The Kenya courts are not famous for jailing corruption suspects. This is precisely why last week President Uhuru Kenyatta challenged the Judiciary to support the war on corruption with more conviction of suspects and recovery of stolen public funds and properties.
Therefore from a public interest standpoint the Judiciary should be applauded for the conviction and subsequent jailing of Sammy Kirui, John Gakuo, Mary Ng’ethe and Alexander Musee for the 2008 Nairobi cemetery scandal in which Sh280 million was lost.
The truth however is that for whatever reasons there was little applause for the jailing of the four formerly senior public officers, and to me Gakuo was the main reason. Here is why.
Between 2004 and 2009, when Gakuo served as the Town Clerk of Nairobi, he helped to instil discipline, tame impunity and laissez-faire operations at City Hall besides bringing order in the city and cleaning it up.
Here is a man who personified the virtues and ideals of responsibility, commitment to serve, discipline and honour that should be the hallmarks of all senior public servants.
By the works of this man we learnt that Nairobi does not have to be run like a village and he validated the memories of Nairobi as the green city in the sun.
During Gakuo’s five-year tenure numerous corruption schemes were designed and executed, and in all probability the architects and beneficiaries will never be jailed let alone die in jail.
It is not by coincidence that the cemetery land scam is the only notable scandal that made its way to the courts.
Given that Lang'ata Cemetery had been full for more than a decade in 2008–09 the need arose for procurement of land for a cemetery.
The Ministry of Local Government would provide funds to procure the land but the actual procurement was to be undertaken by the City Council of Nairobi.
This is why Kirui, who was the Permanent Secretary (and accounting officer) of the Local Government ministry, found himself in the thick of things.
Ng’ethe was the chairperson of the Tender Committee and Alex Musee was the secretary.
As Town Clerk, Gakuo was the accounting officer of the City Council. The Minister for Local Government was Musalia Mudavadi.
When the scandal first erupted it bore the tell-tale signs of ministerial malfeasance but to his credit Mudavadi, with Raila Odinga’s help, was able to shake it off leaving the civil servants to carry the cross and that is the point of interest here. Since the Kenyan Shilling is fairly strong, it is virtually impossible to steal Sh100 million from the public without some level of complicity from a Cabinet minister.
However, ministers are not accounting officers and more often than not they wield political power and occasionally they may not be prosecuted without risking civil war or political disturbances.
Consequently, although in order to execute a grand corruption scheme a criminal enterprise involving a minister is crucial, Kenya’s financial accountability system is founded on the fiction that accounting officers have the final word on the matter and presumably should prevent such schemes from happening. Conceptually, this is the fiction that landed Gakuo in jail and ultimately consigned him to death.
Without attempting a posthumous defence of Gakuo, it is important to point out that he was not charged with stealing public funds but failing to prevent it. In other words his was a crime of omission not commission and knowing the key facts it makes me wonder how exactly he was supposed to prevent a crime in which, in all probability, his bosses were members of the criminal enterprise.
To be sure, in his judgment Nairobi chief magistrate DN Ogoti found as a fact that because Gakuo was the accounting officer, he should have stopped the tendering process when questions were raised about it but he wilfully neglected to terminate a flawed process as empowered by law.
On paper all this sounds nice but could a town clerk really terminate a tendering process the mother ministry was all too eager to seal and empty its accounts? What is more disturbing about this judgment is this: If Kirui was charged as the accounting officer of the ministry entrusted with the money, was it rational to assume Gakuo was simultaneously responsible for the same money? These questions will be buried with Gakuo, now that death has denied him a chance to raise them before the High Court. However, there are three lessons from Gakuo’s tragic fate for the rest of us.
First, in a country with few capable, upright and honourable senior public servants, it hurts when one of the most recognisable exceptions is convicted on a virtual technicality and ends up dying in jail. Second, if the war on corruption will not target the patrons of criminal enterprises within and outside government, there is a danger that responsible public servants such as Gakuo will end up being cannon fodder.
Third, in the same way that prosecutors avoid taking to court suspects who might instigate civil war, it may also help to avoid prosecutions that end up serving rough justice and deepening public cynicism. The way I see it, the occupational hazard of serving as an accounting officer should not be so steep as to frighten good people from taking up such positions.
The writer is a
Constitutional lawyer