End of Goldenberg and Anglo Leasing?

By David Ohito

Two key figures in the fight against graft now want old, high profile corruption cases still in court dispensed with quickly or dropped to save public funds and Judiciary time.

Kenya Anti-Corruption Commission Director and CEO Patrick Lumumba. Photo: File/Standard

Chief Justice Willy Mutunga and Kenya Anti-Corruption Commission (KACC) Director and CEO Patrick Lumumba said high profile graft cases that have dragged on in courts must be quickly dispensed with to restore faith in the bench. The cases that quickly leap to mind are Goldenberg and Anglo Leasing.

"I am very clear on one issue: We are either serious about these prosecutions [graft cases] or we simply count our losses, drop the cases, and stop throwing good money after bad. This is a question that KACC should think through carefully, initiate a public discussions on it and seek a national consensus," said Mutunga.

In a separate interview, Lumumba said KACC would continue seeking powers to prosecute its own cases to reduce the backlog in the courts, and bypass corrupt State prosecutors.

Mutunga said the courts would no longer sympathise with public prosecutors wasting time and money on cases where the evidence is clearly insufficient to warrant trial, or the investigation appears compromised, as this is what creates a backlog.

National disaster

"I am working on getting accurate statistics of what the backlog really is. Clearly, adequate staffing, great performance on the part of judges and magistrates will be the beginning of solving this problem," he added.

The CJ argued that old corruption cases continue to gobble more resources and it was time they were closed all together so that fresh fight is focused on new corruption.

KACC chief Lumumba said: "Old corruption cases must be finalised. As you are aware Goldenberg cases are in court. We will not be prisoners of our past, but the rear view mirror will be in us. When I say we need to declare corruption a national disaster in order to fight it as we do with HIV and Aids I am dead serious."

Goldenberg is the case that has most engaged all organs of Government including the presidency, Parliament and Judiciary. Its chief architect, Paul Kamlesh Pattni, now a self-styled preacher, remains a free man despite a court case that has dragged on for years.

Pattni is accused of crafting a scheme where the Government subsidised fictitious exports of gold in the 1990s through his company Goldenberg International, in which the Central Bank of Kenya is said to have made fraudulent payments of Sh5.8 billion to Pattni’s Goldenberg International as compensation for "gold exports", a colossal sum of cash at the time. This was estimated to be 35 per cent more than the foreign currency earnings from the allegedly fictitious gold and diamond exports. Kenya has no known diamond deposits.

The scandal was to later suck in several banks including Kenya Commercial Bank, National Bank, Pan African Bank, Delphis Bank, Transnational Bank, Trust Bank and Trade Bank.

The monies were allegedly paid out to Pattni under the Rediscounting Facility for Pre-Export Bills of Exchange of the CBK. The facility was later discontinued, but the damage was done.

A Commission of Inquiry on the matter chaired by Justice Samuel Bosire ruled no gold or diamond jewels were ever exported, and that existing laws on foreign exchange were flouted. It said Goldenberg International was compensated for nothing. The Attorney General’s office was also accused of incompetence bordering on the criminal for its role in the matter.

In the case of Anglo Leasing, tenders to replace Kenya’s aging passport system and build modern forensic science laboratories for the police were never properly advertised and are said to have been greatly inflated from the original cost

Lumumba said Anglo-Leasing cases are at an advanced stage of investigation with assistance from the UK government. Mr Chris Murungaru, then Internal Security Minister under whose docket the project fell was banned from travelling to Britain, but no one has ever been charged in court with the scam.

"This week we will publish a formal invitation asking those with ill-gotten wealth to come forward, give full disclosure surrender in exchange for amnesty," Lumumba said. He noted that the fight against corruption must be multi-pronged involving- education and investigation.

"We discharge that mandate in accordance with the law. KACC has no power to prosecute. Prosecutions are mounted by the Attorney General and until recent appointment of the Director of Public Prosecutions," said the anti-graft chief.

personal sacrifice

Like the Chief Justice, Lumumba said the country must decide on how it want to handle old corruption cases as it confronts fresh cases of corruption.

But he shifted blame at DPP saying in recent high profile cases involving senior government officials, there were ‘rushed’ prosecutions aimed at achieving acquittals.

As part of the battle against graft, the CJ wants only judges and magistrates willing to work at great personal sacrifice or eve risk to their lives appointed to office. Mutunga also said for success in the war against graft, goodwill from the police, Kenya Anti-Corruption Commission (KACC) and the office of the Director of Public Prosecutions are key. Security for witnesses, investigators, and prosecutors should also be a priority. "The Judiciary will play its role. Will the other agencies play theirs? This is the political question the Kenyan people should address," said the CJ.

Once the 26 judges of the High Court are recruited by the end of August, the cleanup of the Judiciary will begin in earnest.

Once appointed, the new judges will have little time to celebrate, and must roll up their sleeves and get to work on clearing the huge files of pending cases on their shelves.

"We want to deal with high profile corruption cases more comprehensively after we recruit 26 judges by end of August. I would like to make sure these cases are heard with the priority they deserve," said the CJ.

In an exclusive interview with The Standard, the CJ fired a fresh salvo against graft in the delivery of justice, saying he can never compromise on his mission to rid the Judiciary of corrupt magistrates and judges. He warned that the era of "untouchables" is gone, in reference to the powerful and rich politicians who in the past influenced courts of law to rule in their favour.

The Judiciary needs men and women willing to protect the Constitution when exercising their duties, said Mutunga. He added that he would only deploy judges and magistrates who have shown unparalleled courage and appear genuinely keen to end corruption.

"What I can promise is that I will provide individuals who as judges or magistrates will try anybody without fear or favour. Their integrity will be above reproach. Their mastery of the law will be second to none." He said.

"My promise is simple. The Judiciary will no longer be the same!" Mutunga warned.

Announcing his game plan for dealing with corruption in the Judiciary and in the dispensing of graft cases, the CJ reminded Kenyans nobody is above the law.

"We will try cases without fear or favour, but we need political will by the powers that be, both local and international, to support prosecution and investigations," Mutunga told The Standard. Currently, KACC can only investigate. Prosecutions were handled by the Attorney General’s office until a few weeks ago, when the role was taken over by the new DPP, Mr Keriako Tobiko.

High standard

"In my view, corruption cases involve several factors that are collectively critical in getting a fair hearing, regardless of results. We need to understand and embrace the Constitutional principle that those charged are innocent until proven guilty," noted the CJ.

Mutunga’s goal is a judiciary that adheres to a high standard of independence and impartiality, integrity, accountability and transparency. It should provide timely access to fair and impartial services and uphold the rule of the law.

Asked to comment on the common saying, "Why hire a lawyer when you can buy a judge?" Mutunga said: "It is very damaging to the public faith in the Judiciary, and yet that is how it is perceived. We have no option but to restore public faith in the courts. The Judiciary does not exist in a vacuum and Kenyans must realise eradication of corruption is a political project."