Gitobu Imanyara

Speech Title: NARC GOVERNMENT'S COMMITMENT TO THE FIGHT AGAINST CORRUPTION, by Gitobu Imanyara

Venue: The Stanley Hotel, August 5, 2004
Date: Tue, Aug 31, 2004


SYSTEMS AND STRUCTURES SET UP BY THE GOVERNMENT TO FIGHT CORRUPTION: HOW EFFECTIVE AND WHAT MORE CAN BE DONE?

Remarks made at a Public Lecture organized by the ICJ Kenya on Thursday 5th August, 2004 at the Stanley Hotel.

Gitobu Imanyara, an advocate and former Member of Parliament.


Systems and structures set up by the government to fight corruption. How effective and what more can be done to stem corruption? My first reaction when I received the invitation to be a discussant at this function was: What systems and structures?
Because I will and cannot be "neutral" in such a discussion let me begin by declaring my interest in the matter. I come from that much maligned area of Mt. Kenya known as Imenti and more particularly Imenti Central which I represented in the last parliament.

It is a constituency that has given us the current power brokers in the Kibaki administration: Ambassador Francis Muthaura the Head of Public Service and the Secretary to the Cabinet, the newly appointed Director of the Kenya Anti Corruption Commission Mr. .Justice Aaron Ringera, Permanent Secretaries Gerishon Ikiara and Erastus Mwongera, High Commissioner to India Ambassador Mutuma Kathurima, the man in charge of presidential security, the chairman of the Kenya Law Reform Commission and a host of other dignitaries in various arms of government. None of these gentlemen, you will notice there are no women, is a relative to the much hated and/or loved Minister for .Justice & Constitutional Affairs Kiraitu Murungi, as has been alleged.

Given this galaxy of players in our current political dispensation and in keeping with the "our own" mind set that characterizes political debate in this country should I not be expected to say that there is no corruption in Kenya today and hence "no need" for introducing any systems or structures? One must wear ethnic blinkers and therefore have an ethnic perspective on all issues or so it seems these days. For those who see corruption, there is corruption because their kinsmen are not "eating". Those who see corruption are disgruntled elements who can see nothing good. Who is Imanyara to talk about corruption anyway?

Isn't he the same Imanyara who was jailed and struck of the roll of advocates in the Moi era? Isn't it the same Imanyara who was arrested countless times and detained for "seditious" and other anti establishment writings? (They have even accused me of "escorting" people to State House to secure deposits for the collapsed Euro bank from the National Health Insurance Fund). Oh! Imanyara is simply unhappy with the current government because he expected to be appointed something. We shall deal with him in due course. Just as Moi did. Is this not, for example, the reason, after all, why Raila is "subverting" the Kibaki government? Because Kibaki has failed to honour the MOU and appoint Raila Prime Minister?


Why do Kenyans continue to refuse to accept to see the truth which is that the so called fight against corruption is nothing but a political tool, to advance the cause of a narrow minded kleptocracy that rules the country today.

I warn you that what I am going to say will probably raise temperatures but perhaps not to the same levels as those attained by British High Commissioner Edward Clay or my good old friend Smith Hempstone when he was US ambassador to Kenya in the early 90's.

The truth of course is that all the so called efforts to put in place "structures and systems" are not based upon any realistic commitment to eradicate corruption but solely to appease the "development partners". There is absolutely no commitment on this government to fight corruption. If there was even the feeblest commitment, no person adversely mentioned in the on going Goldenberg Commission of Inquiry would be sharing government secrets at Cabinet meetings. What message is President Kibaki sending to Kenyans when the assisting counsel he has appointed to the Commission lead evidence adversely mentioning officials who served in the government kicked out of office because of institutional corruption and the following day he appoints them ministers in his government? If Moi followed Kenyatta's footsteps in institutionalizing official corruption, then Kibaki is more "Nyayo" than Moi.

