Uhuru, Matiang'i on the cross as Ruto mulls state capture probe

Former President Uhuru Kenyatta and top guns in his  administration could soon be put on their defence for their acts of omission and commission while at the helm of state power.

The Star has established that a State Capture Commission of Inquiry is in the works to probe claims of abuse of power by top officers in the former regime.

Kenya Kwanza is at the final stages of drafting the law that would lay the basis for the commission of inquiry.

Sources intimated that the legal framework would be ready by March or early April to pave the way for the inquest that is likely to trigger political fireworks. 

Apart from Kenyatta, former Interior Cabinet Secretary Fred Matiang’i, Kenya Defence Forces chief Francis Ogolla, and immediate former Interior Principal Secretary Karanja Kibicho are likely to face the commission.

Many other government officials believed to have played a part in “state capture and cronyism” in the Uhuru era would also be invited to appear before the probe team.

National Assembly Majority Leader Kimani Ichung’wah said the proposed framework would be moved as a private members’ bill.

For the House leader, the probe would help unearth how “state capture” was used in manipulating tenders, advancing the interest of private businesses.”

The inquiry will focus on among others claims that top officials used their powers to irregularly award tax exemptions, especially to foreign firms, as well as evading tax.

Top Kenya Kwanza honchos many times claimed the waivers benefited the firms' local beneficial owners represented in the foreign entities by proxies.

Ruto’s team has also alleged in some forums that some money was drawn from state coffers and carted away in sacks in the last days of the previous administration.

After assuming office in September 2022, Deputy President Rigathi Gachagua said they found empty coffers at the National Treasury.

Government functionaries have further claimed that state capture was at play in the buyback of Telkom Kenya, linking the beneficiary firm to top Jubilee officials.

The events that played out at Bomas of Kenya moments before IEBC declared Ruto winner of the 2022 presidential race are also expected to feature in the probe.

Claims have been rife that top state officials attempted to alter the election results in favour of ODM leader Raila Odinga.

During the 2022 campaigns, President Ruto said he had no intention of prosecuting his predecessor.

DP Gachagua was clear that Kenya Kwanza would go after individuals linked to state capture and conflict of interest.

Way before the elections, the United Democratic Alliance members said they would probe the events once they assumed power.

President Ruto and his team announced the plan in their manifesto in the contest with Raila’s Azimio side.

It suggested a quasi-judicial public inquiry “to establish the extent of cronyism and state capture in the nation and make recommendations.”

Past commissions of inquiry have recommended investigations against persons of interest - including criminal probes - the only question being on implementation.

The developments have stirred political debate, with the opposition saying they read witch-hunt and a wider scheme to circumvent the courts.

ODM leader Raila Odinga accused President Ruto and his men of actions that border on state capture, saying Parliament is already a victim.

“Ruto has captured Parliament. Having captured Parliament, he now wants to intimidate, subdue and capture the Judiciary,” Raila asserted.

Busia Senator Okiya Omtatah also claimed recently that the current government was executing state capture, citing the National Treasury as yet another victim.

Jubilee Secretary General Jeremiah Kioni said, “They are going round the Judiciary. This is another way of subverting the independence of the Judiciary.”

“The aim is to stop people from going to court,” he told the Star in an interview, adding that “the commission’s life would come to an end when they are done with their persecution.”

Kioni described the proposed law as one targeting an individual, holding that such cannot stand the test of constitutionality, and amounts to discrimination.

“This is a witch-hunt. The law will not stand the constitutional threshold. They are looking for a commission that can advance what they cannot achieve within the existing law.

“They want to tailor it to suit a given purpose. We already have laws that can deal with individuals. If it is about immunity, the former President is not shielded from any law,” the former Ndaragwa MP said.

Rarieda MP Otiende Amollo also held that existing institutions can deal with the issues in question.

“There are entities that can do the inquiry lawfully. Any commission that deals with human rights such as the Commission on Administrative Justice (Ombudsman) can do that.”

“For any inquiry to be objective, it shouldn’t be seen to be a witch-hunt because otherwise it serves no purpose,” Amollo said.

The lawmaker said, “The easiest way to do such an inquiry is that the Ombudsman can start on its motion or if requested by any person.”

The senior counsel pointed out that the proponents must be clear from the start whether the probe team would be a commission of inquiry in its traditional sense or a parliamentary commission.

Amollo, an established constitutional lawyer, further explained that the scope of the inquiry has to be clear, adding that a probe cannot start from a conclusion.

“State capture is a conclusion. In any inquiry, you don’t start with the conclusion but the scope - what do you want the inquiry to cover, what period, what institutions, and then issues,” he said.

He argued that the state “cannot purport to set up an inquiry to look into historical issues” but should set a period from which all issues - up to the current times - would be reviewed.

“You can say from a given period but it has to come to the present. I would want an inquiry on the edible oils deal of Sh16 billion, weird oil imports where the lady was claiming Sh17 billion, the Kemsa issue, how we can contribute money to housing levy without any law, and so many other scandals that have come in the last one year for which no one seems to have any answer,” Amollo said.

For the opposition, the current government is already a suspect of state capture, with players naming the TSC, PSC, IEBC, and Parliament as already under the clasp of the Executive.

Even so, the revelations could spell trouble for Uhuru and Raila's allies should the inquest proceed, especially on the elections.

Several allies of the two leaders, including members of the powerful National Security Advisory Council, were adversely named for attempting to overturn Ruto’s victory.

Former IEBC chairman Wafula Chebukati when he faced a judicial inquiry into the events post-August 9, 2022 elections put several senior figures at the centre of the saga.

Chebukati dragged the names of former Cabinet Secretary Raphael Tuju and members of the National Security Advisory Council into the fray.

He named former Office of the President Principal Administrative Secretary Kennedy Kihara, then Solicitor General Kennedy Ogeto, then Inspector General of Police Hillary Mutyambai and Ogolla – then Vice Chief of Defence Forces.

During the Supreme Court hearings, NSAC rubbished the poll manipulation narrative saying the team only met Chebukati to discuss the security situation in the country.

Governance expert Javas Bigambo said, “It is easier to blame the devil than the dark blue sea. Uhuru messed himself up by displaying hangovers of political power and influence.”

He added, “President Ruto should deal with Uhuru and Raila decisively. The underdog is what makes saints and soldiers ...not lovers of loyalists.”