Mars Group Blog

Unfortunately, just as it is beginning its important work it is obvious that the Kenyan Truth Justice and Reconciliation Commission is suffering a real crisis of public confidence because of some of its Commissioners’ antecedents, and because we are arguing Parliament dropped the ball in the vetting and confirmation process. This crisis will affect Kenyans’ belief in transitional justice and turn many into cynics. It is time to recognise that as Freeman and Hayner of the International Center for Transitional Justice wrote “perhaps more than any other single factor, the persons selected to manage a truth commission will determine its ultimate success or failure.”

Bethuel Kiplagat, the Chairman, and his fellow Commissioners of the Truth Justice and Reconciliation Commission are losing public trust in important quarters. Several prominent victims of past human rights violations and organised groups have raised issue with the composition of the Kenyan Truth Justice and Reconciliation Commission.  Some have gone to court.  The first sessions of the Truth Commission have been disrupted on two occasions this past week.  Other prominent victims have vowed never to appear before the Truth Commission as presently constituted. How will the Truth be known in such an environment? How will we get to Justice and Reconciliation?

Protest against its composition erupted even before the Truth Commission was sworn in. The Chairman Mr. Kiplagat was even constrained to go on television before being sworn in to mount a defence to the accusations against him. When the constitution of a Truth Commission is as controversial as that of the Kenyan Truth Justice and Reconciliation Commission, it is logical to look back at how the Commissioners were appointed. As is typical in Kenya what should be a simple exercise of looking at the nomination process is easier said than done because the Report of the Parliamentary Committee which approved the final shortlist from which President Kibaki chose the Truth Commissioners is not a public document. It is not available for example on Parliament’s website. The proceedings of the Selection Panel which gave Parliament names to look at were not conducted in, nor have they been made, public. So Kenyans have to take at face value what they are being told reportedly – that the process was open and consultative. Or maybe they don’t.

Whereas defenders of the Truth Commission membership (including the Minister for Justice Mutula Kilonzo and Ababu Namwamba) say that the appointment followed a consultative process, presumably at the level of the statutory selection panel, the Hansard of Parliament shows that Kenyan Members of Parliament didn’t spend more than a few minutes considering the report on the nominees to this important Agenda 4 institution. 

What transpired in Parliament that day comprised of superficial assessment of the report and generalised praise for every name proposed.This cursory vetting by Parliament explains why Bethuel Kiplagat’s Commission now finds itself attacked for some of its members’ past roles in the subject matter they will be taking evidence from Kenyans on.

It’s a bad start for a process that was never likely to succeed in achieving truth, justice and reconciliation.  Such forms of transitional justice are usually successful after regime changes and new democratic dispenstions.  It is never wise to place transitional justice institutions in the hands of members of the ancien regime.  It was always going to be difficult, but surely not impossible, to find Kenyans of sufficient credibility and stature who could serve as Commissioners of a credible unchallengeable Truth Commission.  It was always going to be easier to ignore the instinct for self-interest, self-preservation and the temptation to cover-up human rights violations.  But the easy way, as in this Kenyan case, often becomes the rigged or the foolhardy path.   The persons who selected Ambassador Kiplagat as Chairman of the Truth Commission presumably knew what they were doing but history will always demonstrate that ancien regime actors do not make the best transitional justice mid-wives. Whatever their reasons, personal or ideological, those who appointed the Kenyan Truth Commission have damaged the prospects of the Commission’s success terminally.

We go on record to say that we are concerned about the credibility deficit of the Chairman and a couple of other commissioners of the Truth Justice and Reconciliation Commission.  The situation is deteriorating to the extent that even television straw polls now show that no sensible Kenyan is likely to believe in Truth, Justice or Reconciliation delivered by processes such as the Truth Commission headed by a retired public officer, whose career apex coincides with the height of gross human rights violations, and who spent this part of his career publicly denying that such violations were occurring.  Ambassador Kiplagat is known for his diplomatic sense.  Surely he can see that ‘toughing this one out’ is not an option?  Gentlemen resign when their ability to deliver is questioned by the intended beneficiaries of their work.  This is not an admission.  It is recognizing that the point of the Truth Commission is to heal victims; to restore their dignity not to irritate them; definitely not to cause any Kenyan victim or otherwise unnecessary agitation.  The healing work of the Commission is not severable.  Just because not every single category of victim is complaining doesn’t mean your mandate is sound.  Don’t demand that a tribunal be constituted against you under section 17 of the Truth Justice Reconciliation Act.  Do the right thing Ambassador Kiplagat.  Quit for Kenya.

We think that Parliament should, and really could, have done more enquiring for Kenyans.  It could have, and should have delayed its adjournment in late June for at least a week to show Kenyans they were serious about who would sit on the Truth Commission. This was, after all, the very last business of the entire parliamentary session and the key work MPs were required to do was to ensure implementation of the letter and the spirit of the Truth, Justice and Reconciliation Act 2008 and make it possible to provide a free and reconciliatory forum to enable all interested victims and Kenyans generally to deal with past injustices.  Just how inadequate the prior scrutiny of the members of the Truth Justice and Reconciliation Commission was, is demonstrated by this complete record of the debate that preceded the appointment of the Kenyan Truth Justice and Reconciliation Commission last year.  It doesn’t inspire confidence in Parliament as a vetting institution.  Had there been a full debate in Parliament would Kenya have a more credible version of a Truth Commission?  We think it would.

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NATIONAL ASSEMBLY

OFFICIAL REPORT

Thursday, 25th June, 2009

The House met at 2.30 p.m.

[Mr. Speaker in the Chair]

Page 66

MOTION

ADOPTION OF REPORT ON NOMINATION OF COMMISSIONERS TO THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION

Mr. Abdikadir: Mr. Deputy Speaker, Sir, I beg to move the following Motion:-

THAT, this House adopts the Report of the Departmental Committee on

Justice and Legal Affairs on the Nomination of Commissioners to the Truth,

Justice and Reconciliation Commission laid on the Table of the House on

Thursday, May, 28, 2009.

Mr. Deputy Speaker, Sir, the Truth, Justice and Reconciliation Act, 2008 is an Act of Parliament to provide for the establishment of the Truth, Justice and Reconciliation Commission and for connected purposes. Vide Part II of the Act, the establishment, powers and functions of the Commission are set out. The membership of the Commission is stipulated in the provisions of Section 10.

The mandate of the Committee was to nominate nine persons for appointment to the Commission pursuant to the provisions of the Act. The Act, indeed, provides for a selection panel made up of nine members, including those listed in the Report. The Committee received the Report from the Selection Panel which they did after advertising and interviewing numerous people who intended to serve in this Commission. The Committee observed that in accordance with the Truth, Justice and Reconciliation Commission Act, the Selection Panel had invited applications from persons to be nominated as Commissioners. It considered the applications, ranked them and provided comments regarding each of the finalists to the Kenya National Assembly.

In accordance with the law, the Selection Panel sent a list of 15 qualified Kenyans. In keeping with the provisions of the law, the Committee selected nine persons for nomination, taking into consideration the requirements as set out under the provisions.

My Committee thereafter, resolved to nominate the following for appointment as Commissioners:-

(1) Amb. Bethuel Kiplagat, MBS,

(2) Mr. Thomas Letangule,

(3) Miss Margaret Chava,

(4) Mr. Tom Ojienda,

(5) Rev. Dr. Timothy Njoya,

(6) Miss Betty Murungi,

(7) Mr. Abubakar Zein,

(8) Miss Tekla Namachanja,

(9) Maj-Gen. (Rtd.) Ahmed Sheikh.

Mr. Deputy Speaker., Sir, the Committee further noted the names in the minutes forwarded by the Eminent African Personalities as follows:-

(1) Miss Gertrude Chawatama from Zambia,

(2) Mr. Berhanu Dinka from Ethiopia,

(3) Mr. Ronald Sly from the United States of America (USA).

It is, therefore, the recommendation of the Committee that the people mentioned above be, indeed, nominated to be Commissioners to the Truth, Justice and Reconciliation Commission (TJRC). The law requires that the names, once approved, be sent to the President, and the President will pick six out of the nine nominees, if approved by this House.

Mr. Deputy Speaker, Sir, on behalf of the Members of the Departmental Committee on Administration of Justice and Legal Affairs, I wish to present to the House the Report of the Committee and the names of the nine qualified candidates, and the names of the three nominees nominated by the Panel of Eminent African Personalities for further consideration and subsequent adoption by the House.

With those remarks, I beg to move and ask Mr. Njoroge Baiya to second the Motion.

Mr. Baiya: Thank you, Mr. Speaker, Sir. I can confirm that this Report has received full deliberation of the Departmental Committee on Administration of Justice and Legal Affairs, and that the whole process was as explained by the Chairman. We are very clear that if this team receives the approval of the House, and also the approval of the President, it will deliver to the expectations of Kenyans.

Mr. Deputy Speaker, Sir, with those remarks, I beg to second.

(Question proposed)

The Minister for Justice, National Cohesion and Constitutional Affairs (Mr. M. Kilonzo): Mr. Deputy Speaker, Sir, I would like to take this opportunity to thank you for giving me this chance to, first of all, congratulate the Committee and all its Members.

I would also like to take this opportunity to congratulate the Selection Panel and the Serena Team as well as the National Accord Implementation Committee for the work that has been put into this process of national healing.

These proposed Commissioners are very important. I want to assure the House that my Ministry will go out of its way to ensure that we make it possible for them to do the work that they are expected to do as expeditiously as possible, for purposes of national healing.

Mr. Deputy Speaker, Sir, this is a very special year for this country, when we are grappling with very many issues, including Agenda Four, and above all, a new constitutional order. I beg to support this Motion and urge hon. Members to support it because it will go a long way towards the realization of this country of the nationhood that it so desperately needs.

