Post by miguna on Feb 4, 2006 19:35:35 GMT 3
THE GOLDENBERG REPORT LEAVES LOTS OF QUESTIONS UNANSWERED
By MIGUNA MIGUNA* - © 4 February 2006
Not surprisingly, the long awaited Goldenberg report was released with muted fanfare from the government, but conveniently after seven months following its purported completion. The higher ups delayed the release and staged it to scatter the raging fires of the Anglo Fleecing and other related scandals.
Those in the know have claimed that Justice Bosire completed the report in June 2005. He had purportedly requested his handlers at the relevant ministry to secure an appointment with President Kibaki for him to deliver the report officially in November last year.
However, because of political intrigues, cold-footedness and the not so subtle strategy of trying to blunt the lethal effects of the ever leaking corrosive sewers of the Anglo Fleecing scams, the Kenyan public only became “officially aware” of the gory details yesterday. Needless to say, virtually all the so-called “findings” and the list of the big names implicated in the multi billion shilling looting spree have been openly circulating in public for years.
To this extent, one can argue that Justice Bosire’s report is more than ten years old. It is difficult to comprehend why the public had to be deprived, yet again, of hundreds of millions of shillings, only to be told about things they already knew.
In my view, both the Commission of Inquiry into the Goldenberg Scandal (the Commission) and the report are scams in and by themselves. They were meant to sanitize or launder the dirt of the bigger and stinkier scam. Whether the strategy has succeeded is yet to become apparent.
The release of the Goldenberg report amidst calls by both local and international critics of the Kibaki government to either swiftly apprehend and prosecute all the perpetrators of the Anglo Fleecing scams or resign and seek a new mandate, is seen by many as an act of political self delusion.
President Kibaki’s diary has not suddenly opened up to permit the hand over ceremony. The timing is too convenient for us to accept that Justice Bosire was made to wait for this occasion for more than seven months due to the president’s alleged busy calendar. Neither is it believable that Kibaki has now magically transformed himself into a committed anti-graft fighter or campaigner. If this was the case, then the hand-over ceremony would also have been graced by the presence of his erstwhile Permanent Secretary for Ethics and Governance, John Githongo.
In fact, going only by the contents of Githongo’s recent report to the president, I am convinced that he [Githongo] could have done much better than the Bosire Commission. Had Githongo’s office been empowered and detailed to investigate the Goldenberg and Anglo Fleecing related scams, there is little doubt that the Kenyan tax payers would have achieved stunning results with barely the salary of a senior civil servant.
Instead, we were forced to spend hundreds of millions of shillings and yet, as Justice Bosire confessed during the hand-over ceremony: “A lot of money was siphoned out of the country through the Goldenberg scheme…But we were unable to trace it.”
This was a startling confession from a senior Court of Appeal Judge. Startling because Justice Bosire ought to have known (at the very outset) that a commission of inquiry does not have the mandate, authority or means to trace stolen money. That function is left for investigative institutions and individuals, local and international law enforcement agencies, forensic accountants and investigators and the Kenya Anti Corruption Commission (KACC), among others. All the Commission needed to do was seek the assistance of these institutions in unraveling the presumed mysteries surrounding the scam.
The Commission report fails to inform us what, if anything, it did to try and trace the missing loot. It also did not disclose, why - if indeed it tried – it failed to trace the billions of shillings still unaccounted for. This borders on gross negligence.
As a Commission of Inquiry, the Bosire body had specific tasks. These duties or functions were clearly enumerated in the Commission’s Terms of Reference.
I would be shocked if one of the terms was “to trace stolen money” of the Goldenberg scandal. This is because without the ability to fully, thoroughly and comprehensively “investigate” all suspected culprits, including but not limited to all their assets, bank accounts, investment accounts and those of their relatives, friends, business partners and/or associates, the Commission could not possibly have been in a position to track , trace or locate all the stolen loot.
For instance, why was the Commission unable to compel witnesses like the former president, Daniel arap Moi, to testify before it? Without the ability to compel the attendance of witnesses before it, how was the Commission supposed to fulfill one of its primary mandates?
