given bribes — “chicken” — to officials at the Interim Independent Electoral Commission (IIEC), the body set up in July 2009 to replace the Electoral Commission of Kenya, (ECK). The SFO gathered enough evidence to convict executives at Smith and Ouzman, the British firm.

Culled from the copious emails exchanged between the firm and IIEC officials, the evidence revealed extensive corruption: printing costs for supply of election materials had been flagrantly padded — with mark-ups as high as 40 per cent. The actual “chicken”, paid to the named officials is set out in embarrassing detail in an affidavit filed in court by a Mr Bryant-Heron, a leading fraud attorney.

Only now, two years since the scandal broke, has the lumbering EACC finally stirred awake: first interrogating an assortment of middling bureaucrats and minions to great fanfare. And then only a few days ago inviting the IEBC chairman for what, on all accounts, was a friendly chat. The EACC’s ‘fabricated’ lethargy makes a monkey of Kenya: British citizens are in jail for bribing Kenyan citizens who are still in office.

Then there is the tawdry affair on the extradition of former Kenya Power boss Samuel Gichuru and former Nambale MP Chris Okemo, both indicted for money laundering in July 2011 by authorities in Jersey. Jersey’s diligent Attorney-General has recently been allowed by the court to confiscate Sh520 million belonging to Windward Trading Ltd, a company set up by Mr Gichuru in the 1980s.

The company admitted that it had laundered the money, through intermediaries in 12 countries, between July 29, 1999 and October 19, 2001. The evidence gathered by Jersey authorities would be enough to indict the two in Kenya but, once again, the DPP and EACC have been culpably negligent and inexcusably indolent.

To these may be added many more: firm action is promised and as soon as it is announced, it is vigorously thwarted.

There is the never-ending “no-money-was-lost Eurobond scandal”. Dodgy paperwork, fuzzy math and redacted bank statements have left the issues at stake as clear as mud.

Then there is Anne Waiguru’s NYS game of musical chairs in which Kenyans were initially told — as with the Eurobond cash — that no money was lost. The latest spin is that the NYS loot was split between crooks in both government and the opposition. As if equal opportunity thieving somehow wipe the slate clean.

These constant lies have totally de-magnetised our leaders’ moral compass: they can no longer find true north. Everywhere we see an extraordinary loss of a sense of shame. Recently, the Cabinet Secretary for Public Service, Youth and Gender Affairs, Sicily Kariuki, told Kenyans that the Youth Enterprise Fund “has lost only Sh180 million”.

Surely, something morally precious is irretrievably lost when the theft of nearly US$2 million of public money is announced this way. This same moral flabbiness is what explains our tendency to gawp at and lionise the corrupt. It is also why the corrupt regularly troop their religious colours and moralise to their victims on the virtues of honest labour.

The impact of official inaction is that corruption is normalised, to devastating effect. Criticism and outrage lose their moral force.

If in England “a fool and his money are soon parted,” in Kenya, “a thief and his money are soon elected”. Corrupt but rich people are “businessmen” “businesswomen” and “investors.” Now they can even earn absolution through moral barter with the Church.

By donating a new jeep to the pastor; paying for a roof for the church-building; donating pews for the worshippers or funding a spanking belfry, they can buy the church’s moral silence and even become elders. This ethical harlotry makes the “eating” Church a sorry part of the moral economy of corruption.

This should worry President Kenyatta. A morally rudderless society in which criminal surfeit lies cheek by jowl with squalid scarcity is, as history teaches, dangerously unstable.

Many in Kenya today are sullen and desperate, seething and roiling with combustible tensions. When the President promises but fails to act on corruption; when his advisers seem to rig the legal system for their corrupt friends they are testing the patience of a frustrated citizenry. The President — and Kenya — are, unwittingly, being set up for a perfect storm. Be very afraid.

Wachira Maina is a constitutional lawyer