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Governance: Kenya’s anti-corruption car crash

By Honoré Banda in Nairobi
Posted on Thursday, 27 August 2015 14:48

Despite the headlines about high-profile probes and charges for political and business corruptions, impunity is flourishing in Kenya. Indeed, some claim the anti-corruption effort is being sabotaged by government insiders.

Politicians on all sides agree that corruption has risen to unprecedented levels since President Uhuru Kenyatta’s Jubilee Alliance government took over two years ago.

President Kenyatta is visibly angered by the stream of reports of fraud, bribery and theft of state funds. In his annual State of the Nation address in March – when he painted a rosy picture of the country’s economy and security position – he conceded that the failures on corruption were the biggest blot on the government’s record.

Kenyatta lamented that the rot goes right into his office and swears to fight it. He gave parliament a previously confidential list of 175 top public officials under investigation for corruption by the Ethics and Anti-Corruption Commission (EACC), among them five cabinet ministers and 12 county governors.

After launching his critique of officials and the organisations that are meant to stop corruption, Kenyatta won a standing ovation from government and opposition benches. That was a first for him in Nairobi’s legendarily partisan parliament.

However, a great muddying of the corruption fight started soon after Kenyatta’s swashbuckling moves. A huge blow to accountability came with the disbanding of parliament’s public accounts committee (PAC) in April.

Embezzlement

Again, there is a political trail in this crisis. The PAC’s woes began just as it was about to table a report into the embezzlement of KSh2.9bn ($320m) in the office of the president just before the 2013 elections.

The committee’s report named Mutea Iringo, former permanent secretary for security, along with other senior figures. Few expect the new committee to pursue those claims with much vigour.

In March, Kenyatta had asked the 175 named officials to step aside until investigations are completed. The governors declined, pleading constitutional protection; the rest complied. Kenyatta gave the EACC 60 days to wind up investigations and commence the process of charging the culprits in court.

Kenya was ranked
145th out of 175
in Transparency
International’s 2014 Corruption
Perceptions Index.

So far, so bad – at least for the officials charged with conducting the investigations. A month after Kenyatta attacked the corruption scourge, the EACC fell into chaos. Parliament and its justice and legal affairs committee, in which the ruling Jubilee Alliance has a clear majority, recommended that Kenyatta purge the EACC in April.

Accordingly, chairman Mumo Matemu and deputy chairwoman Irene Keino were suspended and then resigned. Kenyatta then appointed a special tribunal of four people, led by retired judge Jonathan Havelock, to probe the two for “unethical conduct and gross violation of the law”.

A third commissioner, Jane Onsongo, quit office in late March. She cited threats from unnamed officials in the office of the president. This effectively leaves the EACC without any commissioners.

They are its policy-making arm and the only officials authorised by law to forward cases to the director of public prosecutions. In late June, legislators were also debating new reforms to strip EACC commissioners of much of their power and to strengthen the body’s secretariat instead.

The anti-corruption drive has hit a road block, and the EACC missed the 60-day deadline. EACC chief executive Halakhe Waqo has assured Kenyans that investigations and charges will continue regardless.

But legal experts say the charges are likely to be dismissed in court on the technicality of absent commissioners. Opposition politicians and activists claim this is all a deliberate plot.

The 175 cases were at an early stage of investigation when the list was tabled in parliament. Kenyatta’s personal assistant, alter ego and nephew, Jomo Gecaga, had asked EACC chief executive Waqo for “a brief on the status of investigation on corruption cases” in mid-March.

As Waqo told a Senate hearing: “The report was confidential and only intended for the President’s consumption. I did not foresee it being made public.” But, after meeting with deputy president William Ruto for five hours, Kenyatta decided to make the report public without notifying his closest colleagues, some of whom were mentioned in it.

The dismissed EACC commissioners were at war with each other long before they were sent home. Keino and Onsongo signed a petition for the dismissal of Matemu last September, accusing him of being keen to enrich himself through his position. In January, however, Keino recanted and made peace with Matemu.

Soon after, Matemu dismissed Waqo’s deputy in charge of investigations, Michael Mubea, for poor performance. Waqo immediately reversed that decision.

Regardless, the commissioners suspended Mubea in late April, saying Mubea concealed details about the sale of the EACC headquarters, a controversial building once owned by Nicholas Biwott, ex-President Daniel arap Moi’s right-hand man. All this has confused and demoralised the 264 officials at the EACC.

Police misdeeds

The situation is worse still with the Kenyan police. Following the Al-Shabaab massacre of 147 students at Garissa University College on 2 April, local journalists reported collusion between local police and Al-Shabaab agents.

Residents of Turi – about 190km west of Nairobi – complained in late April that policemen sent to guard an international school against terrorists were mostly interested in extorting bribes from passing motorists.

Questions also remain about the independence of Kenya’s courts despite the establishment of a special tribunal to vet judges. In April 2010, the chief justice of Jersey, a British dependency and tax haven, issued a warrant for the extradition of former finance minister Chrysanthus Okemo and former Kenya Power managing director James Gichuru to face 51 charges of fraud, money laundering and accepting bribes from multinationals.

Okemo and Gichuru fought the extradition in Kenyan courts, insisting they could not get justice in Jersey. After a ruling in favour of extradition by a Kenyan judge in 2013, the defendants appealed and the case has been pending in the Court of Appeal for the past two years.

Meanwhile Felix Koskei, the cabinet secretary for agriculture, nominated Okemo to the board of the Kenya Seed Company last March. That prompted more accusations of official impunity. Koskei is also on Kenyatta’s list of 175 top officials facing investigation.

Other institutions are also flailing. The government has sharply cut the budget for the auditor general’s office and undermined the powers of the ombudsman’s department to enforce its recommendations.

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