If indeed the Commission was mandated to investigate and make findings on the stolen loot, then Justice Bosire’s report falls way below all expectations.
Justice Bosire and the handsomely compensated members of his commission and legal assistance team should have ensured that the Commission’s Terms of Reference were broad and far reaching enough so as to make their work effective.
If the appointing authority was either unwilling or unable to adjust the terms of reference in order to accommodate their input, then it was certainly open to these eminent sons and daughters of Kenya to decline to participate in the work of an otherwise toothless Commission.
As far as we can gather, they neither demanded a broadening of the Commission’s mandate, nor did any of them see fit to decline or resign his or her appointment.
Accordingly, it makes no sense for Justice Bosire to bemoan the Commission’s failure. That failure squarely rests at his feet.
It is difficult to understand why the Commission could not or did not seek the assistance of foreign countries, banking institutions and law enforcement agencies in attempting to unravel the mystery surrounding the missing billions. No answer has been forthcoming with respect to the role of the foreign forensic investigators. All we know is that they were reported to have been paid tens of millions of US dollars to locate or trace the Goldenberg loot. We have read in media reports loud proclamations from Kiraitu Murungi, in particular, that large sums of the missing loot had been located.
If Nigeria was able to trace and locate huge sums looted from its treasury by the former military strongman Abacha, why is Kenya unable to do the same?
Since large amounts of the missing money went through both the International Monetary Fund (IMF) and the World Bank, it would be interesting to learn what, if anything, the Commission did to obtain financial data as well as investigative findings of these two institutions.
Justice Bosire confessed that his Commission was only able to trace one asset, namely, the Grand Regency Hotel in Nairobi. How inept can a commission be to make such a ludicrous admission?
Almost all the key people associated with the Grand Regency Hotel are Kenyan. Even those who are not legally Kenyan residents are either in Kenya or could be repatriated back to Kenya. The questions that beg answers are: What steps did the Commission take to summon these people before it? Why couldn’t the Commission obtain relevant information of the culprits’ accounts and assets? Why should the Commission recommend further “investigation” in cases where it was in a position to fully investigate and conclusively determine the involvement of all the perpetrators? Why didn’t the Commission require complete accounting of all assets, accounts or investments of all suspects?
The information in the public domain is that there is more than credible, reliable and impeccable evidence that can sustain convictions in both the Goldenberg and Anglo Leasing related scams. Yet rather than arrest, charge and prosecute the perpetrators of these despicable mega frauds, the Kenyan authorities have chosen to establish commissions of inquiry in order to delay or subvert justice.
Justice Bosire made another shocking recommendation concerning the involvement of judges in commissions or inquiries. According to Justice Bosire, “judges should not chair or participate in politically sensitive commissions of inquiry…because weaknesses in a report may later be used against them, especially since Kenyan judges do not have a mechanism for appeal.”
Justice Bosire is more concerned about protecting judges like himself from “future” actions rather than discharging his duties fearlessly and completely. Justice Bosire appears to be looking for more guarantees for judges rather than seeking to protect the pubic interest. He seems not to have been contented with the judicial immunity and tenure. His option? Make us gods or leave us out of these messy, potentially dangerous and political inquiries.
If this troubling recommendation were to be implemented, then Kenyans could very well see judicial commissions chaired or wholly run by politicians. That makes my blood boil. I tremble and fear for Kenya.
President Kibaki’s statement when accepting the Goldenberg report was telling. He is reported as saying: “I’m very grateful for your effort and I am sure we shall take the action recommended in this report. We shall read the report and see what you say shall be done and I know it will be done.” [emphasis added]
Curious, isn’t it? Why would a head of state not categorically and immediately ORDER the arrest of all the people who the Commission clearly had implicated? Why hasn’t he (for crying out loud) even fired George Saitoti from his cabinet? In fact, with all that we have known in the past ten years about his central role, why in heaven’s name, was Saitoti appointed to the Kibaki cabinet in the first place?
