In fact, if he were alive today, he would remain the wealthiest man, but would also be the most troubled. He was the first person on whom the title ‘billionaire’ was used to describe his fabulous wealth at a time when the average American lived on what seems a pittance today.
Much of his wealth was corruptly acquired and was the subject of an expose by journalist Ida Tarbell, the daughter of a former partner, whom he had defrauded. Then the cases came. Trying to get him to court, however, was exceptionally difficult. In his lifetime, he kept dodging subpoena after subpoena and outside his various mansions, process servers set up camps, but just couldn’t serve him. He retired in 1911 after Tarbell’s work finally brought him in and the US Supreme Court broke up his trust. But he was never jailed and continued to enjoy his wealth, though he had given away much of it by the time he died in 1937 aged 97. In the way he escaped the law, many came to question whether there was justice for the poor and another for the rich. That, however, is what we have seen in the past few years in Kenya. In fact, there is a raging debate on whether the poor pay more for their crimes than do the rich.
JUSTICE FOR THE RICH
Kenya has lately been dragging power-men to court. The much-maligned EACC has been trying to justify its existence by placing powerful individuals on the dock to answer to various crimes against the public. After spectacularly failing to get individuals in its own “List of Shame” to court, they have now tried to salvage themselves with various arrests and prosecutions. And the new DPP Noordin Haji has not disappointed.
Busia governor Sospeter Ojaamong only recently had his day in court, while former Nyandarua governor Waithaka Mwangi was also on the dock to answer to charges levelled against him for what he did while in office. Then this week, we had former Nairobi governor Evans Kidero being arrested over actions during his tenure in office. He denied charges of abuse of office, money laundering, bribery, conflict of interest and failure to protect public property and released on a Sh2 million cash bail. These are not small men. They are people who would not sweat the small stuff.
At the height of his power, Kidero’s financial assets and holdings in a charitable organisation run by his wife awed the public. He has had his day in court before, but mostly to defend his interests and all along, he got what he wanted. But is this enough?
POWER AND MONEY
There is something about having money and getting away with crime. In fact, you can almost get away with anything under the sun as long as you have money. In fact, an old saying goes: “Save money and money will save you”. Even time itself seems to obey money. The moneyed seem to get away with practically anything, including murder. There is a sense in which it is difficult to get them pay for their sins. For selling cat meat, James Kimani of Nakuru got three years within a day of attending court. But for defrauding Kenyans of billions, Kamlesh Patni is still quietly enjoying his billions. The Ngiritas of Naivasha and Perry Mansukhlal of the tragic Solai Dam, though facing charges, are still enjoying their freedom and it will not be a great surprise if they get away with it.
Various individuals, including politicians are still walking free, yet they have been mentioned in mega corruption scandals in this country. The list is long, very long indeed. And the scandals, too, are many. In the last five years of UhuRuto, we have been treated to sensational reporting of scandals with figures involved looking like those of football player transfers in the European leagues. Not a single ‘big fish’ is in jail. Some have gone on to ‘sanitize’ themselves in public office and are some of our politicians of note.
What would Josephine Kabura say to James Kimani? Even after publicly confessing to carrying lots of looted cash in sacks, she is still out there, while Kimani is eating beans behind bars. Kimani was sentenced the following day after he was arrested with cat meat, while Kabura is yet to stand in the dock, several years later. Many wonder if there is something wrong with our laws, or it is that the rich who have a way of compromising justice.
There seems to be a ‘revolving-door’ justice system involving the rich. They enter through one compartment of the door and out on the other side, remaining in the same compartment as the spindle keeps turning. And the spindle seems to turn faster for the poor and ever so slowly for the rich. Some have opined that they have the ability to pay their way across the corridors of justice — hiring the best lawyers and of course judges. These lawyers are adept at dilatory tactics, ensuring the cases drag on and on and in some cases, the judges play along. Purchasing justice in Kenya had become so lucrative that a radical Judiciary surgery had to be carried out to save the situation. It was not easy, and even now, it is not easy to point out why cases involving the wealthy seem to be dropped for lack of evidence or if convicted, it will be with much lighter sentences or with fines.
DEMOLITION OF BUILDINGS
Another agency that has been in the public limelight is Nema, which has spectacularly brought down buildings built on riparian reserves. Again, the rich and the powerful seem to be spared in this latest crackdown. Nema seems to target buildings associated with less powerful individuals. It brought down the iconic Kileleshwa Shell petrol station and part of the building that housed Nairobi Java House. However, the block of apartments right next to it were left untouched. The station, which has been standing there since the colonial days, came down, and for many it was the end of an era. Older Nairobians remember it was the Kileleshwa Esso Station but nobody bothered with it at that time. It was ironical that it got demolished when all the surrounding buildings that came in in later times are standing intact! Nema has promised further demolitions. While we welcome this new drive, there has got to be equity in all.
Another case of rich-poor justice disparity is the Mau Forest evictions. The government-led removal of people living in the complex has only dwelt on the poor. There are many powerful individuals with huge holdings in land within the forest complex but are sitting pretty, knowing nothing will happen to them. The holders of land in Mau are not small men. I need not waste your valuable time mentioning their names but you don’t need to look to far to know which power-men hold land there. They will not be touched.
If we are to build an equitable society, they too must have their day in court. In fact, the EACC would not be able to comfortably account for its existence in the last few years having not dragged the big fish to court. We do not have a shortage of laws; in fact we have more than we need. The Constitution has not been properly applied in fighting corruption. The Anti-Corruption and Economic Crimes Act (2003), which is the flagship anti-corruption legislation, has yet to give us the results for which it was formulated. There are other relevant laws such as the Public Officer Ethics Act (2003), which regulates, among others, performance of duties, gifts to public officers, conflict of interest among others.
We also have the Public Procurement and Disposal Act (2005), which regulates among others the procurement of materials, works and services and tendering procedures, among others. We also have the Public Service Code of Conduct and Ethics, which regulates such things as collections and harambees, care of public property, political neutrality among public servants, nepotism and favouritism, employment etc. Then the Government Financial Management Act (2004) that regulates public finances and government spending. All of these and others, are designed to fight corruption. But we are still ranked some of the most corrupt nations in the world.
MONEY AND JUSTICE
In the end, we may bring down the buildings, evict those living in riparian or forest reserves and we may also drag the high and mighty to court, but the net result is that the rich still get away with it and the poor will take the guillotine.
Getting rich is difficult in a country such as ours, and when one gets there (usually to them the means justifies the end), they want to remain there as long as possible. As I have stated before, corruption is a distortion of the already imperfect mobility of money (movement from those who have to those who don’t) and this makes it sense to use some of it to remain where one is. In the process, it creates wealth (for few individuals) and the resultant comforts enjoyed by the money are hard to part with. And something ‘small’ like the law does not always stand in the way of the moneyed. This is by no means unique to us in Kenya. In America, African-Americans hold the unshakable belief that they are unfairly victimised by the justice system. While their arguments are on racial lines, the underlying issue is money. There is justice for the poor and another for the rich.