Slay Anglo Leasing serpent, pay up and reward impunity

By Ababu Namwamba

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Can’t Pay, Won’t Pay! That must be our national chorus to anything Anglo Leasing. Because to pay even a single penny to the phantoms behind this vile rip-off is to reward impunity and offer a new lease of life to the serpent of grand corruption — which we should be asphyxiating, not resuscitating!

I applaud the National Assembly for choosing to walk on the right side of history by refusing to be used as a laundry room to sanitise grand larceny. Before the Anglo Leasing motion was withdrawn, I was all set to challenge its very admissibility because it amounted to asking Parliament to consider approving a matter rooted in manifestly unconstitutional and indeed criminal deeds. This would offend Standing Order 47 of the National Assembly.

Everything about Anglo Leasing violates Article 201 of the Constitution which sets principles that must “…guide all aspects of public finance in the Republic”. They include the requirement that “public money shall be used in a prudent and responsible way…” and further that “there shall be openness and accountability…” The fraudulent nature of the Anglo Leasing deals further offend Article 227 on legitimate contracting, and Article 10 which enacts national values and principles that bind all State organs, State officers, public officers and all persons whenever they “make or implement public policy decisions”. These include integrity, transparency and accountability.

The shadowy deals, especially the complicity of public servants in aiding and abetting the scam, are also an affront to the letter and spirit of Chapter 6 of the Constitution, where the guiding principles of leadership and integrity are domiciled. The principles include accountability to the public for decisions and actions. Article 73 here provides that authority assigned to a State officer is a public trust to be exercised in a manner that, inter alia, brings honour to the nation and dignity to the office, and promotes public confidence in the integrity of the office. The stubborn refusal to unmask the Anglo Leasing architects is not only obtuse and suspicious, it also violates Article 35 that guarantees access to information.

By even just debating the motion seeking to pour more taxpayers money down the Anglo Leasing drain, the National Assembly would become an accomplice in all these breaches. That would demean the dignity of the House, contrary to Article 75 which requires State officers to avoid behaving in a manner that “demeans the office and the office holder”. Such debate would also breach the House’s own procedures. Since Anglo Leasing remains subject of outstanding audit queries, the House would find itself in a bind if it approved the payments, then get confronted with subsequent contrary recommendations. And since Parliament is a House of records, and there are previous Public Accounts Committee (PAC) reports condemning Anglo Leasing, including the damning indictment signed by President Uhuru Kenyatta in March, 2006 when he chaired PAC, what would be the implications of the same House now purporting to sanitise what its own records already declared fraudulent?

The National Assembly did well to refuse to carry a skunk that squarely is the executive’s baby. Treasury now has a second chance to be honest with Kenyans. Treasury Cabinet Secretary Henry Rotich is right when he says Kenya is duty bound to honour legal obligations. But what he conveniently forgets is that there is nothing legal about Anglo Leasing. Government must also stop fear mongering. It is not true that we cannot float a Sovereign Bond merely for dishonouring fraudulent demands of faceless wheeler-dealers whose influence in international financial circles is zilch. The story about our embassies being auctioned is also puerile. Foreign missions are insulated by the Geneva Conventions. We also have legitimate options. For starters, what Attorney General  Githu Muigai is bandying around from the London Court of Arbitration is a consent judgment, which confirms doubts expressed by PriceWaterhouseCoopers on the quality of Kenya’s legal defence, raising the prospect of a conspiracy to deliberately “lose” the cases. The judgment can and should be challenged. However much it costs us in penalties, we must not set a precedent of rewarding fraud and impunity. That could also expose the country to a potential avalanche of claims, including from ghosts like KENREN.

In the meantime, lets us locate all public officers responsible for walking us into this conundrum, and unleash on them the full fury of Article 226 (5) of the Constitution: “If the holder of a public office, including a political office, directs or approves the use of public funds contrary to law or instructions, the person is liable for any loss arising from that use and shall make good the loss, whether the person remains the holder of the office or not”!

The writer is Budalang’i MP and Chair of Parliament’s Public Accounts Committee