I beg to support.

The Minister for Nairobi Metropolitan Development (Mr. Githae): Thank you, Mr. Deputy Speaker, Sir, for this opportunity. I stand here to support this Motion that we should approve these names. I wish to take this opportunity to thank the committee for a job well done. I wish to thank the selection panel which was composed of various stakeholders; that is, FIDA, Kenya National Commission on Human Rights (KNCHR), Law Society of Kenya(LSK), Kenya Private Sector Alliance (KEPSA), SUPKEM, Hindu Council of Kenya, COTU and Kenya Medical Association, for a job well done.

I have looked at the names of the proposed commissioners. I have no doubt that Amb. Bethwel Kiplagat, Mr. Thomas, Letangule, Margaret Shava, Tom Ojienda, Rev. Timothy Njoya, Ms. Betty Murungi, Abubakar Zein, Ms. Tekla Namachanja and Maj-Gen. Rtd Ahmed Sheikh, will do a good job. Even the people appointed by the panel of eminent persons, these are: Getrude Chawatamu from Zambia, Mr. BerhanuDinka from Ethiopia and Mr. Ronald Sly from the United States of America, will do a good job.

This Commission should have been appointed yesterday, so that it can go into all these causes like what happened after the elections, who brought about the chaos—

Where people confess to the crimes they did, then there should be a provision for giving them some kind of immunity.

With those words, I support.

Mr. Ruteere: Mr. Deputy Speaker, Sir, since there is consensus that we accept these names, am I in order to request that the Mover be called upon to reply?

Mr. Deputy Speaker: If that is the mood of the House, let the Mover reply.

Mr. Abdikadir: Mr. Deputy Speaker, Sir, I beg to move.

(Question put and agreed to)

MOTION FOR ADJOURNMENT

————

Background to the Truth Justice and Reconciliation Commission: Kenya has a history of political violence and gross human rights violations dating back to its Independence from Britain in December 1963. Documented violations include political assassinations, extra judicial executions of civilians, collective punishment and torture of minority populations, massacres by security forces including the army, torture of persons in custody, enforced disappearances and ethnic cleansing. For 39 years the KANU party ruled Kenyans and controlled government. Following the defeat of the KANU party in December 2002, the new coalition government headed by Mwai Kibaki commissioned an inquiry into policy actions to deal with past gross violations of human rights.

In August 2003, the Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation
Commission chaired by Prof. Makau Mutua was published. It stated that “Kenyans have asked their government to immediately establish a truth, justice, and reconciliation commission. They have overwhelmingly said that the truth about the past must be known, that perpetrators must be identified and punished, that victims must be accorded justice, and that reconciliation is only possible after the truth is known and justice is done. Kenyans want an effective and credible truth commission, an institution that will not engage in a witch-hunt or a whitewash. Such a commission must have the powers to recommend lustration, that is, to bar offenders from holding public office. It must be empowered to recommend redress for victims, such as compensation, restitution, and reparations. It should be authorized to inquire into stolen property and funds, and to recommend that they be returned to the public or the individuals from whom they were stolen. The truth commission should investigate gross human rights violations and economic crimes and recommend prosecutions.”

This important work by the Makau Mutua Task Force was immediately shelved and forgotten. The outrages of the post election violence of 2007-8 created a new impetus for transitional justice and in March 2008, the parties to the Kenya National Dialogue and Reconciliation agreed that a statutory Truth Justice and Reconciliation Commission should be established for a 2 year term and be mandated to inquire into human rights violations, grand corruption and international crimes committed between December 12th 1963 and February 28th 2008. The Truth Justice and Reconciliation Act which established the Kenyan Truth Commission came into effect on March 9th 2008. A Selection Panel conducted interviews and short listed the names of 15 potential Commissioners for Parliamentary approval. The Selection Panel was made up of persons nominated by the Kenya Episcopal Conference, National Council of Churches of Kenya, Evangelical Alliance of Kenya, Hindu Council of Kenya, Seventh Day Adventist Church, Supreme Council of Kenya Muslims, Law Society of Kenya, Federation of Kenya Women Lawyers, Central Organization of Trade Unions, Kenya National Union of Teachers, Association of Professional Societies of East Africa, Kenya National Commission on Human Rights, Kenya Private Sector Alliance, Federation of Kenya Employers, and the Kenya Medical Association. It’s proceedings were not conducted in, nor have they been made, public.

In June 2009 Parliament approved the names of Kenyans and foreign experts for submission to the President to appoint the Commission. President Kibaki appointed the 9 member Commission in July 2009. An annual budgetary allocation of only 100 million shillings meant that in 2009 the Commission hardly made a dent in public consciousness, and it wasn’t until January 2010 that the Commission announced a nationwide public meetings schedule intended to make a preliminary assessment of the historical grievances Kenyans have.

Tags: 1963, 2009, 28, Abdikadir Mohamed, Abubakar Zein, Act of Parliament to provide for the establishment of the Truth, Agenda 4, Agenda Four, Ahmed Sheikh, Association of Professional Societies of East Africa, Berhanu Dinka, Bethuel Kiplagat, Betty Murungi, Central Organization of Trade Unions, confession, COTU, crimes, December 12th 1963, Departmental Committee on Administration of Justice and Legal Affairs, establishment powers and functions of the Truth, Ethiopia, Evangelical Alliance of Kenya, February 28th 2008, Federation of Kenya Employers, Federation of Kenya Women Lawyers, FIDA, Gertrude Chawatama, Hansard of Parliament, Hindu Council of Kenya, http://www.bunge.go.ke/parliament/downloads/tenth_third_sess/hansard/25.06.09.pdf, http://www.twitter.com/marsgroupkenya, human rights violations, immunity, impunity, Indemnity Act, Independence, Justice and Reconciliation Act 2008, Justice and Reconciliation Commission, Justice and Reconciliation Commission and for connected purposes, Justice and Reconciliation Commission laid on the Table of the House on Thursday, Kenya Episcopal Conference, Kenya Medical Association, Kenya National Assembly, Kenya National Commission on Human Rights, Kenya National Dialogue and Reconciliatio process, Kenya National Union of Teachers, Kenya Private Sector Alliance, Kenyan Truth Justice and Reconciliation Commission, Kenyatta era, KEPSA, KNHCR, Kofi Annan, Law Society of Kenya, LSK, Maj-Gen. (Rtd.) Ahmed Sheikh, Margaret Chava, Mars Group, Mars Group Kenya, Mars Group tv, marstv, May, members of parliament, membership of the Truth, Minister for Justice, Minister for Nairobi Metropolitan Development, Motion on the Adoption of the Report on the Nomination of Commissioners to the Truth, Mutula Kilonzo, Mwai Kibaki, Mwalimu Mati, Natioal Assembly, National Accord and Reconciliation Act, National Accord Implementation Committee, National Cohesion and Constitutional Affairs, National Council of Churches of Kenya, national healing, Njeru Githae, Njoroge Baiya, Nyayo era, OFFICIAL REPORT, Panel of Eminent African Personalities, parliament, President of Kenya, Prime Minister of Kenya, Raila Odinga, Report of the Departmental Committee on Justice and Legal Affairs on the Nomination of Commissioners to the Truth, Ronald Sly, Ruteere, Selection Panel, Serena Team, Seventh Day Adventist Church, SUPKEM, Supreme Council of Kenya Muslims, Tekla Namachanja, Thomas Letangule, Thursday 25th June, Timothy Njoya, Tom Ojienda, torture, truth, United States of America, USA, vetting, Zambia

The Power of Whispers and Suggestion: Did influential aspects of the Kenyan media help blunt the effect of findings of the Judicial Commission of Inquiry into the sale of the Grand Regency? This is unforgivable. A wrong the media must surely correct in the Public Interest.

Friday, 29 January 2010

The Cockar Commission Report on the Sale of the Grand Regency Hotel which President Mwai Kibaki received thirteen months ago and is today suppressing makes sad reading about the conduct of a Minister and two Central Bank of Kenya officials who were under scrutiny for a scandalous transaction in which the Central Bank of Kenya speedily transferred ownership of the Grand Regency Hotel to a LAICO (the Libya Africa Investment Company) ostensibly a Libyan/Kenyan corporation in April 2008. But you would never have known this if your sole source of information was the Kenyan media in November 2008.

The media coverage on the day President Kibaki received the Judicial Commission of Inquiry report late November 2008 was unusually certain as to the contents of the report. Review of the contemporaneous coverage of the handover of the Grand Regency Hotel Inquiry Report shows Kenyan audiences and readers were repeatedly told that the key political figure at the heart of the inquiry Amos Kimunya ex-Finance Minister had been or would be exonerated and returned to cabinet. The speculative reporting was couched as being based on insider information and sources.

Now that copies of the Cockar Commission Report are available it is clear that the Cockar Commission far from absolving Mr. Kimunya actually found that “the Hon Amos Kimunya was not directly involved in the sale of the Hotel. However, he was briefed about what CBK was doing towards the disposal of the Hotel to LAICO. On 29thApril 2008, he did not give Parliament and the people of Kenya the true picture on the impending sale of the Hotel to LAICO. As the Minister responsible for the affairs of the CBK) he must take responsibility for the questionable disposal of the Hotel.”

Spin trumped journalism in the handling of the Cockar Commission’s findings regarding Amos Kimunya’s, Prof Ndungu’s and Kennedy Abuga’s conduct. The latter two gentlemen it is now clear were the prime movers in this transaction which was tainted by misrepresentation and deception. But in November 2008, influential aspects of the Kenyan media helped blunt the effect of findings by a Judicial Commission of Inquiry chaired by a respected former Chief Justice of Kenya, and that is something unforgiveable. A wrong the media must surely correct.