How can a government elected to replace an alleged "corrupt" government return the people running the defeated government back to government as cabinet ministers? This is a betrayal of unpardonable proportions. I would go as far as submitting that the appointment of non NARC MP's into President Kibaki's government under the guise of a government of "national unity" is the boldest statement by the President that this professed commitment to fighting corruption is a cruel hoax. As Kenneth Matiba would say; 'it is a big joke'.

Allow me now to say something about the specific instances cited as examples of this government's commitment to fighting corruption.

The Anti Corruption and Economic Crimes Act is a donor induced piece of legislation
representing at best a half-hearted measure that is incapable of achieving the ideals set out in its preamble. To begin with, those charged with the responsibility of enforcing the Act, with perhaps the exception of John Githongo, pay only lip service to its provisions. The Minister in charge is seen as aloof, arrogant and driven by a passionate zeal to settle scores with perceived enemies of the Democratic Party. He has proved himself to be totally incapable of detaching his official role from that of advancing the Democratic Party's aim of securing the next general elections without what is seen as LDP's nuisance inconveniences.

It is no coincidence that as I talk to you now, a minister of state in charge of the "special programme" of reorganizing the Democratic Party is having a meeting of DP representatives from Mt. Kenya region at this same hotel. This is going on even as the President is using the hallowed grounds of State House to meet with MP's from the same Mt. Kenya region to prepare groundwork of how to use the just started parliamentary recess period to inform the region of new political arrangement ensuring that "GEMA" rules forever. The President has fabulously succeeded in marginalizing an entire region and made those of us not sharing the DP agenda of ethnic chauvinism to be completely isolated.

Investigations and prosecutions under the Anti-Corruption and Economics Crimes Act have hitherto been selective and discriminatory. They are not inspired by any real commitment to bring culprits to book. The likelihood of any convictions arising out of cases so far instituted are almost nil. The public has lost confidence in the Kenya Anti-Corruption Commission because it is largely manned by officers from institutions such as the Kenya Police that will require complete disbandment and re-establishment before they can attain the capacity to conduct anti-corruption investigations. Despite alleged ban on harambees for example, Cabinet ministers and Members of Parliament continue to preside over these functions where they even make "contributions" from their ministries.

The timing of the decision to release Constituency Development Funds by Finance Minister yesterday was deliberately set to coincide with the Parliamentary debate on Ringera's confirmation and the Constitutional Review Commission amendment bill. It was a warning to recalcitrant MP's: Don't support the government and your constituency fund will be released " when funds become available". Its an old trick learnt from the Moi Era. It amounts to abuse of office. In the same way you must see the appointment of all these committees to fight corruption.

The Musyimi Committee for example is simply an exercise of co-option. It's a slight improvement to KANU's politics of patronage but the aim is the same. Buy the silence or acquiescence of whistle-blowers and critics by appointing them to some government committee. I hope the media practitioners including editors and clergy who have been enticed by Kiraitu to join the Anti-Corruption Steering Committee will see the folly of such inclusion.

Its is in the domain of public knowledge that Ministers who were facing bankruptcy proceedings on the eve of the last general election are today flaunting wealth of unimaginable dimensions. And although the President led the "declare your wealth" campaign, one needs to go through a rigorous and expensive court procedures before one can access any information regarding our politicians’ wealth. The law has absolutely no deterrence value. It is a public relations gimmick. But perhaps the donors are fooled by this.

Two "anti-corruption courts" exist in Nairobi but apart from the signboards outside the court rooms, these so called anti-corruption courts have no legal framework within which to work and the filing of the complaints still require consent of the Attorney General who is well known only for his famous public smile. A change of guard at the office of the Attorney General would certainly have indicated a change of policy towards investigations and prosecution of corruption cases. As it is now even the most zealous anti-corruption magistrate can be stopped in his or her tracks by a nolle prosequi from the Attorney General's Office. One also asks why are there no "anti- corruption" courts outside Nairobi?

