We Must Never Tolerate Theft Of Public Resources

The Prime Minister of the Republic of Kenya, Raila Amolo Odinga, admitted in Parliament last week that more than Sh308 million of public money was lost - indeed squandered - by his office and related implementing ministries between 2008 and 2010. This only related to Phase One of the KKV. He also admitted that more than Sh20 million was misappropriated by his office in the year 2011 on Phase Two of the project.

Phase One of the KKV project was wholly funded by the public to the tune of Sh7 billion whereas the second phase of Sh4.3 billion was funded by the World Bank. That’s roughly Sh10.3 billion of public money.

That money is capable of constructing, equipping and staffing more than ten thousand primary schools where millions of poor kids would have gotten an education. What that amount of money has done should be visible to all Kenyans. But we clearly cannot see any evidence of where it all disappeared to. Sh10.3 billion isn’t chicken feed. It can’t be dismissed as inconsequential, as both the PM and some MPs have done.

Any public money – even one shilling – shouldn’t be stolen by anyone without any consequences! Can anyone please show us how such colossal amounts of public money have been spent? How has it qualitatively improved the lives of millions of unemployed youth?

The PM’s admission in Parliament came grudgingly. It wasn’t voluntary. Nor was he contrite. Curiously, he seemed to take back the admission by insisting that “no single cent has been lost”. That’s after reading out a litany of millions of irregular, unauthorised and clearly dodgy payments made out by his office in breach of the government’s and the Bank’s procedures and regulations.

A few days before, the PM had proclaimed himself “as white as cotton” over the allegations. He repeated that in Parliament and completely refused to appreciate that he is the Prime Minister of Kenya, a highly privileged public official and trustee. That wasn’t statesman like. It wasn’t respectful of the public either. It was callous. Astonishingly, the PM exhibited a reckless sense of entitlement on live TV. His presentation in Parliament was contradictory, illogical and completely unbelievable.

No wonder TV polls conducted that evening showed that over 60% of viewers didn’t believe him. A true statesman would have genuinely apologised and ordered thorough investigations over the alleged fraud. He would have immediately relieved his officers named in the World Bank report: Rachel Gesami, Caroli Omondi, Mohamed Isahakia, Bernard Wandera and Patrick Chabeda. This isn’t time for scapegoats and political shenanigans!

Kenyans expect their PM to show sensitivity and understanding on matters touching on their welfare, particularly on issues of good governance, accountability, transparency and corruption. They expect and deserve to see that their PM cares about them and would protect the public interest; not his own or his cronies’ interests.

Yet, there he was - defending the indefensible. Instead of defending the public interests, the PM defended his senior staff. Is he in tune with the values enshrined in the Constitution? Is he capable of upholding and implementing the Constitution?

The PM’s admission was in response to a question by the MP for Saboti, Eugene Wamalwa, in which he sought to know how much money has been committed to the KKV project from inception; how much money has been lost through alleged corruption with respect to the KKV; who is responsible for the alleged loss of funds; and whether the PM would be prepared in the circumstances to take political responsibility for the loses.

Mr. Wamalwa’s questions were precipitated by the leakage of the World Bank’s “in-depth audit review” of the Kazi Kwa Vijana Project dated September 13th, 2011. The “audit review” only dealt with phase two of the KKV.

The PM and others have condemned that leakage. Why? How else was the public going to learn of the massive theft if the report hadn’t been leaked? Why blame the heroic whistle blower and not the thieves?

The PM has tried to pour cold water on the allegations. He has essentially said: “yes, millions of tax payers’ money disappeared in my office under my watch...but that’s not theft. Neither my officers nor I are responsible, either...” Well, who is then? Who authorised those millions to be paid out in breach of the law? Unauthorised payment is nothing but theft. Who will take responsibility for that?

The evidence of theft is compelling. This is a grave matter. We can’t treat it casually. It doesn’t and shouldn’t matter who is involved. When it comes to matters of integrity, ethics and public interests – no one is sacred.

Here are the hard facts from the World Bank report:

More than Sh33 million of our money was disbursed to senior civil servants and other ineligible third parties without following existing government and World Bank payment procedures. Millions were paid to unrelated project activities in breach of project legal agreements and Bank policies and guidelines. In many cases, money was incurred in excess of the approved limits.

There were numerous payments made without proper supporting documents in clear breach of government and World Bank financial disbursement policies and guidelines. Other payments were made for contracts that contravened the Bank and government procurement procedures.

In the case of Mrs. Gesami, she was illegally and concurrently placed on both World Bank and government payroll. The PM’s Office deliberately concealed the fact that she was a full-time public employee and misled the Bank into approving her hiring as a “consultant”. She was consequently paid more than Sh5 million on top of her regular government earnings. That was fraud.

The PM’s permanent secretary, Mohamed Isahakia, is cited – directly - five separate times. These are in addition to sixteen other serious alleged irregularities touching on him. He paid Sh1.2 million meal allowances to employees while they were at their work stations. He also irregularly paid Sh173,668 commuter allowance for employees at the PM’s office. He hired 26 unauthorised interns and paid them. More than Sh1.5 million was paid out to unknown and unauthorised persons.

Private companies like Copy Cat Ltd, Parallel Media, ISIS Solutions, DT Dobie, Kenya Shell, Total Kenya Ltd, Morven and Kester were paid more than Sh23 million for unauthorised services rendered to employees at the PM’s office. Retroactive payments were made on fraudulent invoices. Cash payments were made without supporting documents. The PM’s personal secretary, administration secretary and other unauthorised persons were either paid, their personal vehicles serviced and illegal fuel cards irregularly issued. All these amounted to tens of millions of shillings of our money.

Theft is a popular name for larceny. It is an act of stealing. It involves intentional taking of someone’s property without his or her consent. It includes illegal conversion or exerting unauthorised control over property. Embezzlement is theft. So is obtaining control over property by deception or false pretexts. Clearly, Kenyans never consented to the massive theft of the KKV project funds by senior officers at the PM’s office and at other ministries.

It shouldn’t and doesn’t matter the amounts involved. If a robber goes to a bank with a gun and forces the teller to give him Sh100 - by force, false pretext or through forgery - before attempting to flee with the money, it wouldn’t and shouldn’t matter if he is caught before he actually leaves the bank. It shouldn’t matter that the teller might have been deceived or forced to give out the money. Theft would have been established. The thief acted on an intention. End of story!

That’s what happened in the KKV scandal. (Oh yes, that’s what it is!) Those who carried out the massive theft have been caught. They acted on their intentions. They stole public funds. They can’t get away with a slap on the wrist under the pretext of “refunds” of money they stole from us. We must have full restitution, yes. But the thieves must also be severely punished. They should be prosecuted, convicted and sent away for a few years. They cannot continue to hold public office. They lost our trust. They must also be publicly shamed. The culture of impunity must not be allowed to persist.

I am calling for both criminal and political responsibility for all implicated – starting with the PM, his PS, chief of staff, administration secretary, director of policy and all the senior staff mentioned in the World Bank audit report just like I did when William Ruto, Amos Kimunya and Moses Wetangula were on the dock over alleged embezzlement of public funds. Nobody is above the law!

Miguna is an advocate of the High Court of Kenya. He is also a Barrister and Solicitor in Ontario, Canada.