The media aided the return to Cabinet of a Minister who had misled Parliament and gotten himself sanctioned by his Parliamentary peers; and ensured the continued tenure of a Governor and Director of the Central Bank of Kenya who might otherwise have had to resign or be sacked from their jobs.

In those late November 2008 days the press let Kenyans down. Across the board from the right to left of the media spectrum reporters fell over themselves to suggest imminent exoneration even before the Cockar Commission Report had been presented. So for example the Kenya Times ran a story that claimed it had interviewed a source who was able to inform the reporter that “The commission found out that Kimunya is not guilty because he did not play any pertinent role in disposing off the hotel to the Libyan investors despite the fact that he was the Finance minister. Apart from Orengo’s baseless claims there was no other witness who implicated Kimunya of any offence.”

This was carried the morning the President was due to receive the report. But the Kenya Times went further to fix public opinion stating as a matter of fact that the Cockar Report would find that the sale of the Grand Regency Hotel was a completely legit Kenya government-to-Libya government deal. Quite the opposite of what the Cockar Commission actually found; which was that the Central Bank Governor conjured up a “non-existent and unbelievable excuse that the sale was a Government to Government transaction. This excuse enabled him to execute the sale and, with such alacrity and secrecy, get the transfer registered within less than three working days.”

After reading what Ex- Chief Justice Cockar said on the government-to-government transaction excuse, one is left to wonder what motivated the Kenya Times Reporter on November 24th 2008 to write “The report says the sale of the hotel was a ‘government project’ which was sanctioned by all relevant State authorities adding that Central Bank of Kenya (CBK) was obliged to fast track the sale since it was a government-to-government deal. According to a confidential brief the Governor produced before the commission as evidence, Kibaki sanctioned the sale of the hotel to LAICO during his visit to Libya” in June 2007.

More media houses including Citizen TV and NTV jumped in with breathless accounts of the same kind. Thus a Citizen TV Reporter would narrate on the 9 o’clock news about the just handed over Cockar Report “those who have seen it claim it has cleared former Finance Minister.” An ordinarily respected Nation TV reporter’s piece that day gave the impression that Hon. Kimunya was off the hook by citing sources who said Hon. Kimunya played no role in the sale, but omitting the Cockar Report finding that Kimunya mislead Parliament and the public, and on that basis must take responsibility for the transactions undertaken by the Central Bank Governor and Secretary which transferred the Grand Regency in a three day period to LAICO. Another TV station KTN ran its first story of the evening along the lines of “speculation is rife that Kimunya may find his way back to Cabinet with observers expecting a not guilty verdict.” Print press pursued the matter, and by the day after the report handing over ceremony the Daily Nation was reporting that “though the Cockar Commission, which was appointed to investigate the sale of the Grand Regency Hotel, absolved Mr. Kimunya of any wrongdoing, it accused Treasury of failing to issue proper policy guidelines during the sale of the hotel.” No such conclusion could possibly be reached after reading the Cockar Report or receiving an honest brief from a credible source. Unfortunately, the entire Commission remained silent as its report was being discredited; but perhaps they believed that shortly their report would be made public and all would be cleared up.

Were some media houses involved in an unwitting cover-up? Were professional standards met? Who briefed them to tell Kenyans that the Cockar Commission had exculpated Amos Kimunya the hapless former Finance Minister now Minister for Trade; and accepted the government-to-government transaction red herring created by the Central Bank Governor? Who stood to gain by manipulating the press and why did the press go for it? What effect did the inaccurate coverage have on the required investigation into the bona fides of the LAICO ‘purchaser’ and all aspects of the Grand Regency sale transaction? Such is the stuff that a Media Council Investigation would (in a decent society) be made of. To the Kenyan Media Council; can we have an investigation?

Postscript: The day after the Cockar Report was presented to President Kibaki, Permanent Secretary for Finance Joseph Kinyua told NTV station that Commissions of Inquiry were a financial burden to the Treasury. The irony being that the Permanent Secretary had avoided appearing before the Cockar Commission to explain what if any explanation there could be for the misleading statements made by the Minister for Finance to Parliament in April 2008.

In January 2009, two months after receiving the damning report of an inquiry into the conduct of his former Minister of Finance, Amos Kimunya, President Mwai Kibaki reappointed Mr. Kimunya to the key Ministry of Trade and Investment. There was a brief moment of outrage in Parliament which subsided after a Speaker’s Ruling which reaffirmed the Executive’s right to appoint its members from amongst Members of Parliament particularly in the absence of an incriminating report on which Parliament could stand against a Minister. The irony is that the former Finance Minister was not exonerated by the time of his reappointment as many had been led to believe was the import of the Cockar Report. A report which was being suppressed by the Minister’s appointing authority, the President. By the power of whispers and suggestion, Kenyans were led to believe that that former Chief Justice Cockar had delivered an exculpation of Amos Kimunya and that the transaction he was investigating was a government transaction and contrary to assertions completely transparent and economical. Nothing could have been further from the truth.

In February 2009, the Nation (see links below) and East African Standard ran stories interrogating the content of the Cockar Report. This time around their sources were true but nothing could be done to shake the wider public’s opinion created by their own coverage in November 2008 that after all the hullabaloo about the Grand Regency Hotel sale, nothing amiss had happened. And that dear Kenyans is why Amos Kimunya is still a Cabinet Minister and Prof Ndungu and Kennedy Abuga remain at the Central Bank of Kenya working for you.

Mwalimu Mati
Mars Group Kenya

further links to stories run in 2009 by the Nation
MPs’ fury over Kimunya return
Grand regency sale was ‘secret and hasty’
Kimunya didn’t give Kenyans the full picture: report
Cockar report: Grand Regency transaction was not transparent

Tags: alacrity, Amos Kimunya, Antony Oteng'o Ombwayo, Appendix A – Kenya Gazette Special Issue 11th July 2008, Appendix B – Kenya Gazette Special Issue 22nd July 2008, Appendix C – Kenya Gazette Special Issue 12th August 2008, Appendix D – Kenya Gazette Special Issue 12th September 2008, Appendix E – Kenya Gazette Special Issue 3rd October 2008, Appendix F – Kenya Gazette Special Isue 31st October 2008, Appendix G – List of Witnesses – Commission of Inquiry into the sale of the Grand Regency Hotel, Appendix H – List of Exhibits – Commission of Inquiry into the sale of the Grand Regency Hotel, Appendix I – Proposed Investment Projects by Libya Africa Investment Portfolio (LAP) in Kenya under Active Consideration – Memorandum dated June 5th 2007 – signed by Kiraitu Murungi and Bitange Ndemo , Appendix J- Confidential Brief by the Central Bank of Kenya on the Grand Regency Hotel April 2008, Appointment of Commission, Attorney General, Bitange Ndemo, Board Secretary of CBK, bosire commission, Cabinet, CBK, Central Bank of Kenya, Central Bank of Kenya Act, Chamber, Charles Arap-Kirui, Chief Justice (Rtd) Abdul Majid Cockar, Chief Justice Cockar, Chief Justice of Kenya, Citizen TV, Cockar Commission Report, Commission of Inquiry, Commissioner for Lands, Commissions of Inquiry Act, Company Secretary, Consent Orders, Corruption, CTV, deception, Differences Between KACC and Central Bank of Kenya (CBK), Director of the Central Bank of Kenya, Dr. Bitange Ndemo, East African Standard, ex-Finance Minister, exhibit, Francis Etole, Gazette Notice No. 7290, Gazette Notice No.6216, Gazette Notice No.6217, Gazette Notice No.7289, Goldenberg, Government to Government, Governor, Governor of the Central Bank of Kenya, Grand Regency Hotel, Grand Regency Hotel Inquiry Report, Handover of Hotel to LAICO, HEARING OF EVIDENCE, Hon Amos Kimunya. MP, Hon James Orengo, Hon. Amos Kimunya, http://blog.marsgroupkenya.org/?p=1747, http://www.twitter.com/marsgroupkenya, impunity, investigation, issues considered, James Orengo, Joseph Kinyua, kacc, Kamlesh Mansukhlal Pattni, Kamlesh Mansukhlal Pattni Kennedy Kaunda Abuga, Kathurima M'lnoti, Kennedy Abuga, Kennedy Kaunda Abuga, kenya, Kenya Anti Corruption Commission, Kenya Anti-Corruption Commission (KACC) Public Procurement Oversight Authority, Kenya Times, Kenyan media, Kenyan Media Council, Kenyan Public, Kiraitu Murungi, KTN, LAICO, LAICO Libya Africa Investment Company, Lands ministry, Libyan Arab African Investment Company Kenya Ltd, Libyan Arab African Investment Company Kenya Ltd (LAICO), Libyan/Kenyan corporation, Mars Group, Mars Group Kenya, media coverage, Minister, Minister for Finance, Minister for lands, Ministry of Lands Officials, misrepresentation, Mr Kennedy Kaunda Abuga Board Secretary of CBK, Mr Kennedy Kaunda Abuga The Grand Regency Hotel, Mwalimu Mati, Nation, Nation TV reporter, NTV, officials, parliament, Parliamentary peers, Permanent Secretary for Finance, President Kibaki, President Mwai Kibaki, Prime Minister, Print press, Private Valuation experts, Prof. Ndungu, Professor Njuguna Ndung’u, Professor Njuguna Ndung’u disposal of hotel, Professor Njuguna Ndung’u Governor of CBK, Public funds, public institutions, Public interest, Public Officer Ethics Act, public opinion, Public Procurement and Disposal Act, Public Procurement Authority, Public Procurement Oversight Authority, receiver managers, Receiver/Manager, Recommendations, Report, REPORT OF THE COMMISSION OF INQUIRY INTO THE SALE OF THE GRAND REGENCY HOTEL, Reporter, role played by other persons The Prime Minister, role played by persons named in the gazette notice, Rules of Procedure, scandalous transaction, secrecy, Summary of Findings, summary of findings and recommendations, The Attorney General Hon James Orengo MP Minister for Lands, The Central Bank of Kenya Act Appendices, The Cockar Commission Report, the Judicial Commission of Inquiry report, The origins of the Grand Regency Hotel Saga, the power of whispers and suggestion, The Public Procurement and Disposal Act, the Report of the Commission of Inquiry in to the Sale of the Grand Regency Hotel, The Three Consent Orders, theft of public funds, transaction, Transparent, Treasury, TV station, Under-Valued Price, Valuers and Valuation Reports, Valuers and Valuation Reports Receiver/Managers, Was Hotel Sale a Government to Government Transaction?, Was Hotel Sold at Under-Valued Price?, Was Transaction Transparent?, Wilfred Nyamu Mati, www.marsgroupkenya.org

Report of the Commission of Inquiry into the Sale of the Grand Regency Hotel (the Cockar Commission November 2008): Mars Group Kenya makes public this report in the Public Interest.

