Miguna: Who is Paying For Murungaru's Woes?

[Onyango Oloo]

By MIGUNA MIGUNA* - 27 October 2005


There is something uncanny, even suspicious, about the pugnacious MP for Kieni,

Dr. Christopher Murungaru.

In the face of salacious but serious accusations of corruption from a plethora of his domestic critics and two key international Kenyan allies, the humongous man from Kieni froths and fumes,

with tomato-sized pearls of sweat pouring down his brow, rather than reflectively, coherently and intelligently addressing the charges pointed in his direction, with facts and evidence.

Crying foul, followed by a crescendo of choruses from choreographed political bosom-mates, will not salvage our Minister of Transport. Not in a long short this time.

As a public figure that draws both his tidy salary and benefits from our hard-earned taxes, Dr. Murungaru would do himself and the country a great service by resigning his position immediately. His continued stay as a senior member of President Kibaki’s government has become a liability and this situation will get worse unless or until he is investigated and either vindicated or indicted by an independent judicial inquiry.

Dr. Murungaru holds three unenviable records:

He is the first Kenyan Cabinet Minister to be banned from visiting or passing through the United Kingdom.

Second, he is the first serving member of the Kenyan government banned from ever stepping onto the United States of America.

And third, he is the first Minister in Kenya’s history to remain in cabinet even after being publicly accused of serious wrongdoing by both Kenyans and foreign governments.

But he may also hold a fourth record: that of taking legal action against two sovereign states in two separate jurisdictions for executive fiats. He has no reasonable chance of success on either score.

As a public official, Dr. Murungaru is expected to conduct both his personal and official affairs without even a whiff of suspicion from anyone. An occupier of any public office is supposed to be possessed with the highest level of integrity and professionalism. Each and every duty or responsibility executed by a public servant must be transparent and accountable. The slightest amount of ethical question, suspicion or moral issue, however innocuous, credibly raised against a holder of a public office, normally results in a blight on the office holder, and dents the credibility of public service. It also invariably undermines any good policies, practices or intentions of the government for which such an official works.

Once the public goodwill and trust has been eroded by dint of such suspicious acts, a public servant loses the ability to conduct routine affairs and ultimately - directly or indirectly - sabotages the very objectives of the government they serve and the promises that government might have made to its citizens. When all is said and done, it is the public that foots the bill for all public servant infractions.

Because serious and credible questions have been raised about Dr. Murungaru’s character, conduct and associates by the UK Government, leading to the unprecedented step of canceling his visa and the extraordinary direction to all airlines flying to the UK not to allow him to board all planes destined for that country, no reasonable and responsible person can dismiss such actions as simply vexatious and aimed only at protesting against lost contracts, like prominent members of this Kibaki government have done.

It is most unlikely that both the UK and US governments would accuse Murungaru of corrupt practices merely because of personal differences between Murungaru and Sir Edward Clay or, as Murungaru asserted the other day, as a conspiracy against the Kibaki Government; part of a scheme of actions, in concert with his political enemies in Kenya, aimed at changing regimes in Kenya.

Murungaru, Mwakwere and Co. may be seeing ghosts and boogey men in every corner of Kenya, Britain and America. However, the bellicose MP for Kieni might be too fast with the truth to his detriment.

Under both international and domestic laws of various countries, sovereign states have absolute control of their borders; whether by road, air or water. Any foreign visitor, even to Kenya, must, before being admitted into the country, apply, qualify and obtain an entry permit or visa, mostly after paying the appropriate fee. Such visas or permits are generally restricted and issued at the sole discretion of the admitting country. The visas always specify the date, length and purpose of entry. There is no carte blanche.