The composition of the Advisory Board to the Anti-Corruption Commission's Board needs to be reconsidered. In particular the Chair to the Board should never be the Chair or Council Member of the Law Society of Kenya.

I conclude my remarks by citing to you two specific examples of corruption at work.
Because these are cases now pending in the courts I will not identify the real names of the parties.

Example 1 involves one of the largest parastatals in the country entrusted with the custody of workers retirement contributions. In March 2003 this parastatal placed in the local media invitations for quotations for supply of insurance brokerage services. A large number of applications were made but eight who had achieved a cut-off point of 75 marks were short-listed. It was clear that had the eight short-listed companies been subjected to the criterion set out in the Exchequer and Audit Act some of the applicants who had links with senior government officials would have not met the rigorous standards required by the law. So what happens?

The Treasury issues a circular requiring that this parastatal insure only with three pre-determined insurance brokers. One of the affected insurance brokers appeals using the procedures established by Exchequer and Audit (Public Procurement) Regulations and the Appeals Board makes the following order:
"Taking into account all the foregoing, and in particular the serious flaws in the evaluation process, we hereby cancel the tender award and order re-tendering under supervision and guidance of the Public Procurement Directorate.

We further order as follows:
i) That the re-tendering be carried out within three months from the date hereof.
ii) That in order to ensure that the assets of …..are not exposed to risk, the insurance covers in place at the date hereof do remain in place until the new tender process is completed".

Under pressure from the Ministry of Finance, this parastatal ignores the decision of the Appeals Board and eventually gives the insurance brokerage contract to a favoured broker. That the government in the process loses more that 100 million shillings and opens itself up to a legal challenge is a small matter! And the President asks for evidence! This example is one of many.

My next example relates to the Judiciary. Even though there have been marked improvement in the administration of justice in the High Court, the situation in the lower courts, with the exception perhaps of the Nairobi Chief Magistrate's Court, has not shown much improvement. This example comes from Makadara Law Courts.

X makes a complaint of assault by a well known Kasarani businesswoman. Initially the Police at Kasarani Police Station are reluctant to enter the complaint in the OB but upon discovery that the matter has been referred to the OCPD they make an arrest and one of the accused is charged at Makadara Law Courts where she is bonded to appear for hearing. The complainant is bonded to appear in court but the date shown on his bond papers is different from one appearing in court file. So when the case comes up for hearing, the complainant will obviously not be there and the accused will be acquitted for lack of evidence! And just to make sure that this complainant does not enter the precincts of court even on the date shown on his bond paper, there is a police officer right at the entrance to ensure that only those carrying bond papers for cases shown on the day's cause list are allowed entry.

I don't know how many other similar cases obtain elsewhere in the country. What I have established however is that this conspiracy to corrupt the wheels of justice doesn't involve only police officers of the lower ranks. It involves court clerks and some unscrupulous magistrates.

So what is to be done?

First and foremost we must rethink the nature of political organization. Prior to registration, political parties should be required to ensure that their memberships are not restricted to one region or tribe. Minimum levels of membership from every district should be proved before obtaining certificate of registration. The policy of requiring schools to admit students from their own localities must be reversed to that students to the country's secondary and teacher training institutions are required to train outside their own districts. This will inculcate a sense of belonging to the nation rather than the tribe.

The law requiring parliament to vet the appointment of the Director of the Kenya Anti Corruption Commission should be amended and the vetting procedure transferred to another body altogether. The current parliament has shown to be particularly unsuited for this task.

I would also say that the power to investigate and prosecute crimes should not be vested in one body only. If the police are going to continue investigation of criminal cases, then we immediately need a Criminal prosecution service that is independent of both the police and the Attorney General.

Finally, I conclude with a plea to civil society and the media. These two institutions provide the real checks and balances to our emerging democratic culture. Refuse to be co-opted into government.
















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