Latest claims against Waiguru are damaging to Uhuru

Former Devolution and Planning Cabinet Secretary Anne Waiguru (left) and Planning Principal Secretary Peter Mangiti leave parliament Buildings on November 4, 2015 after appearing before the National Assembly Public Accounts Committee where they were grilled on the ministry's expenditure. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • Reading businesswoman Josephine Kabura’s affidavit of sordid official stupidities and crass thieving in the National Youth Service, one cannot help but agree with US politician Ron Paul that “when one gets in bed with government, one must expect the diseases it spreads”
  • Ms Kabura is trying to exculpate herself from any wrongdoing with regard to the Sh791 million NYS corruption scandal that eventually forced Ms Waiguru out of the Cabinet.

As one reads businesswoman Josephine Kabura’s affidavit of sordid official stupidities and crass thieving in the National Youth Service, one cannot help but agree with US politician Ron Paul that “when one gets in bed with government, one must expect the diseases it spreads”.

Some of those diseases — even assuming that only half of what Ms Kabura says of former Devolution Cabinet Secretary Anne Waiguru’s stewardship of the NYS is true, are loss of moral sensibility — a belief that lies frequently repeated become truths and an inability to keep one’s appetites in check.

To be sure, Ms Kabura is trying to exculpate herself from any wrongdoing with regard to the Sh791 million NYS corruption scandal that eventually forced Ms Waiguru out of the Cabinet. Yet, discounting the inevitable bias this creates, there are enough verifiable facts in this affidavit to send a shiver down the spine: Cartloads of cash, moneybags in car boots and a totally vulgar perversion of the criminal justice system.

Seemingly banal facts such as whether, in fact, Ms Waiguru, through her personal assistant, Ms Betty Maina, helped her incorporate new companies in October 2014; whether those same firms got local purchase orders to supply the government the next month; whether a fake arrest was staged and entered into the Occurrence Book at the Kileleshwa Police Station, Nairobi, while she slept at home and whether she was given a free police bond for such serious fraud are all easy to confirm.

It is not a pretty picture that emerges. Ms Waiguru’s vertiginous descent into ever deepening mire since she first tried to spin herself into the role of both victim and whistleblower on corruption in NYS has been unnerving.

These latest claims will not only destroy what little credibility she still has, but are likely to be extremely damaging to President Uhuru Kenyatta, a matter we shall discuss shortly.

The problem is not that she is guilty of all that Ms Kabura accuses her of, but rather the fact that the modus operandi the business woman describes — even if only half true — is utterly reprehensible. Cash in duffel bags and car trunks is the stuff of mafia paymasters and contract killers, not people entrusted with public money.

DRIPPING WITH SACARSM
And yet Ms Waiguru and her former adviser, Mr Mutahi Ngunyi, do not seem to grasp the enormity of the situation. Their responses so far have been derisive, hubristic and condescending. Not unlike Justice Phillip Tunoi, their first instinct has been to deny all the claims in tones dripping with sarcasm.

“The NYS affidavit by Josephine ‘whatever’ is a lie,” said Mr Ngunyi.

Ms Waiguru is marginally more polite, remarking with Clintonite misdirection: “I have never met that woman.” She has also mounted the usual but now increasingly frayed Svengali defence: “Unnamed malignant forces are out to ruin me.”

The latest claims are not only extremely awkward but they could permanently damage the President’s legacy. He must surely rue not firing Waiguru sooner. Her precipitous fall is bleeding him much of his political capital, more so out of office than when she was in. Part of the reason is her failure to see the wisdom of silence. Rather than let the storm blow over, she has been ineptly flailing, on the social media and in the Press.

Her attempts at self-defence strain credulity; attempts to explain the goings-on at NYS have lost her public sympathy, even from those who had earlier swallowed the Ngunyi line that she was seized on just because she is a woman.

Her efforts to explain, on a public service salary, all the visible personal wealth around her — spanking new home and fancy cars — are not just unpalatable but have been reckless, imprudent and conceited. Her advisers should have told her this.

Her rather pedantic defence against Ms Kabura’s claims is that she got the fact of her Kitisuru home wrong, which sounds more like a wounded brag rather than a correction. How does that make a difference when the charge is that she is at the heart of the most insidious perversion of the criminal justice system since the Goldenberg scandal?