Whenever any country has a reasonable suspicion that a visa applicant or holder has committed, will or may commit a crime, or engage in any activity incompatible with the welfare, laws or interests of that country, it reserves the right to deny or restrict entry. A country is also legally allowed to terminate or cancel the visas or permits it might have issued to foreign nationals. Again, the threshold test is “reasonable suspicion.” This requirement is less onerous than in cases where “reasonable belief” is the applicable test. With respect to the latter, the decision maker is required to base his or her determination on things observed, heard and suspected. A multiplicity of these things observed or heard form part of the “reasonable belief”. One need not have tangible physical evidence. If one had, then, presumably Murungaru would have been arrested, charged and prosecuted by the countries involved. This is not to say that these countries lack tangible or physical evidence. In many cases, because of Murungaru’s current position, it is the Kenyan authorities that are required to investigate and take action against him. Obviously, this has not, and may not, happen.

In a statement published by the local Kenyan press yesterday, Dr. Murungaru argues that the American Government has purportedly joined the British Government to deny him a visa “to lend credibility to the decision they made without any shred of evidence…” [Emphasis in the original.] He accuses both countries of “playing partisan politics and [to] have teamed up with a section of political class [sic] in this country.” Dr. Murungaru goes ahead to call upon both the UK and US Governments to make public the reasons, and presumably, the evidence upon which their decisions were based. At the end of his article, Murungaru attempts to sound patriotic and warns that Kenya “must refuse to continue being subservient to the West.” He forgets that this is all about him, not Kenya.

Dr. Murungaru misses the point completely. I am surprised that his high-powered lawyers have missed the point as well. The issue is not the availability or lack of evidence or explanation. Neither the UK nor the US Government is required to furnish him with such evidence. Legally, the only explanation Murungaru is entitled to get from any foreign government is simple – “We have reasonable suspicions to believe that you have engaged in criminal or suspicious activities or may engage in the same if allowed to enter or remain in our country…” Period.

Similarly, the reasons so far given will suffice. It is not up to Murungaru to dictate to the country denying him entry what “sufficient evidence or explanation” should be used as a rationale for denying him entry or canceling his visa. They may do this if Murungaru was their national. However, under the circumstances, to do what Murungaru is asking for would mean that Murungaru has a right to dictate to either country how to manage their borders and domestic affairs. Kenya routinely does the same to foreign nationals.
______________________________________________________________________

*The writer is a Kenyan practicing law in Toronto, Canada

[aeichener]

Excessive adjectives, teeming through the article like mites.

C minus.

A.

[kamalet]

FYI, a UK judge allowed Murungaru's application for judicial review and ordered the home secretary to provide the court with the details and reasons of the banning order. He also said that the Murungaru was entitled to full reasons for the order given by the home secretary.

Personally, I am hopeful that Murungaru can force these 2 governments to give Kenyans the reasons why they took their decision, as that is the only way we can end the speculation about what he did or did not do!

[miguna]

Kamau:

I just received a call from Kenya, telling me that you were looking for me at Oloo's Jukwaa. Here I am. I have seen your posting. However, just so that Murungaru does not get ahead of himself, the application his London lawyers made is called "An Application for Leave and Judicial Review." Procedurally, one does not have an automatic right to seek review. The leave or permission of the court is required. It is "leave" or "permission" that Murungaru received the other day. Granting leave to a party does not mean that the court views the party's arguments as strong or weak. The determination is not based on the merits, evidence or legal validity of a party's position. All the court does is assess whether the party seeking leave has "an arguable case." If, on a balance of probabilities, based on the decision being challenged and the questions or issues being raised, the court is of the opinion that the party ought to be allowed to present its case, then leave is granted. All one needs to do is raise a valid point of law for argument. Incidentally, as the applicant, it is Murungaru who must first perfect his application by filing both a Record containing the evidence he relies on as well as a Factum (argument of facts and law) comprising his legal position. Once he has perfected the appeal, the respondent (what everyone called the UK Govt, but actually, Her Majesty The Queen or the Crown) will respond to his arguments. The respondent will also serve and file its Record, containing the evidence it relied on, and will rely on. Murungaru must be aware that unless he seeks and obtains a publication ban, everything filed in court are public record and will be accessed by all and sundry, including the media.

In I disagreeessment, he has a good chance in hell.

I hope that I have clarified any confusion you might have had about this matter.