The answers to these unanswered questions are more revealing than the Bosire recommendations. And that - fellow citizens - should make us all vomit.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada
By MIGUNA MIGUNA* - © 4 February 2006
Not surprisingly, the long awaited Goldenberg report was released with muted fanfare from the government, but conveniently after seven months following its purported completion. The higher ups delayed the release and staged it to scatter the raging fires of the Anglo Fleecing and other related scandals.
Those in the know have claimed that Justice Bosire completed the report in June 2005. He had purportedly requested his handlers at the relevant ministry to secure an appointment with President Kibaki for him to deliver the report officially in November last year.
However, because of political intrigues, cold-footedness and the not so subtle strategy of trying to blunt the lethal effects of the ever leaking corrosive sewers of the Anglo Fleecing scams, the Kenyan public only became “officially aware” of the gory details yesterday. Needless to say, virtually all the so-called “findings” and the list of the big names implicated in the multi billion shilling looting spree have been openly circulating in public for years.
To this extent, one can argue that Justice Bosire’s report is more than ten years old. It is difficult to comprehend why the public had to be deprived, yet again, of hundreds of millions of shillings, only to be told about things they already knew.
In my view, both the Commission of Inquiry into the Goldenberg Scandal (the Commission) and the report are scams in and by themselves. They were meant to sanitize or launder the dirt of the bigger and stinkier scam. Whether the strategy has succeeded is yet to become apparent.
The release of the Goldenberg report amidst calls by both local and international critics of the Kibaki government to either swiftly apprehend and prosecute all the perpetrators of the Anglo Fleecing scams or resign and seek a new mandate, is seen by many as an act of political self delusion.
President Kibaki’s diary has not suddenly opened up to permit the hand over ceremony. The timing is too convenient for us to accept that Justice Bosire was made to wait for this occasion for more than seven months due to the president’s alleged busy calendar. Neither is it believable that Kibaki has now magically transformed himself into a committed anti-graft fighter or campaigner. If this was the case, then the hand-over ceremony would also have been graced by the presence of his erstwhile Permanent Secretary for Ethics and Governance, John Githongo.
In fact, going only by the contents of Githongo’s recent report to the president, I am convinced that he [Githongo] could have done much better than the Bosire Commission. Had Githongo’s office been empowered and detailed to investigate the Goldenberg and Anglo Fleecing related scams, there is little doubt that the Kenyan tax payers would have achieved stunning results with barely the salary of a senior civil servant.
Instead, we were forced to spend hundreds of millions of shillings and yet, as Justice Bosire confessed during the hand-over ceremony: “A lot of money was siphoned out of the country through the Goldenberg scheme…But we were unable to trace it.”
This was a startling confession from a senior Court of Appeal Judge. Startling because Justice Bosire ought to have known (at the very outset) that a commission of inquiry does not have the mandate, authority or means to trace stolen money. That function is left for investigative institutions and individuals, local and international law enforcement agencies, forensic accountants and investigators and the Kenya Anti Corruption Commission (KACC), among others. All the Commission needed to do was seek the assistance of these institutions in unraveling the presumed mysteries surrounding the scam.
The Commission report fails to inform us what, if anything, it did to try and trace the missing loot. It also did not disclose, why - if indeed it tried – it failed to trace the billions of shillings still unaccounted for. This borders on gross negligence.
As a Commission of Inquiry, the Bosire body had specific tasks. These duties or functions were clearly enumerated in the Commission’s Terms of Reference.
I would be shocked if one of the terms was “to trace stolen money” of the Goldenberg scandal. This is because without the ability to fully, thoroughly and comprehensively “investigate” all suspected culprits, including but not limited to all their assets, bank accounts, investment accounts and those of their relatives, friends, business partners and/or associates, the Commission could not possibly have been in a position to track , trace or locate all the stolen loot.
For instance, why was the Commission unable to compel witnesses like the former president, Daniel arap Moi, to testify before it? Without the ability to compel the attendance of witnesses before it, how was the Commission supposed to fulfill one of its primary mandates?
