Post by miguna on Feb 18, 2006 2:29:47 GMT 3
THE PEOPLE OF KENYA DESERVE ACCOUNTABILITY FROM THE GOVERNMENT
By MIGUNA MIGUNA* - © 17 February 2006
When both the local Kenyan and international media frenziedly released and inundated the world with the contents of John Githongo’s dossier on Anglo Leasing and other related scams in the Kibaki government, many people believed that the dramatic revelations would inevitably lead to the complete airing of all the details of the corruption scandals. The public had good reasons to expect the unprecedented spotlight on president Kibaki’s senior government officials believed to have orchestrated the scams to result in the full and complete disclosure of all the evidence and the punishment of those implicated. This has not happened.
The public’s demands and expectations of accountability from the government should not be confused with the legal accountability expected of the alleged perpetrators as well as from the government itself. Political accountability simply means that the government and the public servants involved (i.e. the president, the cabinet as an institution, the ministers, parliament and senior civil servants) ought to answer to the public for all the alleged infractions. Appropriate “answer” in this case would include a comprehensive explanation by the government on how the scandals occurred, who were involved, which departments were involved, how much money was lost, returned or could have been lost, why the government’s internal mechanisms were unable or unwilling to detect or stop the scams from occurring, what the government has done or is doing in instituting institutional means of preventing this from ever occurring again, why the government failed to act expeditiously to unravel these fraudulent activities and why the government has not taken action against the perpetrators. But political accountability also entails that if or when the public is not convinced of the government’s explanations or actions, that the people have a right to demand that those responsible be fired, resign or be suspended. Ultimately, it is easy to gauge where public opinion and consensus is with respect to the government’s response.
So far, it is obvious that president Kibaki’s government has failed to satisfy the expectations of the Kenyan public on each score. The people no longer trust the government. They also have no faith or confidence in the government’s ability to discharge its functions and duties of governance.
Legal accountability comes in two faces. The first one is the identification, arrest and prosecution of everyone (including companies) involved in the massive theft. And secondly, the government was supposed to have carefully and diligently audited everyone involved, located all the looted assets or resources, identified all the people who gained – directly or indirectly - from these resources, and speedily moved to various courts of competent jurisdictions, sought the assistance of various international law enforcement agencies and requested the assistance of foreign governments, in order to locate, freeze, impound and eventually repatriate any assets or money looted from the identified scams and illegally transferred to those jurisdictions. In many instances those implicated deserve to be criminally punished and be compelled to incur civil liability as well.
The government cannot argue that it has no credible evidence on which to take legal action. It is common knowledge that all legitimate transactions involving the purchase and sale of real property in Kenya require the involvement of the lands office, advocates of the High Court of Kenya, the Kenya Revenue Authority and the various utility companies, agencies or departments. As well, anyone (including companies) that generate revenue in Kenya must remit income tax to the government annually. Even interests, dividends and capital gains from investments are subject to taxes. Income tax returns from all individuals, companies and other legal entities are collected, assessed and audited by the government. The government operates, runs and manages all court systems in the country, and therefore has access to all court orders, executions and judgments. This includes information regarding bankruptcies and insolvencies.
We need not even mention the intelligence gathering ability of the government as a means of detecting, locating and identifying assets.
Consequently, we expect the government to have all the information about the respective net worth of all the individuals concerned prior to December 2002 as well as what they now have (either in their names or through affiliated companies, associates, relatives, family or friends).
But even more importantly, the directives or orders by the Kenya Anti Corruption Commission (KACC) for those implicated to produce the required information cannot and should not be challenged at press conferences or through media releases like Murungaru and others have done. Whereas it is open for those targeted to move to court and seek orders prohibiting the KACC or any other statutory body from obtaining the information (as Murungaru tried twice and failed), those being investigated cannot simply announce that they will defy the orders. To do so constitutes contempt. No one (no matter how powerful) can be permitted to openly defy legitimate and lawful orders merely because one disagrees with the law(s) or orders. The option available for those like Murungaru is to appeal the court orders or challenge the directives in court. Alternatively, they can also apply to have any “undesirable” laws changed through parliament. They can also hold peaceful demonstrations against the laws. But even those holding demonstrations against the laws should be warned that their actions of civil disobedience cannot stop or prevent the authorized body from taking the necessary legal actions.