Now, to my ghost writer and fellow lawyer:

I am pleasantly surprised; in fact, ecstatic that the rumbling essay I penned over dinner with my young daughter pulling on my ears scored so high. You see, I was always an "F" student. Believe it or not, I have never ever scored a "C" on anything I have done. All my grades ranged from "E" to "F" thoughout my schooling. What amazed me was that despite these poor grades, I managed to go to High School, then university, then law school, then graduate school. And by some miracle, I even passed the Bar! Phew!

In fact, I will forward your grade to my alma mater so that, hopefully, with your approval and recommendation, they may upgrade my Grade Point Average to "C". That way, I will join that exceptional group of lawyers such as Edward Greespan, F. Lee Bailey and Johny Cochrane. North Americans consider these three legal titans as the best. Greenspan was a "C" student before romping to the top of the Canadian Bar and remaining there now for more than twenty years. The legendary F. Lee Bailey's and Johny Cochrane's (God rest his soul in peace) exploits are well known.

I thank you for your commendation. I will be forever proud.

Peace

[miguna]

Kibaki okays fresh graft probe on Murungaru
--------------------------------------------------------------------------------

Standard Team

President Kibaki has okayed a demand by anti-corruption chief Aaron Ringera for Kieni MP Chris Murungaru to declare and account for his wealth in a fresh move to unmask the Anglo Leasing ghosts.


Chris Murungaru


The sacked Transport Minister has further been summoned to appear before the Kenya Anti-Corruption Commission on February 16 as Kacc probes the mega-billion shilling Anglo Leasing scam, the biggest scandal in President Kibaki’s tenure so far.

President Kibaki is reported to have given Ringera his blessings when the latter showed up for an appointment at State House with a thick file believed to have been part of the dossier former anti-graft czar John Githongo prepared in Britain, where he has been hiding since he resigned abruptly in January 2005.

Githongo had said he quit because he had lost faith in those whom he was working with in the war against graft. He is now expected to come back to Kenya to speak about what he knows on corruption in Kibaki’s government.

Murungaru’s lawyer, Paul Muite, on Sunday confirmed his client had received the orders in two letters signed by Ringera and a senior forensic officer, Ms Julie Owino, respectively. Muite has since contested the wealth declaration orders as "illegal" and discriminatory", but agreed to respect the February 15 summons, saying his client had nothing to hide in investigations into the two Sh7 billion tendering scandals.

"My client has nothing to fear and will be happy to go to Kacc so that further investigations that should lead to the arrest of those involved can be done," Muite told The Standard.

But he said he would be contesting Ringera’s order to Murungaru last week requiring the former minister to explain his entire wealth and how he acquired it, saying they lacked legal foundation and betrayed bad faith against his client.

"I talked to Ringera on Friday and told him the matter against my client raised certain weighty and technical issues. The fact is public servants declare wealth to different depositories. In the case of MPs, they state it to the Speaker of the National Assembly. There’s no law that says you declare your wealth to Kacc. That’s why I think Ringera’s letter is in bad faith. Why hasn’t he asked any other Kenyan to do the same? It is illegal to discriminate against any Kenyan," the Kabete MP said.


‘Full investigations’


Muite argued that if Kacc thought Murungaru had suspect assets, it was upon it to specify the property in question instead demanding he does so through a "letter couched in generalities."

"We pay Ringera Sh2 million a month to investigate graft. Why does he expect my client to do it for him? It is for him to point out what he thinks is suspicious wealth. You don’t challenge someone to prove he hasn’t a boil unless you know where it is."


Musalia Mudavadi


Also summoned to appear before Kacc over the tenders to the shadowy British firm are former Vice President Musalia Mudavadi and Nambale MP Chris Okemo who are former Finance ministers.

The spotlight will, however, be on Murungaru, who was then the Internal Security Minister when the tenders for the upgrading of Kenyan passports and construction of a CID forensic laboratory were awarded to the firm believed to have enjoyed influential backing from Government officers.

Sources said President Kibaki had approved "full investigations" into the scandal that has cast a long shadow on his Government’s claim to intolerance to corruption amid claims that Energy minister Kiraitu Murungi had made frantic efforts to spare Murungaru the "embarrassment" of interrogation.

