Neither guilty nor innocent: Men who died before their cases were determined

Former Finance minister David Mwiraria. FILE PHOTO | NATION MEDIA GROUP

What you need to know:

  • In his first budget speech as the Treasury boss, Mwiraria zero-rated computers to boost ICT development in the country.

  • Mwiraria was to face corruption charges alongside 13 others for their alleged role in the multi-billion-shilling Anglo-Leasing scandal, but he never appeared in court due to illness.

  • Samuel Kivuitu and his fellow ECK commissioners had sued the government after the Commission was disbanded for mishandling the 2007 General Election.

David Mwiraria. Wilfred Koinange. Eliphaz Riungu. James Kanyotu. Samuel Kivuitu. John Habel Nyamu. Kihara Muttu.

At one time these individuals occupied public positions with immense power and influence. Some made remarkable contributions to Kenya’s development.

But their careers ended in shame for their acts of omission and commission while in office.

Some of them were removed from office as they approached retirement and faced criminal charges.

Others went to court to seek justice after being hounded out of office but died almost at the point of bankruptcy, having used all their savings in legal fees before their cases were concluded.

Their stories should make interesting reading to those occupying similar positions and provide useful lessons on what to do and what not to do in public office.

FINANCE MINISTER

Mwiraria’s last significant post was as Finance minister in President Mwai Kibaki’s administration, Dr Koinange was Permanent Secretary, Mr Riungu was Deputy Governor of the Central Bank while Mr Kanyotu was the Director of Directorate of Security Intelligence (“Special Branch”), what is today known as National Intelligence Service.

They were all in trouble because of the Goldenberg and Anglo-Leasing scandals in the Moi and Kibaki regimes that cost Kenyas billions.

 Mr Kivuitu, Mr Nyamu and Mr Muttu were at the Electoral Commission of Kenya (ECK) that was in charge of the disputed 2007 elections. Some 1,133 Kenyans were killed and more than 600,000 displaced from their homes after ECK declared Mr Kibaki the winner against ODM party challenger Raila Odinga who claimed the vote had been stolen.

During Mwiraria’s funeral in April last year, leaders were united in calling for his name to be cleared.

 “I agree with the leaders and truly know how the case affected  Mwiraria. All the leaders have said it here in church that Mwiraria was innocent,” President Uhuru Kenyatta said.

Justice Luka Kimaru, a Judge of the High Court, however, says that when a person dies before a criminal case is concluded, the case abates. “Because of death, the accused person is neither guilty nor innocent. Guilt is personal, hence it cannot be transferred,” he explained.

ECONOMIC CRIMES

The judge added that in cases under the Anti-Corruption and Economic Crimes Act, where the court finds that there is need for restoration of recovered assets, the estate of the person who has died can be asked to pay back.

Lawyer Lempaa Suiyanka agrees, saying efforts to clear persons posthumously amounts to nothing. “Those are just but political statements that have no legal basis,” he said.

Mr Suiyanka argues that once a person facing criminal charges dies, so does the criminal liability. “That is why a person facing criminal charges has to attend court unless under special arrangements,” he said.

Mr Suiyanka said that the criminal liability is not passed on to a family member unlike in civil liability or assets. “It is different in civil cases which now become an issue of succession,” he said.

Mwiraria was among those who were facing charges in relation to the Anglo-Leasing scandal.

Others charged alongside him were his former Permanent Secretary Joseph Magari, former Kisii Senator Chris Obure, former Postmaster-General Francis Chahonyo, former PSs Sammy Kyungu (Communication) and Dave Mwangi (Internal Security) and former head of debt management at the Treasury David Onyonka as well as former Finance Secretary Samuel Bundotich.

FAILING HEALTH

In the final days of his life, Mwiraria could not appear in court owing to his failing health, forcing the trial magistrate Felix Kombo to issue a warrant of arrest against him. Mwiraria challenged the warrant through his lawyer Kioko Kilukumi, who argued that the former minister was suffering from cancer which had caused blindness in one eye.

The former minister pleaded with the court to allow him to answer to the charges at the Karen Hospital where he was admitted or any other convenient place.

A team of doctors from Kenyatta National Hospital was constituted and, with a majority opinion of three, found that he could not appear in court for trial. And in December 2015, he denied the charges from his hospital bed.

Until his death on April 13, Mwiraria had taken a low profile and many Kenyans had almost forgotten the man who is credited with instilling financial discipline in government.

As Finance minister, he stabilised Kenya’s fluctuating interest rates and turned around the economy, following many years of ruin during the Nyayo era.

MASSIVE FUNDS

In his first budget speech as the Treasury boss, Mwiraria zero-rated computers to boost ICT development in the country.

He also allocated massive funds towards the undersea fibre optic project and changed Kenya’s budgeting system from yearly to a three-year medium-term expenditure framework. He also introduced laws in 2005 which banned the sale of alcohol in sachets.

His last public appointment was at Kenya Wildlife Service board, an appointment handed to him by President Kibaki after he lost the North Imenti parliamentary seat to Silas Muriuki of Mazingira Green Party in 2007. He unsuccessfully tried to recapture his parliamentary seat in 2013.

When he resigned, Mwiraria said the allegations made against him cast serious aspersions on his character and integrity.

“As I step aside, my conscience is clear that I have served the Kenyan people with dedication and honesty.”

Eliphaz Riungu

Eliphaz Riungu, the former CBK Deputy Governor, together with Wilfred Koinange, former Kenya Commercial Bank manager Elijah arap Bii, former CBK Governor Eric Kotut and Goldenberg International director Kamlesh Pattni and former spy chief James Kanyotu had become the Goldenberg tag team and frequented the court corridors for years in endless mentions.

The charges against the suspects were, however, quashed by High Court Judge Joseph Mutava who questioned the long delay in concluding the matter. The architect of the scandal, Mr Pattni, had at one time tried negotiating with DPP Keriako Tobiko over the settlement of the case in a plea bargain. This was after he surrendered the Grand Regency Hotel – now Laico Regency – to the government.

But the DPP rejected the bargain, saying the “Goldenberg scam extends beyond the matters relating to Grand Regency Hotel and the surrender of the hotel back to the CBK cannot and should not be used as a basis for settlement of the criminal case”.

Justice Mutava, however, quashed the charges, saying that the prosecution must come to an end. The Judge cited delays (20 years), adding that Pattni was not likely to get a fair hearing.

The Judge further prevented the DPP from preferring charges against him in future. The DPP has since appealed against the decision.

 Mr Riungu died before he could give his side of the story.

Samuel Kivuitu

The former chairman of the defunct Electoral Commission of Kenya (ECK) and his fellow commissioners had sued the government after the Commission was disbanded for mishandling the 2007 General Election.

Other than seeking compensation, they wanted to clear their names over allegations of bungling the election but, sadly, Kivuitu died before the case started.

Parliament disbanded ECK and sent the entire leadership packing in December 2008 and, aggrieved, Kivuitu and his team said their tenure was protected by the Constitution and that the National Assembly had no authority to disband the ECK.

They argued that they were hounded out of office for no compelling reasons and they deserved adequate compensation.

They argued that under the law and the Constitution, Parliament could only have recommended to the President to appoint a tribunal to investigate their alleged misconduct in managing the General Election. The recommendation by the tribunal could have then formed the basis for their removal.

They argued that they were entitled to their salaries, since the Commission was not disbanded in accordance with the Constitution.

The ECK was disbanded through enactment of a new law. 

Wilfred Koinange

The former Finance permanent secretary died in August 2012, aged 73. The long-serving civil servant also served as PS for various other ministries including Agriculture and Research, Science and Technology. He headed the Treasury between 1991 and 1993.

Dr Koinange died trying to clear his name. His only link to the scandal in which the government lost billions of shillings in a dubious compensation scheme was appending his signature to some documents.

In his court papers, he told the Commission of Inquiry investigating the matter that he was directed by the then President Moi to do so.

David Mwiraria

Mwiraria was to face corruption charges alongside 13 others for their alleged role in the multi-billion-shilling Anglo-Leasing scandal, but he never appeared in court due to illness.

The former minister faced four counts of conspiracy to commit an economic crime and to defraud the government of more than Sh4 billion. He was also accused of engaging in a project without prior planning. He is also said to have allowed the financing of a project intending to upgrade police and other security systems dubbed ‘E-Cops’ valued at Sh6.08bn.

He had been charged together with businessman Deepak Kamani, his father Chamanlal Kamani and his brother Rashmi Kamani.

Others were Mr Chris Obure, Mr Francis Chahonyo, Mr Sammy Kyungu, Mr Joseph Magari, Mr Dave Mwangi, Mr David Onyonka and Mr Samuel Bundotich.

Kihara Muttu

Kihara Muttu was Kivuitu’s deputy and died in November 2010, aged 74. The soft-spoken lawyer from Mukurwe-ini, Nyeri, was nominated to the commission by President Kibaki’s Democratic Party.

Habel John Nyamu
Before becoming a commissioner of the ECK, Nyamu had been a long-serving civil servant and was credited with improving the Kenya Institute of Administration. Under his tenure as principal, the institution churned out pioneer top civil servants trained to uphold morality, ethics and professionalism in public service.

James Kanyotu 

Kanyotu is said to have founded Goldenberg International together with Mr Pattni. He had not been linked with the company until the Commission of Inquiry into the saga uncovered that he was a director of the company.

Kanyotu, who was the country’s longest-serving spymaster, also died before the cases were concluded. During the Goldenberg hearings chaired by Justice Samuel Bosire, Kanyotu said he regretted the Goldenberg affair.