It is curious that government is yet to announce any plan to seal loopholes that encourage theft
Kenyans await to see whether law enforcement organs will get to the bottom of the shocking revelations of grand corruption in the planned construction of Arror and Kimwarer dams.
It is, however, curious that government is yet to announce any plan to seal loopholes without which such unprecedented theft of public funds would not have happened.
No doubt it is good that the DCI and DPP are taking action to ensure culprits are brought to book. In fact, the Assets Recovery Agency has been instructed to get onboard.
On reflection, however, the actions of the DCI, DPP and ARA are ultimately inadequate to protect public funds from similar theft in future or underway in other state agencies.
Indeed listening to opponents of the ongoing anti-corruption crackdown in the dams’ saga the beef appears to be that other dam projects have been spared scrutiny yet they were procured under a similar scheme.
In fact, as one cynic put it at the weekend, the exceptional thing about the Arror and Kimwarer Engineering, Procurement and Construction plus Financing (EPC+F) projects is not the corruption. It was the recklessness and crudity of its perpetrators in leaving their fingerprints all over, from towels and tiles shops to residential and hotel addresses.
Three things need to be addressed in the ongoing anti-corruption war. First, corruption networks reckon that time is on their side because, unless the DPP secures enough convictions over the next two years, the onset of the 2022 political campaigns will kill the momentum of the anti-corruption drive.
Second, in the best of circumstances recovery of corruptly acquired assets is a complex and expensive exercise that recovers just a fraction of the loot. Third, grand corruption is not possible without powerful political godfathers, yet there is no precedent in Kenya of a godfather who has ever been prosecuted let alone jailed for involvement in grand corruption.
The dams mega-scandal raises disturbing questions about whether after a long working day the National Treasury is locked up overnight and, if so, whether in the dead of night the guards let in thieves to cart away loads of gold and silver.
Like in all liberal democracies, Kenya operates under a constitution which provides for checks and balances so that when one organ of government is compromised or goes rogue, the others can help to prevent excessive sovereign harm and protect public interest.
Recent experience in Kenya, however, shows that it is possible for all the organs of government to become dysfunctional simultaneously, thereby making it possible for corruption schemes to be executed with formal compliance with all legal procedures.
As example, the Constitution read with the Public Finance Management Act, Public Procurement and Asset Disposal Act, Privatisation Act and Anti-Corruption and Economic Crimes Act provide for elaborate legal provisions to protect public funds and properties. But in the wake of recent corruption scandals this legal framework is seemingly woefully inadequate.
Article 227 of the Constitution provides that state organs and other public entities shall contract for goods or services in accordance with a system that is fair, equitable, transparent, competitive and cost-effective and proceeds to require Parliament to enact a framework to realise these objectives.
Clearly, the existing legal framework has not stopped the Executive from procurement of expensive foreign loans and resorting to EPC+F projects and opaque disposal of public assets in order to circumvent the systems of checks and balances contemplated by the Constitution.
To my mind, fixing the dysfunction in the system of checks and balances is as important as jailing the culprits and recovering what has already been stolen. The controversy over the proposed scheme to hand over Nairobi’s JKIA to Kenya Airways is one example.
JKIA is a public asset managed and operated by Kenya Airports Authority. Kenya Airways is a strategic public company in which the Kenya government on the one hand and KQ Lenders 2017 Limited and KLM, on the other hand, hold more or less the same number of shares.
Like most Kenyans, I am proud of KQ but I was extremely disappointed to hear of claims that it only owns three out of the 20 aircraft in its fleet. If true, then Kenya Airways is a national carrier only in name particularly now that audit reports reveal that in KQ’s recent history its beneficial owners have been procurement and employment cartels calling political shots. In fact, KQ’s massive Sh220 billion debt is down to mismanagement than bad economic fortunes per se.
Whatever its ownership structure, it is nice to have an airline under our national name and so in principle I am sold to any rational and genuine proposals to salvage KQ. Yet the hostile reaction of the Executive alongside economic consultants and pundits towards the strike by aviation workers and Parliament’s reservation towards the JKIA takeover bid is rather unsettling and raises the following questions.
First, to the extent that KQ is partly a public company and JKIA is a strategic public investment, why should concerned stakeholders objecting to the takeover of JKIA be tear-gassed?
Secondly, if the takeover bid is above board why can’t the Executive secure parliamentary approval for it? Thirdly, with JKIA takeover now in the mix, did the KQ Lenders 2013 Limited pay sufficient or fair consideration in terms of debt conversion to equity to acquire 38.1 per cent of our national carrier?
Fourthly, by whom and under what circumstances was the concession fee fixed and could it, in the long run, translate into unjust enrichment of private individuals to the detriment of Kenyans.
Finally, should a strategic asset like JKIA, which has been built with huge and expensive loans, be transferred to a public company without an express legal framework enacted by Parliament as the people’s watchdog?
No doubt, there are many other questions which must be asked now otherwise 10 years from now the dams mega-scandal might turn out to be kids play. In the meantime, Kenyans should take solace in the constitutional assumption that when everyone else goes rogue the President shall be the last man standing for the Kenyan State.