Kiraitu is reported to have met Ringera to discuss the new storm building up around Murungaru. He was last year banned by the European and American governments from ever stepping into their countries on the basis of "character contact and associations.’’

It was after the meeting with Kiraitu that Ringera went to meet the President, where he is said to have been ordered to do his job as he knows best.

Sources within Kacc revealed that the commission was keen to get to the bottom of Murungaru’s source of wealth because of a feeling he had grown "too rich too fast.’’

Murungaru has several times maintained he was not corrupt and even waived his immunity in a bid to have the Western nations to disclose to Kenyans why they were cancelling his visa.

He also has an ongoing defamation case against the British government in London. He’s angry that the UK circulated a statement to airlines warning that they should never fly him to their countries.

Sources within Murungaru’s circle revealed he was an angry man who feels betrayed by powerful people he once either worked for or with. He was personally not available for comment. However he’s said to be prepared for the upcoming battle, particularly if it culminates in his arrest.




Internal wars


Murungaru’s replacement at the National Security docket, John Michuki, is said to have prevailed upon Kibaki not to curtail Kacc’s move arguing such an interrogation and possible prosecution would rekindle faith in the Government’s efforts at fighting graft.

It could also allay donors who fund a chunk of the Kacc budget and who have reportedly been pressuring the Government to match words with action on combating corruption. The Anglo Leasing scandal probe is seen as good platform to win their faith.

Confidants of the Kieni MP, however, claim the resurrection of the Anglo Leasing investigations is linked to the current internal wars between President Kibaki influential advisors.

In his power heydays, Murungaru and Kiraitu were seen as the fulcrum of the youthful powerbrokers close to the President and who were wresting influence from elderly and wealthy men with close ties to Kibaki.

"The whole thing is about the war between the old and the young in Kibaki circle. The wazees (old men) seem to believe Murungaru is the engine of the young Mount Kenya MPs’ growing rebellion against the President and his advisors," an MP close to him said.

He claimed the former minister was wrongly being seen as the financier of an upcoming Mombasa meeting to be attended by Central Kenya MPs currently embroiled in a war of words with the Old Guards. Sources also confirmed that an elderly minister was keen to have a "big fish" prosecuted over the Anglo Leasing scam with Murungaru leading the pack of likely "victims."


Forensic laboratories


But the burly former minister who has maintained a low profile since his sacking was said to be unfazed by the impending interrogation.

On Sunday, Muite said facts would bear Murungaru out.

"The tenders were in two parts and money was only paid for passports that do not fall under my client’s former ministry. They had nothing to do with him. There’s no evidence to show money was paid for the forensic laboratories that rightly fall under Security."


Chris Okemo


The tenders had been mooted during the last years of Kanu rule when Mudavadi was the Vice President under which the Immigration Department falls (and therefore the Passports contract) while Okemo was in charge of Treasury.

Murungaru’s presence in the Cabinet had, however, become an embarrassment to the Government especially after Britain and the US, both influential donor partners, revoked Murangaru’s visa to their countries over undisclosed reasons.

After Ntonyiri MP Maoka Maore blew the whistle on the tenders, the Government reacted by sacking and prosecuting the Permanent Secretaries of Treasury and Home Affairs.

But the sacking and subsequent prosecution of Joseph Magari and Sylvester Mwaliko failed to appease public demands for the sacking of Vice President Moody Awori and Finance Minister David Mwiraria on whose behalf the PSs are assumed to have acted.

A report on the scandal by the Parliamentary Accounts Committee that scrutinises public expenditure was highly critical of the VP and the Minister and recommended their censure.

The Government claims to have since recovered an Sh467 million "commitment fee" it had paid out to Anglo Leasing.

[politicalmaniac]

This is a shoddy attempt to rehab the poor image of the Kibaki GOVT. Trying to pull a fast one over the eyes of the masses uh?

Obviously the meaty sweaty pugnacious pharmacist (he of the MoU is dead fame) is but small chips in the poker game.