This situation is made controversial by the fact that the alleged perpetrators of grand corruption are senior government officials, politicians or their associates. Normally, the ordinary citizen is entitled to express his or her displeasure or disapproval of any laws through civil disobedience. That political right or privilege (of civil disobedience) is also extended to members of the political opposition and civil society activists. However, there seem to be no legal or moral grounds upon which a member or members of government (such as Murungaru, who is supposed to be a central pillar of the ruling party) – whether legitimately disgruntled or not – may purport to hold vigil against the laws that his or her government are required to enforce. Before anyone can be allowed to do that, he or she must first relinquish his or her political position. Metaphorically speaking, one cannot eat (the political goose) and have it, too.
What this means is that although Murungaru may be allowed (as an individual) to protest and peacefully demonstrate against the lawful directives of KACC or orders from the High Court, he cannot prevent the KACC or the courts from proceeding with their decision to freeze, seize, impound and/or confiscate assets that they have reasonable basis for believing were illegally, irregularly or unlawfully acquired. If Mr. Murungaru – or anybody else for that matter – refuses to cooperate and/or explain how they acquired their wealth, then they should also expect to be punished to the full extent of the law.
There are absolutely no breaches – real or imagined – of due process, constitutional or legal rights that those lawfully accused of crimes can cite or rely on. For Murungaru and his group of suspected thieves to appear credible, they must demonstrate to the people of Kenya that their hands are clean. They cannot do this by hiding under some arcane legal technicalities. After all, they have not been charged, and therefore, the assertion that they are being required to investigate and self-incriminate themselves do not arise. An innocent person cannot incriminate himself or herself.
Those arguing like Murungaru may be technically right on the general application of the broader legal principles. However, as everyone knows, each case is decided on its unique facts and circumstances. When one is dealing with ordinary Kenyans, the rules, procedures and applicable laws should apply in the exact manner described by Murungaru.
However, there is always an expectation that those in leadership positions are accorded all the privileges and comforts of life in exchange for the public’s unimpeded access to their personal and otherwise private affairs. That is why politicians are fair game when it comes to comments, discussions and intrusive interrogations by the media and members of the public. If these interrogations do not break known laws, then they are considered permissible, especially when they are intended to challenge public officials to account for themselves.
No one forced Murungaru or the other politicians to seek public office. As such, complete information about Murungaru’s wealth - and the wealth of all our leaders – is “public property”.
They ought to have declared their wealth before being sworn in as MPs, leave alone as serving cabinet ministers. This is the practice in all functioning modern democracies. It is also what was intended when the wealth declaration legislation was conceived and enacted. The prying eyes of the public is the price politicians must be prepared to pay in exchange for their massive pay cheques and privileges.
It is unacceptable to allow anyone to openly circumvent and/or defy the laws of the land in the manner we are seeing Murungaru and others do. A responsible, responsive and accountable government cannot beg alleged thieves for information that it has, ought to have and/or has the power and authority to obtain.
The avalanche of recent media reports on the Narc government’s corruption scandals helped bring pressure to bear on president Kibaki and necessitated the abrupt departure of former finance minister, David Mwiraria, energy minister, Kiraitu Murungi and education minister, George Saitoti. Months earlier, the same local and international pressures and shouts of indignations had seen former internal security minister Chris Murngaru not just banned from traveling to the United Kingdom, the European Union and the United States of America, it also saw him hounded from the cabinet. However, despite being thoroughly drenched by these reports, the government has neither fully accounted to the public regarding the scams nor has the public been satisfied by the belated and self-serving diversionary response.
In each instance, president Kibaki did not act transparently, swiftly and effectively. Although the public has been fed on a fat diet of delicious anecdotes, surreptitiously recorded conversations between Githongo and the pillars of the Narc administration and snippets of disclosure on the corrupt deals, the president has not bothered to provide even an incoherent explanation to the people. He did not even fire any of the ministers accused of corruption.
