An open letter to President Uhuru Kenyatta

Sir, Kenya is arguably in a challenging fiscal and monetary paralysis.

In other words, our economy is in a debilitating state. However, if we think and act creatively we are on the cusp of the greatest opportunity that has ever presented itself to the nation.

When President Mwai Kibaki acceded to power in 2002 and set up the Ndung’u commission of inquiry, it unearthed a catalogue of illegal or irregular allocation of public land.

And nobody could have imagined 16 years later, it could be a blessing in disguise for the survival of Kenya’s economic well-being.

That report is today probably the gold mine that can turn around this country and offer your Excellency a chance to deliver a budget surplus by 2022.

Chapter 4, Article 40 (6) of the Constitution on protection of rights to property, states that these rights do not extend to any property unlawfully acquired.

REFERENDUM

Since the Constitution does not recognise what was illegally or irregularly allocated, this is a potential national treasure.

Mr President, using the report, you can internally generate trillions of shillings, and this is how it can be done.

Create a National Asset Authority whose mandate is to address the findings of the Ndung’u commission.

Then have Kenyans pass a referendum to amend Article 40(6) to compel those who irregularly acquired properties to buy it from the National Asset Authority under a one-off time amnesty.

If they fail to buy the land, it will be offered to other Kenyans under the doctrine of 'willing seller willing buyer'.

This will generate billions, if not trillions, of shillings and Kenyans will have no business relying on the International Monetary Fund, the World Bank or Euro bonds.

ASSET RECOVERY

An additional source of revenue is to apply mercilessly the judgment of the Court of Appeal by Justices Waki, Gatembu and Odek in their bold decision, which has given a shot in the arm to efforts by the Ethics and Anti-Corruption Commission (EACC) to recover proceeds of unexplained assets in their case against Stanley Amuti, a former National Water Conservation and Pipeline Corporation finance manager.

This judgment arises out of the provisions of the Anti Corruption and Economic Crimes Act.

The Court of Appeal upheld a High Court decision by Lady Justice Achode who found Amuti was in possession of unexplained assets valued at Sh41,208,000 and accordingly ordered the assets be surrendered to the government.

It is a landmark decision because, hitherto, Kenyans have focused on prosecution of those accused of corruption with little effort on recovering the proceeds of crime.

The implication is that you do not necessarily need to be convicted of corruption crimes to be asked to justify your assets.

LIFESTYLE AUDIT

Section 26 of the Act simply demands an individual to furnish a statement on property to EACC.

The relevant section states that if your various assets located in different parts of the country are estimated at X shillings and are found to be disproportionate to your income, you are therefore reasonably suspected of engaging in corruption and economic crimes.

The burden of proof shifts to the individual on whom the lifestyle audit is being conducted to justify his wealth or property suspected to have been unjustly acquired.

This means the government has the legal instrument(s) to pursue individuals to justify their source of wealth and no one has recourse other than to comply accordingly.

In fact, the Constitution enjoins government and individuals under Article 258 of the Constitution to seek enforcement.

COMMITMENT

A person has a right to institute court proceedings claiming the Constitution has been contravened or is threatened with contravention.

It is under this article that individuals can file court proceedings acting on their behalf, or in the interest of a group or class of persons, or an association in the interest of one or more of its members.

Amuti’s judgment has opened a floodgate of cases where individuals may be required to explain their wealth, which they acquired under circumstances that Kenyans have raised doubts about.

It should therefore worry those who may have compromised public resources for their personal gains under their names or those of their relatives. The time of reckoning is here with us.

JUSTICE

Mr President, extraordinary times call for extraordinary measures but above all, creative and bold decisions.

Some may not like your actions, but you cannot be everything to everybody.

Besides, you shall have done justice to all Kenyans. Courage is of fundamental essence.

Fortunately, you have the backing of Kenyans as they fully support your crusade against corruption.

The writer is an advocate of the High Court of Kenya; [email protected]