More fundamentally, the President should worry how these murky dealings erode what little trust people still have in the Government. If cartloads of cash were being ferried away in the midst of denials that NYS had lost any money, why should anyone believe other equally loud denials, including those on the Eurobond cash?

CRIMINAL SYNDICATE

If the government is no better than a highly centralised criminal syndicate, as these shenanigans suggest, the President’s authority — already challenged on many fronts by both ineptitude and hubris — will be ruinously thin as he goes to the elections next year.

The sullied reputation of the Ethics and Anti-Corruption Commission (EACC), the police and the Banking Fraud Investigations Department (BFID) will be a real headache too.

Most Kenyans see the growing incompetence of the EACC, its lopsided, and now, so it seems, compromised investigations as the real threat to anti-corruption reform in Kenya.

Many will think that it is better to be without an anti-corruption agency than to have one that is dangerously misdirected or is a stooge of the powerful. In the recent past, the EACC has been busy, conducting meretricious “crash and bang” searches and seizures at the homes of the suspects, ostensibly to look for incriminating documents that may have been squirrelled away from government offices. If true that in the Waiguru case, they had warned the suspects to expect the searches, how do we know they have not done so in these other cases?

That, in turn, will raise more troubling questions: What evidence exactly had EACC reviewed and dismissed when they recently exonerated Ms Waiguru? Did they interview any of the suspects? Did they scrutinise Ms Waiguru’s bank records and if yes, what of those of her sister, who is prominently mentioned?

That the Kabura affidavit has them scrambling to restart an investigation they had already buried will encourage no one. If they were right to exonerate Ms Waiguru in the first place, why should the affidavit change anything? Did they, in fact, conduct any investigation at all or had they merely ran a charade of media optics for political purposes?

The President also won’t like the discreditable role the police and the BFID have played in this case. Yet the allegations against the police merely confirm what many Kenyans know from bitter experience: at the right price, you can buy almost any police service in Kenya. And the collusion between the police and the BFID, to which Ms Kabura swears, rings plausible.

Most of us know friends who have been locked up on the say-so of the powerful. Why should the converse not be possible, namely, that friends of the powerful could be arrested, booked at a police station and then driven to their homes to sleep?

As for the BFID, if it is true that one of its officers actually helped money launderers hide their cash, the President and his internal security team have a problem. If they can do this for the corrupt, can we trust them to interdict terrorist money?

This leaves the President in an unhappy corner. He defended Ms Waiguru to the last, staking his reputation on her honesty and fidelity to her oath of office. He has championed high salaries for the police and bought them state-of-the-art equipment to motivate them.

FINANCIAL SECTOR REFORMS

His tough talk on corruption last year included a series of financial sector reforms meant to choke off corrupt payments. What the claims in this affidavit suggest is that those reforms were make-believe games, like arranging deck chairs on the sinking Titanic.

Yet the President does not have what he now needs most — good legal advice. His legal advisers, especially Attorney-General Githu Muigai, have been spectacular failures. A magnificent poseur, the AG is more committed to airy eloquence than high principle; more interested in catching the eye of the President with showy speeches at The Hague than providing sound advice back home where his real job is. Faceless people appear to have run off with the AG’s functions, leaving the President dangerously exposed at a juridical crash site.

The President routinely signs unconstitutional laws; the National Transport and Safety Authority Department and the police write their own laws on the go. On several occasions, the President has blatantly disobeyed court orders.

With the deck stacked this way, the President will almost certainly be left stuck, holding the Waiguru tar-baby. The EACC may well exonerate her a second time after another round of hapless if not noisy investigations. Yet if it does so, both the commission and the President will be the butt of rude jokes on Twitter and any residual legitimacy they still have will evaporate.

If he hangs tough and throws Ms Waiguru under the bus, those close to him will fear that if he can do that to her, he could as well do it to them, increasing jitteriness in Government and costing him political allies ahead of the 2017 elections. It is the devil’s alternative: Whatever option he takes there will be political hell to pay. He knows the right thing to do. He should do it.

Mr Wachira Maina is a constitutional lawyer