Although many commentators saw the exclusion of Murungaru from the so-called “reconstituted cabinet” as a dismissal, Murungaru’s employment was never actually directly terminated. What Kibaki did is analogous to having laid off the MP for Kieni. Kibaki neither reshuffled his cabinet nor left Murungaru out of the new team. He did not announce that he had relieved the humongous MP for Kieni. Neither did he offer any explanation as to why. By dissolving his government for more than two weeks and excluding Murungaru’s name from the reconstituted government, Kibaki saved Murungaru the humiliation of being fired. In fact, Murungaru has been widely quoted in the local media as boasting that it was him and not the president, who suggested that his name be left out of the new cabinet. Kibaki acted in the same mold concerning Kiraitu and Saitoti. Rather than fire these two or have them announce their own resignations, president Kibaki addressed Kenyans on live television and reported that the two had “stepped aside.” Again, he saved these two from public humiliation. It is interesting to note that even the reported departure of the president’s own personal assistant, Alfred Getonga, has never been formally confirmed. Neither has Getonga himself acknowledged it. None of the Anglo Fleecing suspects has been charged. Neither have we seen the full inventory of how much Kenyans lost or could have lost in these scandals. The public is still waiting for the “expeditious” release of both the Goldenberg and Ndun’gu Land Reports (as Kibaki promised more than two weeks ago). Even Githongo’s promised “detailed” and complete dossier has not been released to the public, yet.
Once more, there is overwhelming consensus among ordinary Kenyans that the government has failed to make the architects of grand corruption legally accountable. Or perhaps it cannot due to its own deep involvement and complicity in the crimes.
The public is morally, politically and legally entitled to insist on the two modes of accountability because the stolen assets belong to them. As well, the people themselves elected the government and appointed it as a custodian over these assets or resources. If the government fails to account for the loss, mismanagement or theft of the assets, then the public has a corresponding duty to withdraw its support, rescind its appointment and demand not just that the government be dissolved by virtue of its loss of confidence and legitimacy from the people, but also that the government returns all the looted assets or compensates the public for the said losses or misappropriations.
PS: I read with interest Murunganru's claim that he "worked very hard" since being appointed into the Kibaki cabinet and "earned every cent" he now has!
-MM-
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada
By MIGUNA MIGUNA* - © 17 February 2006
When both the local Kenyan and international media frenziedly released and inundated the world with the contents of John Githongo’s dossier on Anglo Leasing and other related scams in the Kibaki government, many people believed that the dramatic revelations would inevitably lead to the complete airing of all the details of the corruption scandals. The public had good reasons to expect the unprecedented spotlight on president Kibaki’s senior government officials believed to have orchestrated the scams to result in the full and complete disclosure of all the evidence and the punishment of those implicated. This has not happened.
The public’s demands and expectations of accountability from the government should not be confused with the legal accountability expected of the alleged perpetrators as well as from the government itself. Political accountability simply means that the government and the public servants involved (i.e. the president, the cabinet as an institution, the ministers, parliament and senior civil servants) ought to answer to the public for all the alleged infractions. Appropriate “answer” in this case would include a comprehensive explanation by the government on how the scandals occurred, who were involved, which departments were involved, how much money was lost, returned or could have been lost, why the government’s internal mechanisms were unable or unwilling to detect or stop the scams from occurring, what the government has done or is doing in instituting institutional means of preventing this from ever occurring again, why the government failed to act expeditiously to unravel these fraudulent activities and why the government has not taken action against the perpetrators. But political accountability also entails that if or when the public is not convinced of the government’s explanations or actions, that the people have a right to demand that those responsible be fired, resign or be suspended. Ultimately, it is easy to gauge where public opinion and consensus is with respect to the government’s response.
So far, it is obvious that president Kibaki’s government has failed to satisfy the expectations of the Kenyan public on each score. The people no longer trust the government. They also have no faith or confidence in the government’s ability to discharge its functions and duties of governance.