In view of the undisputed public interest in the circumstances surrounding the sale in April 2008 of the Grand Regency Hotel, and the subsequent Commission of Inquiry chaired by Hon. Justice (Rtd.) Abdul Majid Cockar which reported on November 24^th 2008, Mars Group Kenya is making available for public scrutiny a copy of the Report of the Commission of Inquiry in to the Sale of the Grand Regency Hotel.  The Cockar Report was submitted to President Mwai Kibaki on 24^th November 2008, but since then has not been made public despite it being a publicly funded and conducted inquiry into the disposal of an asset of the Kenyan people in very peculiar circumstances.

The Cockar Report makes damning findings regarding the conduct of high ranking public officers including the former Minister of Finance and the current Governor of the Central Bank of Kenya.  The Cockar Report “finds the entire transaction tainted with misrepresentation and deception to such an extent as to warrant specialised investigation by the Attorney General and other relevant institutions into the bona fides of the purchaser and other aspects of the transaction.”  13 Months have now passed since the President received this report and no action has been taken against the public officers involved nor have the Attorney General and other investigative bodies taken any action to ascertain the bona fides of the purchaser.  Hence our decision to make this copy of the Cockar Report public today.

By Gazette Notice No.6216 of 10^th July 2008 President Mwai Kibaki in exercise of powers conferred on him by Section 3 of the Commissions of Inquiry Act (Cap 102) in the public interest, appointed a Commission of Inquiry into the sale of the Grand Regency Hotel. The Commissioners appointed under the said Gazette Notice were Chief Justice (Rtd) Abdul Majid Cockar as the Chairman, Mr. Charles Arap-Kirui, and Mr. Kathurima M’lnoti. Under the same Gazette Notice Mr. Anthony Oteng’o Ombwayo and Mr. Wilfred Nyamu Mati were appointed the Secretary and the Counsel, respectively, of the Commission.

The mandate of the Commission was detailed in Gazette Notice No.6217.  The terms of reference were to: -

(a) Inquire into the circumstances leading to the sale of the Grand Regency Hotel;

(b) Inquire into the role played by the Minister for Finance, the Governor of the Central Bank of Kenya, the Company Secretary to the Central Bank of Kenya and any other person(s) involved in the sale of the Grand Regency Hotel;

(c) Perform any other task the Commission may deem necessary in fulfilling the foregoing terms of reference;

(d) Recommend such legal or administrative measures as the Commission may deem necessary) and to report its findings and recommendations within one (1) month.

There were 4 extensions of time given to the Cockar Commission to complete its work.  By Gazette Notice No.7289 dated 11th August, 2008 the President extended the period within which the Commission was required to report to on or before 10th September, 2008. On the same date by Gazette Notice No. 7290 the President appointed Mr. Francis Etole as additional Counsel to assist the Commission.

The period within which the Commission was required to submit its report was further extended on three other occasions, that is on 11th September, 2008, on 30^th September, 2008 and on 31^st October 2008 to expire on 14^th November, 2008.

The Commission was empowered to make its own Rules of Procedure under terms 2 (b) and (c) of its mandate, and proceeded to do this and had them published in Gazette Notice No.6543 of 21^st July, 2008.

There were 21 witnesses who appeared before the Cockar Commission including cabinet ministers and high ranking public officers.  The Commission had the power to summon any person or persons concerned to testify on oath and to produce any books, valuations or any other documents that the Commissioners may have required.  Twenty One (21) witnesses appeared before the Commission, including senior civil servants in the Lands ministry, Kenya Anti Corruption Commission (KACC), Attorney Generals Chambers, the Public Procurement Authority, Central Bank of Kenya, Private Valuation experts, receiver managers and the Minister for lands.

Kenya’s Ministry of Finance did not give evidence before the Cockar Commission despite its subject matter being intrinsically linked to the Goldenberg scandal which emanated from within Treasury during the early 1990s.  One of the persons named in Gazette Notice No.6217, former Minister for Finance, Hon. Amos Kimunya, chose at the last moment not to appear before the Commission to give evidence. When the Commission was informed on 20^th September, 2008, that he would not be appearing, it opted to summon the Permanent Secretary to the Treasury to give evidence on the Treasury’s role in the sale of the Grand Regency. Unfortunately the Commission was informed that the Permanent

Secretary, who was a member of Board of Directors of the Central Bank of Kenya, Mr. Joseph Kinyua was at that time out of the country and was

not expected to return before the 17^th October, 2008, or thereabouts. Treasury therefore did not appear before the Commission.

102 exhibits were considered in compiling the final report.  The proceedings run over 9,000 pages.

Findings of the Report:

The Hon Amos Kimunya was not directly involved in the sale of the Hotel.

However, he was briefed about what CBK was doing towards the disposal of the Hotel to LAICO. On 29^th April 2008. He did not give Parliament and the people of Kenya the true picture on the impending sale of the Hotel to LAICO. As the Minister responsible for the affairs of the CBK the report states that Hon Amos Kimunya must take responsibility for the questionable disposal of the Grand Regency Hotel.

Prof Njuguna Ndungu was not truthful to other public institutions, namely

the Kenya Anti-Corruption Commission, the Commissioner for Lands, the Public Procurement Oversight Authority and the Prime Minister about the sale of the Hotel. Even the valuers who were instructed to value the hotel were not told the purpose for which the valuation was being undertaken. At CBK Prof Njuguna Ndungu and Mr Abuga were solely responsible for the disposal of the Hotel. Prof Njuguna Ndungu’s conduct was contrary to

S 18 of the Public Officer Ethics Act which provides “A public officer shall not knowingly give false or misleading information to members of the public or to any other pubic officer”. The Report states that the Governor

Prof Njuguna Ndungu, must take responsibility for the disposal of the

Grand Regency hotel in a secretive and questionable manner.

Mr Kennedy Kaunda Abuga acted in concert with the Governor Prof.  Njuguna Ndungu to rush the sale of the Hotel while at the same time keeping it a close secret. Kennedy Abuga was only too willing to carry out all the wishes of the Governor Prof Njuguna Ndungu relating to the disposal of the Hotel without offering independent professional opinion. Kennedy Abuga’s conduct was also contrary to S 18 of the Public Officer Ethics Act.

The Grand Regency Hotel The registration of the transfer of the Hotel to LAICO appears to have been done within the provisions of the law. However, the Commission found the entire transaction tainted with misrepresentation and deception to such an extent as to warrant specialised investigation by the Attorney General and other relevant institutions into the bona fides of the purchaser and other aspects of the transaction.

Links:

REPORT OF THE COMMISSION OF INQUIRY INTO THE SALE OF THE GRAND REGENCY HOTEL

1. INTRODUCTION

1.1       Appointment of Commission

1.2       The origins of the Grand Regency Hotel Saga

2. HEARING OF EVIDENCE

2.1       Ministry of Lands Officials

2.2       Kenya Anti-Corruption Commission (KACC)

2.3       Public Procurement Oversight Authority

2.4       Valuers and Valuation Reports

2.5       Receiver/Managers

2.6.      Kamlesh Mansukhlal Pattni

2.7       Kennedy Kaunda Abuga

2.8       Professor Njuguna Ndung’u

3. DISPOSAL OF HOTEL

3.1       The Three Consent Orders

3.2       Differences Between KACC and Central Bank of Kenya (CBK)

3.3       Libyan Arab African Investment Company Kenya Ltd (LAICO)

3.4       Handover of Hotel to LAICO

4. ISSUES CONSIDERED

4.1       Was Hotel Sale a Government to Government Transaction?

4.2       Was Transaction Transparent?

4.3       Was Hotel Sold at Under-Valued Price?

5. ROLE PLAYED BY PERSONS NAMED IN THE GAZETTE NOTICE

5.1       Hon Amos Kimunya. MP

5.2       Professor Njuguna Ndung’u, Governor of CBK

5.3       Mr Kennedy Kaunda Abuga, Board Secretary of CBK

6. ROLE PLAYED BY OTHER PERSONS

6.1       The Prime Minister

6.2       The Attorney General

6.3       Hon James Orengo, MP, Minister for Lands

7. SUMMARY OF FINDINGS AND RECOMMENDATIONS

7.1 Summary of Findings

Hon Amos Kimunya

Professor Njuguna Ndung’u

Mr Kennedy Kaunda Abuga

The Grand Regency Hotel

7.2 Recommendations

The Public Procurement and Disposal Act

The Central Bank of Kenya Act

APPENDICES

Appendix A – Kenya Gazette Special Issue 11th July 2008

Appendix B – Kenya Gazette Special Issue 22nd July 2008

Appendix C – Kenya Gazette Special Issue 12th August 2008

Appendix D – Kenya Gazette Special Issue 12th September 2008

Appendix E – Kenya Gazette Special Issue 3rd October 2008

Appendix F – Kenya Gazette Special Isue 31st October 2008

Appendix G – List of Witnesses – Commission of Inquiry into the sale of the Grand Regency Hotel

Appendix H – List of Exhibits – Commission of Inquiry into the sale of the Grand Regency Hotel

Appendix I – Proposed Investment Projects by Libya Africa Investment Portfolio (LAP) in Kenya under Active Consideration – Memorandum dated June 5th 2007 – signed by Kiraitu Murungi and Bitange Ndemo for the GOK

Appendix J- Confidential Brief by the Central Bank of Kenya on the Grand Regency Hotel April 2008

Tags: Abuga, Antony Oteng'o Ombwayo, Appointment of Commission, Attorney General, Bitange Ndemo, Board Secretary of CBK, bosire commission, CBK, Central Bank of Kenya, Central Bank of Kenya Act, Chamber, Charles Arap-Kirui, Chief Justice (Rtd) Abdul Majid Cockar, Commission of Inquiry, Commissioner for Lands, Commissions of Inquiry Act, Company Secretary, Consent Orders, Corruption, Dr. Bitange Ndemo, exhibit, Francis Etole, Gazette Notice No. 7290, Gazette Notice No.6216, Gazette Notice No.6217, Gazette Notice No.7289, Goldenberg, Government to Government, Governor of the Central Bank of Kenya, Grand Regency Hotel, HEARING OF EVIDENCE, Hon James Orengo, Hon. Amos Kimunya, http://twitter.com/Marsgroupkenya, impunity, Joseph Kinyua, kacc, Kamlesh Mansukhlal Pattni, Kathurima M'lnoti, Kennedy Kaunda Abuga, kenya, Kenya Anti Corruption Commission, Kenyan Public, Kiraitu Murungi, LAICO, Lands ministry, Libyan Arab African Investment Company Kenya Ltd, Mars Group, Mars Group Kenya, Minister for Finance, Minister for lands, Ministry of Lands Officials, parliament, President Mwai Kibaki, Prime Minister, Private Valuation experts, Prof Njuguna Ndungu, Professor Njuguna Ndung'u DISPOSAL OF HOTEL, Public funds, public institutions, Public interest, Public Officer Ethics Act, Public Procurement and Disposal Act, Public Procurement Authority, Public Procurement Oversight Authority, receiver managers, Receiver/Manager, Report, Rules of Procedure, The origins of the Grand Regency Hotel Saga, the Report of the Commission of Inquiry in to the Sale of the Grand Regency Hotel, theft of public funds, transaction, Transparent, Treasury, Under-Valued Price, Valuers and Valuation Reports, Wilfred Nyamu Mati

KENYA AT RISK OF PAYING KSHS 3.284 BILLION TEN TIMES THE VALUE OF AN 8 YEAR OLD ANGLO LEASING SECURITY PROJECT NEXUS IF CABINET APPROVES PAYMENT

1. On 10 September 2009, the Kenya Cabinet gave directives on how to resolve 2 of the 18 Anglo Leasing type contracts that were the subject of international commercial arbitration whose dispute posed the greatest risk to the Government.  The dispute on the two contracts namely, Project Nexus project and Navy Ship Project (described elsewhere on this site) were to be resolved through negotiated settlement under expert guidance.  The parties to the arbitration (i.e. Government of Kenya, Nedermar Technology BV, Euromarine Industries Inc, Empressa De Financas International Limited and Navigia Capital Corporation Inc) have apparently requested the International Tribunal for a stay in the arbitration proceedings pending conclusion of the settlement agreement.  A draft Cabinet Memo shows that the Cabinet will be asked to approve a negotiated settlement with Nedermar Technology BV on Project Nexus, even though the deal was condemned by the Controller and Auditor General as long ago as 2006.

2. Project Nexus was awarded to Nedermar Technology BV of Amsterdam on 19^th November 2002 to build an integrated command and control centre for the Kenyan Department of Defence.  The project was handed over to the Government of Kenya in the second half of 2005 just as the Anglo Leasing scandal broke out in the public domain.  Demands for payment of the full contract price by Nedermar went unmet by the Government which froze repayments pending investigation of the contracts.  The Government’s investigations hit a dead end in Petition No. 390 of 2006 when the High Court injuncted the Kenya Anti Corruption Commission from pursuing criminal investigations against Nedermar and associates on the basis of its contract with the Government of Kenya.

3. The question of whether Kenya is being billed 10 times the value of the actual works is central to this contract’s resolution and the debt obligation imposed on Kenyans by this contract.  Both sides have different calculations of the value of work done; but in sum Kenya’s legal position has been that it has been over billed by 10 times.  Evidence of this is provided by the Bills of Costs filed in Court by the KACC which show payments by Nedermar Technology to sub-contracted companies and professionals who worked on Project Nexus.  An affidavit sworn on 15^th July 2006 by Julie Adell Owino, a Senior Forensic Investigator with the Kenya Anti Corruption Commission, in the case of Nedermar Technology BV Limited v KACC and Attorney General (HC Petition No 390 of 2006) states “there is evidence that the Consultants were paid nominal amounts compared to the project cost which was grossly inflated at about Kenya Shillings 4 billion in that the contractor was paid Kshs 266 million for all construction works and the quantity surveyor was paid a paltry 1.6 million as per the payment acknowledgements obtained form the consultants true copies whereof are attached hereto and marked “JAO 11” warranting further investigations and verification of the true cost of the project.”

4. An affidavit sworn on 10^th August 2006 by Zachary Mwaura, Permanent Secretary in the Department of Defence, in the case of Nedermar Technology BV Limited v KACC and Attorney General (HC Petition No 390 of 2006) states at paragraph 13 that “the final statement of accounts submitted by the consultants of the project and attached to the affidavit of JULIE ADELL OWINO shows a figure of Kshs. 266,085,371 for the works.  The government has paid the petitioner Euros 12,464,662 out of the original Euros 36,903,750.”

5. A witness statement by Nedermar Technology’s Project Nexus Site Manager and Quantity Surveyor, Anurath Gunawardene, states to the Arbitration Tribunal in November 2006 that Nedermar was unaware that it was the subject of corruption investigations, and that apart from the money stated in the KACC Bill of Costs (in Ms. Adell and Mr. Mwaura’s affidavits) a further sum of up to 2 million Euros (about Ksh 216 million) was also spent on ‘client supply’ items.  Gunawardene narrates the history of the project and describes how it ended including claiming that Nedermar’s project documentation was left behind on site.

Between these two valuations lies the truth.  But what is clear is that Kenya’s evidence supports a payment (which may already have been made) of hundreds of millions and not multi-billions as is claimed.  Cabinet should stand firm.  Is this really a case that Kenya should be desperately settling or should Nedermar be put to strict proof of its claims?

MILITARY COMMAND CENTRE CONSTRUCTION SUPPLY AND LOAN CONTRACT NEDERMAR TECHNOLOGY BV

Title: Contract for construction of an Integrated Command and Control Centre for the Kenya Department of Defence and associated works

Purpose: To construct an Integrated Command and Control Centre for the Kenya Department of Defence

Contract Date: 19^th November 2002

Parties:

Nedermar Technology BV

Keizergracht 62-64

1015 CS Amsterdam

The Netherlands

Ministry of Transport and Communications

Government of the Republic of Kenya

PO Box 30007 – 00100

Nairobi, Kenya

Signatories:

1. Permanent Secretary Office of the Vice President and Ministry of Transport and Communications – Sammy Kyungu
2. Financial Secretary Ministry of Finance – S. K. Bundotich
3. Duly Authorised Representative Nedermar Technology BV – Anurath Gunawardene

Contract Price and Currency: 36,903,750 Euros

Place and Time of Delivery: Karen/ Kenya Coast/ Moyale – July/ August / September 2005

Mode of Payment:

- Down-payment of 4,200,000 Euros on or before 15^th January 2003

- Management Fee of 1,107,112.50 Euros due on 19^th November 2002

- Credit Insurance of 1,845,187.50 Euros due on 19^th November 2002

- Balance of 32,703,750 Euros to be paid in 17 quarterly instalments (deferred payments) each amounting to 1,923,750 Euros starting 15^th April 2003, and thereafter on the 15^th day of July, October, January and April of each year, and the last to be made on 15^th April 2007.

NEDERMAR TECHNOLOGY BVI ‘LOAN’ TO GOK 19th  NOVEMBER 2002
Date Due	Payment Amount	Cumulative Payments	Interest	Principal outstanding
			LIBOR plus 1.475 percent
15-Jan-03	€ 4,200,000.00
15-Apr-03	€ 1,923,750.00
15-Jul-03	€ 1,923,750.00
15-Oct-03	€ 1,923,750.00
15-Jan-04	€ 1,923,750.00
15-Apr-04	€ 1,923,750.00
15-Jul-04	€ 1,923,750.00
15-Oct-04	€ 1,923,750.00
15-Jan-05	€ 1,923,750.00
15-Apr-05	€ 1,923,750.00
15-Jul-05	€ 1,923,750.00
15-Oct-05	€ 1,923,750.00
15-Jan-06	€ 1,923,750.00
15-Apr-06	€ 1,923,750.00
15-Jul-06	€ 1,923,750.00
15-Oct-06	€ 1,923,750.00
15-Jan-07	€ 1,923,750.00
15-Apr-07	€ 1,923,750.00
SUB-TOTAL	€ 36,903,750.00
19-Nov-02	€ 1,107,112.50	Management Fees
19-Nov-02	€ 1,845,187.50	Credit Insurance
TOTAL	€ 39,856,050.00

Applicable Law and Arbitration: English contract law and the provisions of the Rules of the United Nations Commission on International Trade Law (UNCITRAL) or with the consent of Nedermar Technology to the Arbitration Act No. 11 of 1995

Tags: 18 Anglo Leasing type contracts, Amos Wako, Anglo leasing, Anurath Gunawardene, Attorney General, Cabinet, Cabinet Memo, Controller and Auditor General, Corruption, Empressa De Financas International Limited, Euromarine Industries Inc, Integrated Command and Control Centre, International Tribunal, Julie Adell-Owino, kenya, Kenya Anti Corruption Commission, Kenya government, marsgroup Kenya, Military Command Centre, Ministry of Transport and Communications, Navigia Capital Corporation Inc, Navy Ship Project, Nedermar Technology BV, Permanent Secretary in the Department of Defence, Permanent Secretary Ministry of Finance – Joseph Magari, Permanent Secretary Office of the Vice President and Ministry of Transport and Communications, Project Nexus, Sammy Kyungu, THE BOGUS CONTRACTS, United Nations Commission on International Trade Law, Zachary Mwaura

Cabinet to commit Kenyans to pay for Anglo Leasing Navy Ship Contracts for loans that were never received and for the supply of a navy ship that has never been delivered to Kenya.

Mars Group Kenya invites Kenyans to carefully scrutinize this report. It reveals documents that have never been in the public domain about the Navy ship contract and the manner in which it has been dealt with by the Executive, Legislature and Judiciary. Our analysis of the Navy Ship deal is that there is a determined effort to use cabinet, parliament and its committees to clear the 18 Anglo Leasing type contracts. Kenyans should beware that Cabinet is about to approve payments to two businessmen for the 18 Anglo leasing corrupt fictitious debts. What is more clear to Kenyans is that nothing will stop this determined effort to steal from them. What Kenyans need to now consider, is a new political dispensation that will undo all the damage being done to this country. Kenya needs a new leadership that will jail all corrupt individuals and recover all proceeds of grand corruption. This will require a total replacement and overhaul of the current corrupt system.

The Navy Ship (2003): Kenyans do not know that there are actually four contracts involved here. The Government of Kenya, in July 2003, entered into an agreement with Euromarine Industries to build and deliver an oceanographic vessel to the Kenya Navy; simultaneously it entered into three financing agreements with two Spanish financiers (Navigia Capital International Limited and Empressa de Financas) and also Euromarine Industries. At present the debt is held by another party namely, Credit Lyonnaise Bank who holds the debt and instruments given to the first three companies that signed contracts with GOK in July 2003. The Government of Kenya has been paying as hereunder:

Outstanding Amounts for the Navy Ship according to the External Public Debt Register as of:
30.06.2003: Ksh. 0
30.06.2004: Ksh. 4,057,624,812
30.06.2005: Ksh. 3,889,071,954
30.06.2006: Ksh. 3,968,876,331

Outstanding Amounts for the Navy Ship according to the cabinet memo of 20th November 2009 is Kshs 4.628 billion.

Not a single shilling was received by Kenya on the credit / loans  and according to the Controller and Auditor General “ In Practically all the supply/credit agreements, the Government was in effect funding the financiers/suppliers to finance the procurement of goods and services due under the contracts while also paying interest and other financing costs to same financiers/ suppliers.” .

Kenyans did not borrow, Kenyans did not receive money , Kenyans do not owe. Why should we pay?

Further, Kenya is yet to receive the Navy Ship that has been photographed rusting in Spain. The ship is reported to have no guns or warranties. In effect the Jasiri Mombasa is just a piece of steel. Kenyans now owe Ksh 4.628 billion for this ship and Cabinet is about to approve payment of this bogus debt. Who will stop the Government of Kenya from committing Kenyans to paying corrupt debt?

THE BOGUS CONTRACTS

CONTRACT Number 1

NAVY SHIP SUPPLY CONTRACT EUROMARINE INDUSTRIES INC

Title: Contract for supply of Oceanographic Survey Vessel

Purpose: To acquire a Navy Ship for the Kenya Navy

Contract Date: 15^th July 2003

Parties:

Euromarine Industries Inc

Gran Via Carles III,

84-3 Edifici Trade

08028 Barcelona, Spain

Office of the President

Government of the Republic of Kenya

PO Box 30510

Nairobi, Kenya

Signatories:

1. Permanent Secretary Office of the President – Sammy Kyungu
2. Permanent Secretary Ministry of Finance – Joseph Magari
3. Duly Authorised Representative Euromarine Industries Inc – J.K. Mario

Purchase Price of the Vessel and Currency: 51,997,000 Euros

Place and Time of Delivery: Spain – “the Vessel shall be delivered by the Seller to the Buyer not later than Eighteen (18) months after the coming into force of this Contract - (i.e. on 15^th July 2003) - (time not being of the essence)” – (i.e. on 15^th July 2003)

Mode of Payment:

- Downpayment of 10,399,400 Euros and Interest of 503,056 Euros (4.8%) financed by Supplemental Credit Agreement with Euromarine Industries Inc also dated 15^th July 2003 for a total of 10,902,456 Euros

- Balance to be paid according to terms of Supplemental Credit Agreements with Empressa De Financas International Limited and Navigia Capital Corporation Inc both also dated 15^th July 2003

Applicable Law and Arbitration: English law and the provisions of the Rules of the International Chamber of Commerce in London, UK

CONTRACT Number 2

NAVY SHIP LOAN CONTRACT WITH EUROMARINE INDUSTRIES INC

Title: Credit Agreement between Euromarine Industries Inc and the Government of the Republic of Kenya

Purpose: To finance downpayment and interest for the Navy Ship according to Government of Kenya request

Contract Date: 15^th July 2003

Parties:

Euromarine Industries Inc

Gran Via Carles III,

84-3 Edifici Trade

08028 Barcelona, Spain

Ministry of Finance

Government of the Republic of Kenya

PO Box 30007

Nairobi, Kenya

Signatories:

1. Permanent Secretary Ministry of Finance – Joseph Mbui Magari
2. Managing Director Euromarine Industries Inc – J. K. Mario

Amount and Currency of Loan: 10,902,456 Euros [i.e. Principal of 10,399,400 Euros plus Interest of 2,839,063 Euros (4.8%)]

Period of Loan: 24 months from effective date of loan contract (i.e. 15^th July 2003)

Mode of Payment:

Date Due	Payment Amount €	Cumulative Payments €	Interest €	Cumulative Interest €	Principal €	Cumulative Principal €	Principal outstanding €
							10,399,400.00
31-Jul-03	1,211,384.00	1,211,384.00	0.00	0.00	1,211,384.00	1,211,384.00	9,188,016.00
31-Oct-03	1,211,384.00	2,422,768.00	110,256.00	110,256.00	1,101,128.00	2,312,512.00	8,086,888.00
31-Jan-04	1,211,384.00	3,634,152.00	97,043.00	207,299.00	1,114,341.00	3,426,853.00	6,972,547.00
30-Apr-04	1,211,384.00	4,845,536.00	83,670.00	290,969.00	1,127,714.00	4,554,567.00	5,844,833.00
31-Jul-04	1,211,384.00	6,056,920.00	70,138.00	361,107.00	1,141,246.00	5,695,813.00	4,703,587.00
31-Oct-04	1,211,384.00	7,268,304.00	56,443.00	417,550.00	1,154,941.00	6,850,754.00	3,548,646.00
31-Jan-05	1,211,384.00	8,479,688.00	42,584.00	460,134.00	1,168,800.00	8,019,554.00	2,379,846.00
30-Apr-05	1,211,384.00	9,691,072.00	28,558.00	488,692.00	1,182,826.00	9,202,380.00	1,197,020.00
31 -Jul -05	1,211,384.00	10,902,456.00	14,364.00	503,056.00	1,197,020.00	10,399,400.00	0.00

Applicable Law and Arbitration: English law and the provisions of the Rules of the International Chamber of Commerce in London, UK

CONTRACT Number 3

NAVY SHIP LOAN CONTRACT WITH NAVIGIA CAPITAL CORPORATION INC.

Title: Credit Agreement between Navigia Capital Corporation Inc. and the Government of the Republic of Kenya

Purpose: To finance balance of supply cost of a Navy Ship according to Government of Kenya request – 7 years partial finance

Contract Date: 15^th July 2003

Parties:

Navigia Capital Corporation Inc.,

c/o Quastels Avery Midgen

74 Wimpole Street

London W1G 9RR, United Kingdom

Ministry of Finance

Government of the Republic of Kenya

PO Box 30007

Nairobi, Kenya

Signatories:

1. Permanent Secretary Ministry of Finance – Joseph Mbui Magari
2. Managing Director Navigia Capital Corporation Inc. -

Amount and Currency of Loan: 31,611,495 Euros [i.e. Principal of 26,597,600 Euros plus Interest of 5,013,895 Euros (4.8%)]

Period of Loan: 7 years from effective date of loan contract (i.e. 15^th July 2003 to 31^st October 2010)

Mode of Payment:

Date Due	Payment Amount €	Cumulative Payments €	Interest €	Cumulative Interest €	Principal €	Cumulative Principal €	Principal outstanding €
							€ 26,597,600.00
31-Oct-03	€ 2,107,433.00	€ 2,107,433.00	€ 319,171.00	€ 319,171.00	€ 1,788,262.00	€ 1,788,262.00	€ 24,809,338.00
30-Apr-04	€ 2,107,433.00	€ 4,214,866.00	€ 595,424.00	€ 914,595.00	€ 1,512,009.00	€ 3,300,271.00	€ 23,297,329.00
31-Oct-04	€ 2,107,433.00	€ 6,322,299.00	€ 559,135.00	€ 1,473,730.00	€ 1,548,298.00	€ 4,848,569.00	€ 21,749,031.00
30-Apr-05	€ 2,107,433.00	€ 8,429,732.00	€ 521,976.00	€ 1,995,706.00	€ 1,585,457.00	€ 6,434,026.00	€ 20,163,574.00
31-Oct-05	€ 2,107,433.00	€ 10,537,165.00	€ 483,925.00	€ 2,479,631.00	€ 1,623,508.00	€ 8,057,534.00	€ 18,540,066.00
30-Apr-06	€ 2,107,433.00	€ 12,644,598.00	€ 444,961.00	€ 2,924,592.00	€ 1,662,472.00	€ 9,720,006.00	€ 16,877,594.00
31-Oct-06	€ 2,107,433.00	€ 14,752,031.00	€ 405,062.00	€ 3,329,654.00	€ 1,702,371.00	€ 11,422,377.00	€ 15,175,223.00
30-Apr-07	€ 2,107,433.00	€ 16,859,464.00	€ 364,205.00	€ 3,693,859.00	€ 1,743,228.00	€ 13,165,605.00	€ 13,431,995.00
31-Oct-07	€ 2,107,433.00	€ 18,966,897.00	€ 322,367.00	€ 4,016,226.00	€ 1,785,066.00	€ 14,950,671.00	€ 11,646,929.00
30-Apr-08	€ 2,107,433.00	€ 21,074,330.00	€ 279,526.00	€ 4,295,752.00	€ 1,827,907.00	€ 16,778,578.00	€ 9,819,022.00
31-Oct-08	€ 2,107,433.00	€ 23,181,763.00	€ 235,656.00	€ 4,531,408.00	€ 1,871,777.00	€ 18,650,355.00	€ 7,947,245.00
30-Apr-09	€ 2,107,433.00	€ 25,289,196.00	€ 190,733.00	€ 4,722,141.00	€ 1,916,700.00	€ 20,567,055.00	€ 6,030,545.00
31-Oct-09	€ 2,107,433.00	€ 27,396,629.00	€ 144,733.00	€ 4,866,874.00	€ 1,962,700.00	€ 22,529,755.00	€ 4,067,845.00
30-Apr-10	€ 2,107,433.00	€ 29,504,062.00	€ 97,628.00	€ 4,964,502.00	€ 2,009,805.00	€ 24,539,560.00	€ 2,058,040.00
31-Oct-10	€ 2,107,433.00	€ 31,611,495.00	€ 49,393.00	€ 5,013,895.00	€ 2,058,040.00	€ 26,597,600.00	€ 0.00

Applicable Law and Arbitration: English law and by tribunal pursuant to the UNCITRAL Arbitration Rules

CONTRACT Number 4

NAVY SHIP LOAN CONTRACT WITH EMPRESA DE FINANCAS INTERNATIONAL LIMITED

Title: Credit Agreement between Empresa De Financas International Limited and the Government of the Republic of Kenya

Purpose: To finance balance of supply cost of a Navy Ship according to Government of Kenya request – 7 years partial finance

Contract Date: 15^th July 2003

Parties:

Empresa De Financas International Limited,

c/o Quastels Avery Midgen

74 Wimpole Street

London W1G 9RR, United Kingdom

Ministry of Finance

Government of the Republic of Kenya

PO Box 30007

Nairobi, Kenya

Signatories:

1. Permanent Secretary Ministry of Finance – Joseph Mbui Magari
2. Managing Director Empresa De Financas International Limited – Recardo Harris

Amount and Currency of Loan: 17,757,180 Euros [i.e. Principal of 15,000,000 Euros plus Interest of 2,757,180 Euros (4.8%)]

Period of Loan: 7 years from effective date of loan contract (i.e. 15^th July 2003 to 30^th September 2010)

Mode of Payment:

Date Due	Payment Amount €	Cumulative Payments €	Interest €	Cumulative Interest €	Principal €	Cumulative Principal €	Principal outstanding €
							€ 15,000,000.00
30-Sep-03	€ 1,183,812.00	€ 1,183,812.00	€ 120,000.00	€ 120,000.00	€ 1,063,812.00	€ 1,063,812.00	€ 13,936,188.00
31-Mar-04	€ 1,183,812.00	€ 2,367,624.00	€ 334,469.00	€ 454,469.00	€ 849,343.00	€ 1,913,155.00	€ 13,086,845.00
30-Sep-04	€ 1,183,812.00	€ 3,551,436.00	€ 314,084.00	€ 768,553.00	€ 869,728.00	€ 2,782,883.00	€ 12,217,117.00
31-Mar-05	€ 1,183,812.00	€ 4,735,248.00	€ 293,211.00	€ 1,061,764.00	€ 890,601.00	€ 3,673,484.00	€ 11,326,516.00
30-Sep-05	€ 1,183,812.00	€ 5,919,060.00	€ 271,836.00	€ 1,333,600.00	€ 911,976.00	€ 4,585,460.00	€ 10,414,540.00
31-Mar-06	€ 1,183,812.00	€ 7,102,872.00	€ 249,949.00	€ 1,583,549.00	€ 933,863.00	€ 5,519,323.00	€ 9,480,677.00
30-Sep-06	€ 1,183,812.00	€ 8,286,684.00	€ 227,536.00	€ 1,811,085.00	€ 956,276.00	€ 6,475,599.00	€ 8,524,401.00
31-Mar-07	€ 1,183,812.00	€ 9,470,496.00	€ 204,586.00	€ 2,015,671.00	€ 979,226.00	€ 7,454,825.00	€ 7,545,175.00
30-Sep-07	€ 1,183,812.00	€ 10,654,308.00	€ 181,084.00	€ 2,196,755.00	€ 1,002,728.00	€ 8,457,553.00	€ 6,542,447.00
31-Mar-08	€ 1,183,812.00	€ 11,838,120.00	€ 157,019.00	€ 2,353,774.00	€ 1,026,793.00	€ 9,484,346.00	€ 5,515,654.00
30-Sep-08	€ 1,183,812.00	€ 13,021,932.00	€ 132,377.00	€ 2,486,151.00	€ 1,051,435.00	€ 10,535,781.00	€ 4,464,219.00
31-Mar-09	€ 1,183,812.00	€ 14,205,744.00	€ 107,141.00	€ 2,593,292.00	€ 1,076,671.00	€ 11,612,452.00	€ 3,387,548.00
30-Sep-09	€ 1,183,812.00	€ 15,389,556.00	€ 81,301.00	€ 2,674,593.00	€ 1,102,511.00	€ 12,714,963.00	€ 2,285,037.00
31-Mar-10	€ 1,183,812.00	€ 16,573,368.00	€ 54,841.00	€ 2,729,434.00	€ 1,128,971.00	€ 13,843,934.00	€ 1,156,066.00
30-Sep-10	€ 1,183,812.00	€ 17,757,180.00	€ 27,746.00	€ 2,757,180.00	€ 1,156,066.00	€ 15,000,000.00	€ 0.00

Applicable Law and Arbitration: English law and by tribunal pursuant to the UNCITRAL Arbitration Rules

THE ROLE OF PARLIAMENT IN THE NAVY SHIP DEAL

The Parliamentary Committee for Defence matters led by G.G. Kariuki, cleared the way for repayment of the debt owed to Credit Lyonnaise Bank.

Background Facts on the Navy Ship

On July 15th 2003, the Government of Kenya (represented by the Treasury and Ministry of Defence) entered into a contract with Euromarine Industries by which Euromarine would deliver an oceanographic survey vessel to the Kenya Navy for close to Ksh 4.6 billion. The contract features as one of the 18 contentious security related contracts colloquially described as Anglo Leasing type. On the same day, two financing contracts were also entered into with two Spanish firms. At some point, Euromarine sub-contracted the ship’s construction to another Spanish firm known as Astilleros Gondan.

Payments on this contract were stopped in June 2005, following the earlier intervention of John Githongo, former Permanent Secretary for Governance and Ethics in the Office of the Kenya President. Euromarine was then reported to have instituted legal action against the Government of Kenya for the withheld payments on the navy ship – derogatorily called “Kenya’s Spanish Armada” by a former British High Commissioner to Kenya, Edward Clay. The withheld payments  generated political pressure on the Treasury including, according to John Githongo’s Report to President Kibaki of November 2005, direct requests to him by the former Ministers for Justice and Internal Security (Kiraitu Murungi and Chris Murungaru). The ship deal remained cloaked in mystery and was the subject of an extraordinary press statement by Chris Murungaru in which he named the President as the substantive Minister for Defence and categorically stated that no such procurement could have been undertaken without President Kibaki’s authorization, which was given according to Dr. Murungaru in June 2003. The navy ship contract is also listed as one of the 18 security related Anglo Leasing type contracts by the Controller and Auditor General (April 2006), the Parliamentary Accounts Committee (march 2006) and the Ministry of Justice and Constitutional Affairs (September 2006).

KACC is still, of course, conducting the investigations it started in 2004, though its former Director Justice Ringera told the committee that as of September 2006 the “international investigation was not complete.” Since January 2007, Treasury has received a report on this contract by international audit firm PriceWaterhouseCoopers. Nevertheless, the controversy surrounding this contract prompted the Parliamentary Departmental Committee for Defence and Foreign Relations to intervene and undertake its own limited inquiry into the naval ship contract. The inquiry included a 4-day fact finding visit (September 25 – 28 2006) to dockyards in Spain and meetings with Euromarine Industries, the Head of the Kenyan public service, senior officials from Treasury, Kenya’s Embassy in France (which covers Spain) and the Kenya Anti Corruption Commission. The report of the inquiry tabled by the Chairman of the departmental committee, G.G. Kariuki, and adopted by Parliament on May 2nd 2007, claimed to have confirmed the existence of the ship docked at Ribadeo, Spain and apparently christened “Jasiri Mombasa”.

The report, adopted by Parliament on May 2nd 2007, runs to only 13 pages including an executive summary, and has one annex containing 6 photographs of 4 members of the departmental committee on what we are told is the ship Kenya is meant to pay for, and take delivery of.

