FIGHT AGAINST WAR ON GRAFT

From attacks on anti-graft agencies to intimidation, corruption is fighting back

Many among the political class have been implicated in scandals involving billions of shillings

In Summary

• In the fight against corruption, there will always be resistance and indeed a push back.

• Sad to say, some of these politicians have gone so far as to try and disband the agency mandated to fight graft.

Corruption in government
Corruption in government

It's been a few weeks since Kenya took drastic measures towards stemming the coronavirus global pandemic.

Our politicians have since gone from daily dominating the front pages with their rhetoric to a noticeably eerie silence. Aside from platitudes to the public and calls for citizens to heed guidelines given by the Ministry of Health, there is very little politicking going on, and perhaps this is for the best, given the uncertainty of the times.

However, let us not forget that many among the political class have been implicated in scandals involving billions of shillings, and prior to the Covid-19 outbreak, they were using all sorts of tactics aimed at confusing the public as to their culpability.

In the fight against corruption, there will always be resistance and indeed a push back.

Sad to say, some of these politicians have for various reasons tried to disband the agency mandated to fight graft. In June 2018, Aldai MP Cornelly Serem tabled a bill seeking to disband the EACC. The amendment bill seeks to repeal Article 79 of the Constitution that created the anti-graft agency.

Part of the bill reads: “EACC has demonstrated a failure to address issues under its mandate leading to the current rampant cases of corruption in the country.”

According to their 2017-18 report, the EACC had received and processed 6,235 complaints and allegations on corruption and unethical conduct. Out of these, the commission took up 2,898 cases that fell within their mandate for investigation.

Upon investigations, the EACC proceeded with 1,510 cases, of which they recommended 113 cases for prosecution by the Directorate of Public Prosecutions. The EACC’s annual report has documented the work they do and what falls within their mandate and the actions taken. Clearly, Serem’s bill was in bad faith.

Without any sense of irony, in March 2019, Jubilee MPs and Deputy President William Ruto discredited the Directorate of Criminal Investigations after they reopened a case from 2011, in which DP Ruto was charged with fraud over the sale of Sh272 million non-gazetted forestland to Kenya Pipeline Company.

They argued that the DCI lacks backing by law to probe economic crimes, adding that it should hand over investigations to the EACC.

Essentially, whenever one institution under the anti-corruption multi-agency team starts investigating economic crimes, prominent members of the political class attempt to impede progress, citing their counterparts, all in an effort to delink the efforts of the agencies in the joint fight against graft.

In addition, prominent individuals implicated in corruption will use their tribal affiliations to sanitise themselves and pitch their communities against the authorities.

The “mtu wetu” phenomenon has become such a norm that even the lower cadres in public offices use this tactic to evade public scrutiny. It's become part of the culture of corruption in Kenya for an accused person to declare that his particular ethnic community is being targeted in a purge.

Accusations of tribal targeting from politicians affiliated with DP Ruto became so frequent and egregious; that in March 2019, DPP Noordin Haji set the record straight on the nature of cases he is prosecuting.

Haji made public the list of shame he compiled since he assumed office in April 2018 on Citizen TV. In the list of 415 people, suspects from the Kikuyu tribe were the majority at 141, the Luo came second with 56, and while Kalenjin tribe was third with 46.

Other tribes taking top positions in the list were Kisii, Mijikenda/Swahili, Kamba and Luhyas with 37, 34, 31 and 29, respectively. Evidently, corruption cuts across the board and there is no ethnic profiling by the DPP in the pursuit of suspects.

When trying to evade prosecution, some politicians will go so far as to destroy evidence, resulting in fires at their finance or county offices.

These arson cases are labelled “mysterious fires” by the press, and often the perpetrators escape justice. In one county, after investigators from the EACC raided the offices and left with evidence they sought in connection with allegations of a loss of billions through impropriety by senior county officials there was an arson attack. One suspect was arrested in connection to the fire at the time.

In yet another county procurement offices were gutted, leaving the county without receipts for expenditures worth more than Sh1 Billion, according to the then Auditor General, Edward Ouko. In a third county, Finance and Economic planning offices were razed in yet another mysterious fire. In a fourth county, fires gutted the county Finance offices, at a time when the EACC was investigating two corruption cases there.

In 2018, the Auditor General reported that Kitui government had operated about 14 illegal bank accounts under the then Governor, Julius Malombe.

In one case, the county’s water master plan where Sh13 million was paid to a contractor for work not done and the second case involved Sh56 million paid through proxies, to three companies allegedly owned by a senior accountant between 2015 and 2019.

Evan, Draccy and Lovianna enterprises, according to the EACC, are owned by the wife and brother to the senior accountant. Notably back in 2018, Busia Governor Sospeter Ojaamong' and nine others were arrested by EACC officers in connection to a Sh8 million loss from the county coffers through questionable contracts.