Legal accountability comes in two faces. The first one is the identification, arrest and prosecution of everyone (including companies) involved in the massive theft. And secondly, the government was supposed to have carefully and diligently audited everyone involved, located all the looted assets or resources, identified all the people who gained – directly or indirectly - from these resources, and speedily moved to various courts of competent jurisdictions, sought the assistance of various international law enforcement agencies and requested the assistance of foreign governments, in order to locate, freeze, impound and eventually repatriate any assets or money looted from the identified scams and illegally transferred to those jurisdictions. In many instances those implicated deserve to be criminally punished and be compelled to incur civil liability as well.
The government cannot argue that it has no credible evidence on which to take legal action. It is common knowledge that all legitimate transactions involving the purchase and sale of real property in Kenya require the involvement of the lands office, advocates of the High Court of Kenya, the Kenya Revenue Authority and the various utility companies, agencies or departments. As well, anyone (including companies) that generate revenue in Kenya must remit income tax to the government annually. Even interests, dividends and capital gains from investments are subject to taxes. Income tax returns from all individuals, companies and other legal entities are collected, assessed and audited by the government. The government operates, runs and manages all court systems in the country, and therefore has access to all court orders, executions and judgments. This includes information regarding bankruptcies and insolvencies.
We need not even mention the intelligence gathering ability of the government as a means of detecting, locating and identifying assets.
Consequently, we expect the government to have all the information about the respective net worth of all the individuals concerned prior to December 2002 as well as what they now have (either in their names or through affiliated companies, associates, relatives, family or friends).
But even more importantly, the directives or orders by the Kenya Anti Corruption Commission (KACC) for those implicated to produce the required information cannot and should not be challenged at press conferences or through media releases like Murungaru and others have done. Whereas it is open for those targeted to move to court and seek orders prohibiting the KACC or any other statutory body from obtaining the information (as Murungaru tried twice and failed), those being investigated cannot simply announce that they will defy the orders. To do so constitutes contempt. No one (no matter how powerful) can be permitted to openly defy legitimate and lawful orders merely because one disagrees with the law(s) or orders. The option available for those like Murungaru is to appeal the court orders or challenge the directives in court. Alternatively, they can also apply to have any “undesirable” laws changed through parliament. They can also hold peaceful demonstrations against the laws. But even those holding demonstrations against the laws should be warned that their actions of civil disobedience cannot stop or prevent the authorized body from taking the necessary legal actions.
This situation is made controversial by the fact that the alleged perpetrators of grand corruption are senior government officials, politicians or their associates. Normally, the ordinary citizen is entitled to express his or her displeasure or disapproval of any laws through civil disobedience. That political right or privilege (of civil disobedience) is also extended to members of the political opposition and civil society activists. However, there seem to be no legal or moral grounds upon which a member or members of government (such as Murungaru, who is supposed to be a central pillar of the ruling party) – whether legitimately disgruntled or not – may purport to hold vigil against the laws that his or her government are required to enforce. Before anyone can be allowed to do that, he or she must first relinquish his or her political position. Metaphorically speaking, one cannot eat (the political goose) and have it, too.
What this means is that although Murungaru may be allowed (as an individual) to protest and peacefully demonstrate against the lawful directives of KACC or orders from the High Court, he cannot prevent the KACC or the courts from proceeding with their decision to freeze, seize, impound and/or confiscate assets that they have reasonable basis for believing were illegally, irregularly or unlawfully acquired. If Mr. Murungaru – or anybody else for that matter – refuses to cooperate and/or explain how they acquired their wealth, then they should also expect to be punished to the full extent of the law.
There are absolutely no breaches – real or imagined – of due process, constitutional or legal rights that those lawfully accused of crimes can cite or rely on. For Murungaru and his group of suspected thieves to appear credible, they must demonstrate to the people of Kenya that their hands are clean. They cannot do this by hiding under some arcane legal technicalities. After all, they have not been charged, and therefore, the assertion that they are being required to investigate and self-incriminate themselves do not arise. An innocent person cannot incriminate himself or herself.
Those arguing like Murungaru may be technically right on the general application of the broader legal principles. However, as everyone knows, each case is decided on its unique facts and circumstances. When one is dealing with ordinary Kenyans, the rules, procedures and applicable laws should apply in the exact manner described by Murungaru.
