KENYA:
A Corruption Suspect's Best Friend? The Law
Darren Taylor
NAIROBI, Feb 22 (IPS) - Kenya's government will find itself hard put to
reclaim public funds that have been misappropriated in a string of corrupt
deals linked to state officials and businesspeople, say legal and banking
sources in the East African country.
These sentiments were voiced as the administration claimed it was taking
action to track down stolen money.
"We're freezing and recovering all assets purchased with the proceeds of
corruption. We'll freeze bank accounts and prosecute implicated
individuals," Justice Minister Martha Karua noted recently, saying officials
had identified buildings and land for repossession.
However, Albert Mumma, a highly-regarded lawyer, says that under Kenya's
Economic Crimes Act assets allegedly acquired by means of corruption can
only be confiscated once a myriad of legal processes has been followed -
and the state has proved beyond doubt that the cash or property concerned
was obtained through graft.
"This would take a long, long time to prove," he told IPS. "We would be
sitting in court hearings for years."
Such statements are bound to dampen the spirits of Kenyans who had hoped
the current hue and cry about graft would lead to swift recovery of stolen
funds.
The Kenya Bankers Association (KBA) notes that altering legislation to
streamline asset seizure would probably be a lengthy and complicated process
that frustrated attempts to regain lost wealth still further.
KBA official Joseph Wanyela also claims it would be difficult to trace
illegally-acquired money deposited in Kenyan banks as there is currently no
law which supersedes the confidentiality clause binding these banks to their
customers.
In addition, legislation was required to define how persons who
unknowingly bought property from those who obtained it through graft, should
be treated.
"Surely they would have to be compensated?" Wanyela asks. "The government
must not act without thinking otherwise it may open itself up to law suits."
Previous asset recovery efforts have been described as "half-hearted" by
a former chair of Kenya's Law Society, Ahmednasir Abdullahi.
In 2003, shortly after President Mwai Kibaki came to power, the
government announced that it had contracted an international firm of
forensic accountants and investigators, Kroll Associates, to find money
plundered under the former regime.
Less than a year later Kiraitu Murungi, then minister of justice,
revealed that Kroll had traced almost a billion dollars to banks in
Switzerland, Luxembourg, Austria, the Netherlands, Italy, the United Kingdom
and the Gulf States. He pledged to recover the cash.
It was also reported that Kenya intended to ask for South Africa's help
in establishing whether illegally-acquired funds had been used to buy
property in that country.
However, "No request for help in tracing any money invested in South
Africa has ever been made to us by the Kenyans," said a spokesman for the
South African High Commission in Kenya, Izak Barnard.
During a meeting in the capital of Nairobi in 2005, Murungi struck a
different note on the matter of tracing looted millions, saying "The
contradiction in transition anti-corruption strategies is whether...scarce
resources should be invested in digging up the rotten past or in creating a
better, corruption-free future."
He has since become one of two ministers to lose their posts over
investigations into Anglo Leasing and Finance Limited, a fictitious firm
that was nonetheless awarded contracts to supply a system for producing
passports that could not be forged - and for building police forensic
laboratories.
A report into the matter by former permanent secretary for governance and
ethics John Githongo prompted the resignations of Murungi, since moved to
the energy portfolio, and his counterpart at finance, David Mwiraria. The
document was leaked to the media earlier this year.
The British Broadcasting Corporation has also broadcast a tape recorded
by Githongo on which Murungi is allegedly heard asking the former secretary
to slow investigations into Anglo Leasing in exchange for lenient treatment
of his father in connection with a bank debt.
Education minister George Saitoti has also resigned, over a separate
scandal known as the Goldenberg affair. This scam involved the manipulation
of an export compensation scheme in the early 1990s that resulted in at
least 600 million dollars being looted from government. It takes its name
from the company at the heart of the saga: Goldenberg International, owned
by Kamlesh Pattni.
A commission of inquiry into the Goldenberg affair that was instituted by
President Mwai Kibaki soon after he came to office has found that Pattni and
various government officials colluded in the fraud, which involved the
fictitious export of gold and diamonds.
According to Pattni, a substantial portion of funds stolen through the
export compensation scheme was used to bankroll the Kenya African National
Union ahead of the 1992 general election, which saw the party sweep to
victory amidst claims of vote rigging.
The fate of other funds is less clear, however.
"A lot of money was siphoned out of the country by the Goldenberg scheme,
but we were unable to trace it," commission chair Samuel Bosire has
concluded. As investigations into this matter continue, Saitoti and 19 other
persons implicated in the scam have been asked to surrender their passports.
Githongo says that the networks of corrupt officials and businesspeople
which thrived under former president Daniel arap Moi continued to operate
after Kibaki came to power at the end of 2002.
He also claims that Kibaki was aware that the dealings with Anglo Leasing
were suspect, but did not take action. (END/2006)
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