In Kisumu County the EACC wrote to the county assembly summoning seven Kisumu employees for questioning over alleged corruption, abuse of office and falsification of academic certificates.

In addition to this, the commission also asked for September, October and November 2019 payrolls of all assembly employees. There were also questions over misappropriation of funds.

“On November 1, 2019, we received an original cashbook for the period of August 2018 to June 2019. We wish to advise you that we are holding onto the original cashbook for our ongoing investigations,” EACC said in their letter to Kisumu County Assembly.

There are more insidious ways in which corruption fights back and this often happens when the EACC presents cases to the Judiciary.

In the case against former Transport and Infrastructure CS Michael Kamau, several incidental factors came to play, culminating in a ruling that has far-reaching consequences. Kamau was implicated in a questionable Sh33 million tender.

When the EACC first recommended charges against Kamau in 2015, it had undergone an internal upheaval with all commissioners resigning between March and May 2015. This technicality was later used by the Court of Appeal to dismiss the charges, stating that "the appeal succeeded following this technicality. The Constitution is very clear that EACC can only be properly constituted to perform its duties with at least three commissioners".

Any decision made without commissioners is null and void.”

When considering the statutory interpretation in this case, it is clear the judges interpreted the law in a literal and ordinary sense, without taking into consideration that though the EACC did not have its commissioners at the time, its work was still ongoing.

Due to the three-month period, the ruling made in Kamau’s favour not only released him from the charges but also jeopardised the investigations that had already been done.

This has been an incredible setback in the fight against corruption. The ways in which corruption fights back become even more layered and dark due to the relationships lawyers for the accused have with the courts.

Many high-profile cases involve prominent people who use the same money they are accused of embezzling to hire the most influential lawyers in the country.

Former Nairobi Governor Evans Kidero and eight others were accused of conspiring to commit fraud, leading to the loss of Sh213 million between January 16, 2014 and January 25, 2016.

They allegedly authorised payments to various companies for services not rendered. The magistrate’s court ruled to omit crucial bank statements as part of the evidence citing a technicality.

Chief magistrate Douglas Ogoti ruled that the prosecution should have sought permission from the court before tabling the documents. Ogoti said it was clear that the document had not been supplied to the defence and the DPP and wondered whether it was an oversight by the investigating officer.

This, of course, impacted the testimonies by witnesses who also referred to the same statements.

Kidero’s lawyer is Tom Ojienda, who himself has faced corruption charges, and on March 18, 2015, the chief magistrate's court in Kibera issued warrants to the EACC to investigate his bank accounts.

EACC had moved to court, seeking to investigate some Sh280 million legal fees paid into the lawyer's account by Mumias Sugar. In 2016, Justice Isaac Lenaola — then a High Court judge — quashed a warrant allowing the agency to investigate Ojienda. Lenaola ruled that the probe is a violation of the law. It is worthy to note that later, Justice Lenaola was appointed to the Supreme Court, an appointment enacted by the JSC of which Ojienda was still a member.

In 2019, judges Justice Roselyn Nambuye, Patrick Kiage and Sankale ole Kantai of the Court of Appeal upheld the High Court decision which invalidated the warrant to investigate Ojienda.

The Appellate court ruled that EACC failed to issue a notice to Ojienda and opted to just get a warrant to investigate his accounts. This was another literal interpretation of the statute, and so far-reaching that the procedures involving obtaining evidence via secret warrants by the EACC since creation in 2005 all came into question.

The use of secret or ex parte warrants had been in force for 15 years.

Even more disturbing is the fact one of the Judges in this particular case, Justice Sankale Ole Kantai was later arrested as a co-conspirator in the investigation of the Murder of Billionaire Tob Cohen.

Could his decision in the case be a matter of pre-emptive self-preservation, given how far-reaching it was? It's a matter to consider, given the devastating result of the Ojienda case.

Justice Mumbi Ngugi in 2019 made a ruling that sharply contrasts the decision of the Appellate court: "In my view, the Appellate decision was limited to provisions of Anti-corruption and Economic Crimes Act (ACECA) and cannot extend to provisions of the Criminal Procedure Code (CPC). To hold otherwise would deal a death blow to the investigation of any offense, not just economic crimes".

Her application of the golden rule of statutory interpretations, which is applied where a literal approach to the statute would lead to an absurdity, ought to be more commonly applied by the Judiciary.

Corruption does fight back. This is a statement of fact, considering the sort of aggression our institutions face as they attempt to dispense their mandate. The different forms of attack on the people charged with investigating cases, from using the press to disparage their efforts to intimidation, influence and otherwise exploit conflict of interest within the Judiciary, all indicate this is a war that is hard-fought, and every case prosecuted a triumph of its own.

Ordinary Kenyans can take up the rallying call for accountability, and push back against the perpetrators of graft, for the good of the nation.