However, there is always an expectation that those in leadership positions are accorded all the privileges and comforts of life in exchange for the public’s unimpeded access to their personal and otherwise private affairs. That is why politicians are fair game when it comes to comments, discussions and intrusive interrogations by the media and members of the public. If these interrogations do not break known laws, then they are considered permissible, especially when they are intended to challenge public officials to account for themselves.
No one forced Murungaru or the other politicians to seek public office. As such, complete information about Murungaru’s wealth - and the wealth of all our leaders – is “public property”.
They ought to have declared their wealth before being sworn in as MPs, leave alone as serving cabinet ministers. This is the practice in all functioning modern democracies. It is also what was intended when the wealth declaration legislation was conceived and enacted. The prying eyes of the public is the price politicians must be prepared to pay in exchange for their massive pay cheques and privileges.
It is unacceptable to allow anyone to openly circumvent and/or defy the laws of the land in the manner we are seeing Murungaru and others do. A responsible, responsive and accountable government cannot beg alleged thieves for information that it has, ought to have and/or has the power and authority to obtain.
The avalanche of recent media reports on the Narc government’s corruption scandals helped bring pressure to bear on president Kibaki and necessitated the abrupt departure of former finance minister, David Mwiraria, energy minister, Kiraitu Murungi and education minister, George Saitoti. Months earlier, the same local and international pressures and shouts of indignations had seen former internal security minister Chris Murngaru not just banned from traveling to the United Kingdom, the European Union and the United States of America, it also saw him hounded from the cabinet. However, despite being thoroughly drenched by these reports, the government has neither fully accounted to the public regarding the scams nor has the public been satisfied by the belated and self-serving diversionary response.
In each instance, president Kibaki did not act transparently, swiftly and effectively. Although the public has been fed on a fat diet of delicious anecdotes, surreptitiously recorded conversations between Githongo and the pillars of the Narc administration and snippets of disclosure on the corrupt deals, the president has not bothered to provide even an incoherent explanation to the people. He did not even fire any of the ministers accused of corruption.
Although many commentators saw the exclusion of Murungaru from the so-called “reconstituted cabinet” as a dismissal, Murungaru’s employment was never actually directly terminated. What Kibaki did is analogous to having laid off the MP for Kieni. Kibaki neither reshuffled his cabinet nor left Murungaru out of the new team. He did not announce that he had relieved the humongous MP for Kieni. Neither did he offer any explanation as to why. By dissolving his government for more than two weeks and excluding Murungaru’s name from the reconstituted government, Kibaki saved Murungaru the humiliation of being fired. In fact, Murungaru has been widely quoted in the local media as boasting that it was him and not the president, who suggested that his name be left out of the new cabinet. Kibaki acted in the same mold concerning Kiraitu and Saitoti. Rather than fire these two or have them announce their own resignations, president Kibaki addressed Kenyans on live television and reported that the two had “stepped aside.” Again, he saved these two from public humiliation. It is interesting to note that even the reported departure of the president’s own personal assistant, Alfred Getonga, has never been formally confirmed. Neither has Getonga himself acknowledged it. None of the Anglo Fleecing suspects has been charged. Neither have we seen the full inventory of how much Kenyans lost or could have lost in these scandals. The public is still waiting for the “expeditious” release of both the Goldenberg and Ndun’gu Land Reports (as Kibaki promised more than two weeks ago). Even Githongo’s promised “detailed” and complete dossier has not been released to the public, yet.
Once more, there is overwhelming consensus among ordinary Kenyans that the government has failed to make the architects of grand corruption legally accountable. Or perhaps it cannot due to its own deep involvement and complicity in the crimes.
The public is morally, politically and legally entitled to insist on the two modes of accountability because the stolen assets belong to them. As well, the people themselves elected the government and appointed it as a custodian over these assets or resources. If the government fails to account for the loss, mismanagement or theft of the assets, then the public has a corresponding duty to withdraw its support, rescind its appointment and demand not just that the government be dissolved by virtue of its loss of confidence and legitimacy from the people, but also that the government returns all the looted assets or compensates the public for the said losses or misappropriations.
PS: I read with interest Murunganru's claim that he "worked very hard" since being appointed into the Kibaki cabinet and "earned every cent" he now has!
-MM-
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada