Kenya’s problems rooted in our national amnesia

By PRAVIN BOWRY

On matters of grave concern to the country — in diverse fields such as taxation, law enforcement, corporate criminality and crime detection and many others — there is a distinct Kenyan trait of forgetfulness and total disregard by the citizenry and the law enforcement agencies to bring to closure issues which come into the public domain from time to time.

In this exercise of national amnesia, interested parties go about their missions ensuring by all means to distract, slow or derail the process, and more often than not the judicial process of ex parte injunctions, stays, judicial reviews, appeals and other court processes are used as instruments of thwarting the due process of the law.

Some varied examples will illustrate the attitude where hundreds of important issues are relegated to insignificance over time.

On September 9, 2012, the then Local Government Minister Fred Gumo was found with a state of the art luxury vehicle believed to belong to former President Daniel Arap Moi that went missing in 2008. The vehicle, a Range Rover went missing from CMC Industrial Area, Nairobi, workshop where it had been taken for repairs.

According to Mr Gumo he bought the vehicle from a Mombasa-based businessman. Since then the said businessman has been charged together with eight others among them CMC employees. The DPP took up the matter and instructed the CID to re-investigate. Whatever happened to the probe?  It also came to light that Mr Gumo had previously been involved in another case involving another one of the former President Moi’s cars, a Volkswagen Combi.

The vehicle was found in his possession back in 2004, but he claimed it was a gift. It is now 2014 and the reality of what actually happened in this saga of highly placed Kenyans is not within the public domain.

The least Kenyans can expect is to know if the happenings were above board, if there were conspiracies or cover ups and that the innocent were not falsely implicated. Then, on another front, there is the matter of the electronic tax registration machine and the Law Society of Kenya.

The LSK made a judicial review application to the High Court seeking an order of prohibition directed at the Minister of Finance, Kenya Revenue Authority and Commissioner of Domestic Taxes preventing them from implementing the Value Added Tax (Electronic Tax Registers) Regulations, 2004.

The application was based on the grounds, among others, that the regulations were discriminative, ultra vires to the Advocates Act and would interfere with client/advocate confidentiality.

The High Court dismissed the application stating that the LSK had a serious misapprehension of the relevant tax law. This was of course followed by an appeal which resulted in an order to stay the execution of the High Court’s decision effectively exempting members of LSK from usage of the ETR machines until the appeal is heard and determined.

Now the appeal is still pending but what is certain is that LSK members are still enjoying the exemption from usage of ETR machines.

The Law Society of Kenya, Judiciary and KRA it seems cannot bring to finality the matter nine years later, and no one cares.  In January 2006 the High Court of Kenya suspended the use of the  breathalyser called Alcoblow for 30 days until cases involving its legality were heard and determined. A further extension was granted and just like that the use of the gadget was completely forgotten — until its recent reintroduction.

In commercial wars, the famous Cooper Motor Corporation Ltd featured in the papers when it came into public light that the company’s highly influential and well placed board and management were allegedly engaged in payment of remuneration to their foreign accounts evading not only tax, but also breaching the then prevailing  exchange control regulations.

Criminality was evident all around. Whatever happened to the saga, what happened to the whistleblowers? Surely Kenyans are entitled to know how the affairs of  a public company can be shelved to oblivion. Were the investigations and whistleblowers compromised? And how a tainted company is now being purchased and removed from the stock exchange is baffling. All ills of yesteryears are likely to be swept away by, it would appear, commercial manipulation.

Multi-billion procurement contracts are often questioned, the red flag raised and then forgotten.

Kenyans can recount hundreds of instances where closure and finality never came leading to speculation, conjecture and rumours and the inevitable conclusion by right thinking members of the society that nefarious and corrupt manipulation were in play.

For an average Kenyan, it must be difficult to appreciate decisions being made, appointments gazetted, contracts signed and the matters being then referred to the courts in one forum or the other. The injunctions and stay orders controlling weighty national issues in court cases in which closure and finality do not come, for in some cases, years.

The leadership of the day must learn to ensure that the weakness of national amnesia is curbed  by all concerned and also the Press to keep national issues in focus.

The writer is a lawyer

bowryp@hotmail.com