If indeed the Commission was mandated to investigate and make findings on the stolen loot, then Justice Bosire’s report falls way below all expectations.
Justice Bosire and the handsomely compensated members of his commission and legal assistance team should have ensured that the Commission’s Terms of Reference were broad and far reaching enough so as to make their work effective.
If the appointing authority was either unwilling or unable to adjust the terms of reference in order to accommodate their input, then it was certainly open to these eminent sons and daughters of Kenya to decline to participate in the work of an otherwise toothless Commission.
As far as we can gather, they neither demanded a broadening of the Commission’s mandate, nor did any of them see fit to decline or resign his or her appointment.
Accordingly, it makes no sense for Justice Bosire to bemoan the Commission’s failure. That failure squarely rests at his feet.
It is difficult to understand why the Commission could not or did not seek the assistance of foreign countries, banking institutions and law enforcement agencies in attempting to unravel the mystery surrounding the missing billions. No answer has been forthcoming with respect to the role of the foreign forensic investigators. All we know is that they were reported to have been paid tens of millions of US dollars to locate or trace the Goldenberg loot. We have read in media reports loud proclamations from Kiraitu Murungi, in particular, that large sums of the missing loot had been located.
If Nigeria was able to trace and locate huge sums looted from its treasury by the former military strongman Abacha, why is Kenya unable to do the same?
Since large amounts of the missing money went through both the International Monetary Fund (IMF) and the World Bank, it would be interesting to learn what, if anything, the Commission did to obtain financial data as well as investigative findings of these two institutions.
Justice Bosire confessed that his Commission was only able to trace one asset, namely, the Grand Regency Hotel in Nairobi. How inept can a commission be to make such a ludicrous admission?
Almost all the key people associated with the Grand Regency Hotel are Kenyan. Even those who are not legally Kenyan residents are either in Kenya or could be repatriated back to Kenya. The questions that beg answers are: What steps did the Commission take to summon these people before it? Why couldn’t the Commission obtain relevant information of the culprits’ accounts and assets? Why should the Commission recommend further “investigation” in cases where it was in a position to fully investigate and conclusively determine the involvement of all the perpetrators? Why didn’t the Commission require complete accounting of all assets, accounts or investments of all suspects?
The information in the public domain is that there is more than credible, reliable and impeccable evidence that can sustain convictions in both the Goldenberg and Anglo Leasing related scams. Yet rather than arrest, charge and prosecute the perpetrators of these despicable mega frauds, the Kenyan authorities have chosen to establish commissions of inquiry in order to delay or subvert justice.
Justice Bosire made another shocking recommendation concerning the involvement of judges in commissions or inquiries. According to Justice Bosire, “judges should not chair or participate in politically sensitive commissions of inquiry…because weaknesses in a report may later be used against them, especially since Kenyan judges do not have a mechanism for appeal.”
Justice Bosire is more concerned about protecting judges like himself from “future” actions rather than discharging his duties fearlessly and completely. Justice Bosire appears to be looking for more guarantees for judges rather than seeking to protect the pubic interest. He seems not to have been contented with the judicial immunity and tenure. His option? Make us gods or leave us out of these messy, potentially dangerous and political inquiries.
If this troubling recommendation were to be implemented, then Kenyans could very well see judicial commissions chaired or wholly run by politicians. That makes my blood boil. I tremble and fear for Kenya.
President Kibaki’s statement when accepting the Goldenberg report was telling. He is reported as saying: “I’m very grateful for your effort and I am sure we shall take the action recommended in this report. We shall read the report and see what you say shall be done and I know it will be done.” [emphasis added]
Curious, isn’t it? Why would a head of state not categorically and immediately ORDER the arrest of all the people who the Commission clearly had implicated? Why hasn’t he (for crying out loud) even fired George Saitoti from his cabinet? In fact, with all that we have known in the past ten years about his central role, why in heaven’s name, was Saitoti appointed to the Kibaki cabinet in the first place?
The answers to these unanswered questions are more revealing than the Bosire recommendations. And that - fellow citizens - should make us all vomit.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada
