Investigations, arrests and police raids in the Sh791 million NYS scandal were stage-managed stunts aimed at directing blame away from former Cabinet Secretary Anne Waiguru, according to damning court papers filed by businesswoman Josephine Kabura on Monday.
Ms Kabura claims she was warned of the raid by the Ethics and Anti-Corruption Commission well in advance by Mr Joseph Mugwanja, the head of the Banking Fraud Investigations Department of the Directorate of Criminal Investigations (DCI), and advised to remove any evidence from her home.
Even her arrest and detention at Kileleshwa Police Station on July 21, 2015, was fake.
She was arrested, taken to the police station, then driven home. In the morning, she was picked by a Mr Matapei Sautet and taken to the station so that it would appear she had spent the night there.
When she appeared in court on November 24, the man who was investigating the case, Mr Mugwanja “personally provided the bail money”, she claims.
PERVERSION OF JUSTICE
In her affidavit, Ms Kabura paints a picture of a totally lawless and avaricious group that ruthlessly made huge sums of money from tenders, made a total mockery of corruption investigations, caused “funny” charges to be preferred against individuals, while at the same time “pushing” for other civil servants to be prosecuted all the while cynically inventing a bogeyman”, a “vicious”, “uncontrollable” cartel working with senior government officials.
Ms Kabura accuses Ms Waiguru and her close associates of hatching elaborate schemes to cover up the loss of millions of shillings at the National Youth Service and to shield the main players and mislead the public.
Ms Kabura is now seeking to be enjoined in a case in which the Asset Recovery Agency is seeking orders to seize the properties of eight suspects linked to the Sh791 million scandal.
Ms Kabura claims that Ms Waiguru worked in cahoots with several people, among them Mr Mutahi Ngunyi, who was hired to work as an NYS consultant, Mr Mugwanja and other people, including two journalists.
According to Ms Kabura, Ms Waiguru was effectively a silent partner in her companies, which were paid Sh791 million for the supply of road construction materials to the slums in Nairobi.
Ms Waiguru registered the companies, masterminded the opening of the accounts, shared in the profits and decided who was to be paid off, according to Ms Kabura.
The businesswoman, who describes herself as a “friend and acquaintance” of Ms Waiguru — she pointedly names Ms Waiguru’s driver and house girl and describes her private cars — paints the picture of breathtakingly audacious and almost obsessive corruption and perversion of justice at senior levels of the public sector.
“Mr Mutahi Ngunyi advised Madam Waiguru to do an official statement to cool down public anger.
He also advised her to do a backdated letter on the purportedly stolen password,” says Ms Kabura. This, according to her, was the first in a series of elaborate schemes to cover up the scandal.
According to her, the backdated letter was meant “ostensibly to pave the way for Mr Mugwanja to officially take charge of investigations and the CS Waiguru to become the whistleblower”.
The letter was dated June 5, 2015, but she says it was actually written 11 days after the head of the ICT department at NYS had written a similar one to the Directorate of Criminal Investigations.
The mandate of the Banking Fraud Investigation Unit is to prevent and investigate dubious bank dealings, but if the affidavit is to be believed, the unit was itself being used to cover up fraud.
According to the court papers, Mr Mugwanja had earlier worked with Ms Waiguru on another project meant to create the impression that the Devolution Ministry had succeeded in weeding out ghost workers when in fact it had not.
“The ghost workers project... brought descent (sic) ‘returns’, and which the CS Waiguru said had achieved the desired results of creating public perception that the issue of ghost workers in government had been eliminated thanks to Mr Mugwanja’s input,” she says.
For his effort, Ms Waiguru allegedly promised Mr Mugwanja that she would help him become the director of the DCI.
At one meeting, Ms Kabura says, CS Waiguru and her associates agreed that attention would be turned to works worth about Sh695 million that NYS official Adan Harakhe had allegedly tried to pay irregularly.
This move, the meeting agreed, was to “avert many questions” by showing that there had been an attempted theft but it had been thwarted.
“It was also agreed that to disguise the truth, NYS staff would be charged in a phony set up for purposes of driving favourable public perception,” says Ms Kabura.
Those in the meeting included Mr Harakhe, the then Secretary for Administration at the Devolution Ministry, Mr Noor Hassan, Mr Ngunyi and Mr Mugwanja.
Mr Mugwanja instructed Mr Harakhe to record a statement with the banking fraud unit exonerating Ms Waiguru from any blame in the scandal. The meeting also agreed that Ms Kabura would record a statement but she should not be accompanied by a lawyer.
“I was subsequently summoned to BFID on 2nd July 2015 and I was asked to carry with me documentation that would show that I actually did deliver the construction materials,” she says.
Mr Mugwanja personally took her statement in the presence of other BFID officers.
A week later, Ms Waiguru directed her to hand over two bags of money containing Sh80 million to Mr Mugwanja and Mr Sautet for safe keeping.
“She (Waiguru) said they would keep it safely away from even NIS, who had been looped into the case,” says Ms Kabura.
She further narrates how Mr Mugwanja later invited her to his office and told her that they had hatched a plan to clear her name and shift the blame to third parties.
The plan involved the preparation of a defective charge sheet that would aid in her ultimate acquittal and the stage-managing of the arrest.
“This was done, following which I was booked at Kileleshwa Police Station and taken home later by Mr Matapei Sautet and was picked up in the morning of the following day by Mr Sautet and taken to Kileleshwa Police Station, where I was subsequently picked by an official BFID Land Cruiser vehicle and taken to BFID headquarters,” the affidavit states.
“At BFID, I was processed and told that the Pawn was also being processed,” she says, without elaborating who the pawn was. “The pawn and I were taken to court at around 9-10am where we stayed up to 2pm only to be taken back to BFID without being charged in court as Mr Mugwanja had said would happen.”
In chess, the pawn is the smallest piece and has the least value. The term can also mean a person being used by others for their own purposes.
Ms Kabura was freed on a free bond to create the impression that the police were determined to prosecute her.
Later, she was charged with abuse of office and breach of public trust although she is a private citizen. All charges are approved by the Office of the Public Prosecutor.
DEFECTIVE CHARGE SHEET
According to her, the defective charge sheet was part of the plot hatched by Ms Waiguru to ensure that the case collapsed.
“The CS Waiguru assured me that only ‘funny’ charges would be preferred against me. The charge, as promised, would be abuse of office and breach of public trust,” Ms Kabura says in her affidavit.
“CS Waiguru also informed me that she had pushed for charging of many people, including the PS and DG so that she would not be implicated anywhere.
“According to the CS Waiguru, the idea was to paint the image of a vicious and uncontrollable cartel of crooked people working with senior officers, which then was beyond the control of the CS Waiguru,” the affidavit states.
In schemes worthy of Anglo Leasing and other notorious scandals, Ms Kabura claims that the public was hood-winked and misled about the real goings-on at NYS, the police and ultimately the prosecution service.
“Although Mr Mugwanja guaranteed that there would not be a raid in my house, he requested if I had anything incriminating and that I should “take care” of it.
It is at this point that Mugwanja requested the “secure” phone since if found, it could be traced back to CS Waiguru,” she says.