Believe me nothing is going to come of this just like the Goldenberg saga.

Under Kibaki, we cant expect his powerbrokers to face the full weight of the law but we can expect them to face a semblance of the same

[kamalet]

Now Murungaru has become small fish eh? So who would you like to fry that is big fish?

Coming from social and justice activists in these forums, have they ignored the 'innocent till proven guilty' statement?

Infact why dont we go for people where the evidence exists that they actually dipped their fingers in the till, and this should not matter whether it was in 2006 or even 1988! It should not just be Goldenberg, but should include Turkwell, the fertiliser and sugar sagas.

If you wish for investigation, then let us find out how some of the deals were actually closed - these should include mahindra, molasses, anglo leasing fraud schemes. Let us not be selective here gentlemen!!!

[aeichener]

I would say that professional criminals like Chris Murungaru and William ole Ntimama should really find their destination at the end of a hemp rope, the sooner the better. And yes, corruption with its innumerable tentacles has gotten hold of most parties and most ethnia.

Alexander

[miguna]

Friday February 3, 2006

Murungaru loses bid to block probe
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By Judy Ogutu

The High Court has allowed the Kenya Anti-Corruption Commission (Kacc) to investigate former Transport minister Chris Murungaru.

Murungaru, through his lawyers, lost his attempt to block Kacc from investigating him over alleged corruption.

James Mungai (second right), a senior State Counsel, takes notes at the Nairobi High Court on Thursday. Looking on are lawyers Gitobu Imanyara (left), Paul Muite and Kioko Kilukumi, who represent former Transport minister Chris Murungaru. Pic by Boniface Okendo

In an affidavit, the Kieni MP said Kacc director, Justice Aaron Ringera, wrote to him asking him to furnish the commission with a statement detailing his properties, mode of acquisition and when they were acquired. He said Ringera indicated that he was suspected of corruption and economic crimes.

The former minister wanted the court to issue a directive temporarily stopping investigations or prosecutions against him pending the hearing and determination of the constitutional questions he is raising.

Kacc had given him up to Friday to furnish it with the information, warning that he risked being fined Sh300,000, imprisonment not exceeding three years, or both.

But in his ruling, Justice Joseph Nyamu said Murungaru’s request was procedurally incompetent.

"The order sought as per the wording cannot be granted because the rule (under which it was filed) does not impose an automatic stay. The same must fail for the above reasons," said the judge.

Although the judge found he had raised a prima facie case that his rights would be being violated, he said the court’s role was to consider the weight of an individual’s rights and that of public interest.

"My inclination is to uphold public interest and any shortcomings can be taken up by the applicant when they happen. I, therefore, disallow the application and I decline to make any conservatory order."

Paul Muite, Gitobu Imanyara and Kioko Kilukumi are representing Murungaru.

Muite had told Justice Nyamu that Murungaru risked being prejudiced because the anti-graft chief, Mr Ringera, had given him a deadline of Friday to furnish him with a written statement enumerating all his property.

Muite argued that his client’s fundamental rights risked being infringed on if the order was not granted.

"Where allegations of fundamental rights are made, the court travels the extra mile to ensure the rights are protected," he said.

But the commission, through Prof Githu Muigai opposed the request, saying it was misdirected. Kacc, he argued, had not taken any action that had compromised Murungaru in any way.

‘Political conspiracy’

Muigai that there was nothing to suggest that the commission had acted maliciously or sought to investigate Murungaru.

"The commission is only seeking to investigate."

Murungaru had named the Kenya Anti-Corruption Commission (Kacc) and the Attorney-General as the respondents. The Attorney-General had accused the former minister of attempting to get the orders through the backdoor.

State counsel James Mungai said Murungaru had not followed the rules, as the rule under which he filed the suit did not provide for the temporary order.

Murungaru termed the investigations "part of a political conspiracy involving foreign governments with a publicly stated desire to effect a regime change in Kenya".

The case will be mentioned on Friday for the judge to refer it to the Chief Justice for direction.