Mr. Kariuki and his team made three broad recommendations: first of all it recommended that the Government submit to the International Arbitration Court; secondly it recommended the appointment by the Government of Kenya of an independent survey of the value of the project; and thirdly, it recommended that the Government decide whether or not it wishes to terminate the contract and take the required action.

We would like to point out but a few of the gaping holes in this report. A reading of the departmental committee’s report reveals several curious facts and consequent questions that require answers from G.G. Kariuki and his parliamentary colleagues:

1. The departmental committee did not meet with the Attorney General at all. It did not scrutinize the legal and financial contracts which purportedly legitimize the demands for payment being made by Euromarine for the procurement of the ship they believe they visited. Why?

2. Although the committee says it “took upon itself the responsibility to establish the truth regarding allegations of irregular procurement of a naval ship for the Kenya Navy” it does not assess the procurement process at all save to note that there was a contract dated July 15th 2003 between the Government of Kenya and Euromarine Industries, a Spanish registered firm, and a sub-contract between Euromarine and Astilleros Gondan, a Spanish ship builder based in Ribadeo, Spain, the venue of the committee’s visit. Wouldn’t the appropriate place to start its inquiry be a review of whether or not the procurement law was followed as regards sub-contracting? More fundamentally, was the committee not curious as to why the ship was being bought through an intermediary, broker or middleman? What value did Euromarine brings to this deal?

3. The committee held discussions with officials representing Euromarine but not with the ship builder, Astilleros Gondan. In fact the website of Astilleros Gondan does not list Jasiri Mombasa or indeed any Kenyan vessels in its list of ships built between 1969 and 2006. How does the committee explain this curious omission?

4. Lt. Col P. Kituku, the Kenyan naval officer who was said to be supervising the ship’s construction told the committee that “he had been appointed to oversee the ship’s construction in 2002 by the Defence Council and arrived at the Astilleros Gondan’s shipyard in Spain in January 2002.” While moving the motion of adoption of the report, the chairman G.G. Kariuki, confirms these dates when he said “The navy officer arrived in Spain in January 2002.” This is very strange because the contract for the ship was only signed on July 15th 2003, and if we are to believe Dr. Murungaru, the former Minister of State, presidential authorization was only given in June 2003. What was he doing in Spain even before the tender that was said to have been floated on September 11th 2002? Is it not noteworthy to the committee that the KACC took statements from the then Chief of General Staff, General Kibwana and the top naval brass as far back as June 2005?

5. The same officer also told the committee that “through Euromarine, Astilleros Gondan had been contracted by GOK to build other marine vessels in the past. For instance he mentioned the two logistic ships delivered in 1993; five inshore patrol boats delivered in 1994; and two offshore patrol boats delivered in 1996, all of which are still in service to date.” Is this really true? As noted above, Astilleros Gondan does not claim to have built any vessels for Kenya and in fact was only registered as a defence exporter by the Spanish government in September 2005 (more than two years after the contentious contract was signed).

6. Though the committee “was informed by Euromarine and the Kenyan supervising naval officer Lt. Col P. Kituku, that the ship is practically over 90 per cent complete” and that funds permitting it can be completed in another two months, the ship has no weaponry at all and that Euromarine was not responsible for arming the vessel at all. The G.G. Kariuki committee was told by a Mr. Salvador Surroca Vineta, that “the GOK would have to sign a new contract with arms manufacturers to fit its desired weaponry system.” Nevertheless the committee claims that the ship is already equipped with a satellite communications system while dryly noting that “only parts of the oceanographic vessel’s survey equipment have been installed to date.” Recall that the primary function of this ship is to conduct oceanographic surveys. The clincher to us was the offer by Euromarine that “if GOK expressed interest in the ship, Euromarine would negotiate the terms with suppliers for a new arrangement” because as they helpfully pointed out the warranties for various pieces of equipment already installed on Jasiri Mombasa “have since expired.” Mr. Sorroca then “confided that his firm had received queries on the ship from at least three governments including Indonesia, Thailand and Philippines.” The committee followed this by expressing “satisfaction with the physical structure and state of the ship.” How can the committee have been satisfied with such a scenario, in which Kenya is being asked to pay Ksh 4.6 billion for a ship for our navy which for all intents and purposes is merely a steel hulk with out-of-warranty-equipment and no guns?

7. Much was made by Euromarine of its desire to forego already commenced arbitration proceedings at the “Permanent International Court of Arbitration in the Hague”, and to resolve the matter amicably. Incredibly, the committee did not broach the issue of the allegations of unlawful and corrupt procurement which have been raised by former Permanent Secretary for Governance and Ethics, John Githongo and the serious procedural queries raised by the Controller and Auditor General in his special audit report of April 2006. Why?

8. The committee did not seem to use any prior inquiries into this contract in conducting its inquiry. It makes no mention of the KACC investigation of Euromarine and its co-financiers. It makes no mention of the reports by the Public Accounts Committee, the Controller and Auditor General or the Githongo report. did not speak to the Controller and Auditor General or John Githongo. It is written without context and worryingly relies as its primary source of information, on the officials of the contractor whom they were meant to be inquiring into. Why was the committee so determined to ignore the concerns raised by prior official reports, and to urge the Government to renegotiate or submit to international arbitration?

9. Further no attempt was made by the committee, or none is mentioned, to make contact with the alleged financiers of this Ksh 4.6 billion ship (Navigia Capital and Impressas de Financas). There is no mention of any inquiries made of Credit Lyonais Bank which is listed as the creditor to the Government of Kenya in the External Public Debt Register. Why was the committee ignoring the financing and debt aspect of the ship they visited?

10. Finally, the committee is under the misapprehension, possibly because of a confusion arising from whom it talked to, coupled with its not calling for the contract itself, that the naval ship contract “was signed before the current Government came to power.” This is what GG Kariuki told Parliament on April 26th 2007 as he asked the House to adopt his report. It is untrue. The contract was signed on July 15th 2003. Why is Mr. Kariuki under such a false impression? Why does he say to Parliament that the construction started in March 2003, more than 3 months before the contract was signed? What exactly is going on?

11. As he moved the motion for adoption of the report, GG Kariuki also told Parliament that “the committee was assured that this ship was inspected according to the international standards by Kenya and Lloyd’s specifications and other international marine standards.” Why then does the report reflect a different position on page 10? The committee was clearly told that “acceptance trials with inspectors from Lloyd’s Registers and Kenya Navy personnel would be conducted once outstanding issues are settled.”

12. The report attracted media attention, prior to its adoption by Parliament, when it was produced in court on March 20th 2007 by lawyers Fred Ngatia and Kioko Kilukumi before Justice Emukule. The duo argued, for their respective clients, Euromarine Industries, Pritpal Thethy and Andrew Burnard, that the Kenya Anti Corruption Commission had no basis for continuing to investigate them over the Ksh 4.6 billion navy ship contract as the same had been cleared by Parliament. How did the report come into the possession of these lawyers?

In Parliament on May 2nd 2007, GG Kariuki berated the navy for not treating Euromarine better, for not taking possession of the ship, and of course for not paying up. He feels that Euromarine “has been very reasonable to Kenya” and further “the Government should immediately enter into an agreement with the consulting company and settle what they owe.” Our view is diametrically opposed to this. Until Kenyans are sure that the law was not broken, and that this ship is worth what we have collectively been billed for it, the Government must not pay another shilling to Euromarine or anyone else in relation to these 3 contracts. What we expect of legislators, including GG Kariuki, is to hear their unequivocal demands of government for the speedy conclusion of the real investigations and not using his committee’s flimsy report to clear any party and prejudice the Kenyan position. Kenyans need to be clearly told what their financial obligation is and when it will be ended. The external public debt register puts our current obligation at Ksh 4.6 billion payable with 4.8% interest between July 2003 and July 2010.

The GG Kariuki report, in short, provided no basis whatsoever for clearing any of the public officers and commercial entities involved in this deal. It is of little use in assessing whether Kenya will get, if it takes delivery of the ship, value for money. The committee itself admits its lack of capacity to make such determinations as it recommends at the end of the report that “GOK should consider having an independent surveyor to undertake the naval ship’s inspection and evaluation of works and services done.” The committee considers that such an evaluation would provide the basis for responding to the case allegedly filed by Euromarine at The Hague and negotiations with those who hold us in their debt to the tune of Ksh 4.6 billion.

For more related documents

Tags: 18 Anglo Leasing type contracts, 84-3 Edifici Trade, Andrew Burnard, Applicable Law and Arbitration, Astilleros Gondan, Attorney GeneralCol P. Kituku, bogus debt, Cabinet, Contract for supply of Oceanographic Survey Vessel, Controller and Auditor General, corrupt fictitious debts, Corruption, Credit Lyonnaise Bank, Dr. Murungaru, Duly Authorised Representative Euromarine Industries Inc, Edward Clay, Empressa de Financas, Euromarine Industries, Euromarine Industries Inc, External Public Debt Register, Fred Ngatia, G.G. Kariuki Anglo Leasing, General Kibwana, Government of Kenya, Government of the Republic of Kenya, Gran Via Carles III, grand corruption, International Arbitration Court, International Chamber of Commerce in London, J.K. Mario, Jasiri Mombasa, John Githongo, Justice Emukule, Justice Ringera, kacc, Kenya Navy; Spanish financiers, Kenyans Anglo Leasing, Kioko Kilukumi, Managing DirectorRecardo Harris, Mars Group Kenya, Ministry Of Finance, Ministry of Justice and Constitutional Affairs, Mr. Salvador Surroca Vineta, Navigia Capital International Limited, Navy Ship, Navy Ship Contracts, oceanographic vessel, Office of the President, parliament, Parliamentary Accounts Committee, Parliamentary Committee for Defence, Parliamentary Departmental Committee for Defence and Foreign Relations, Permanent International Court of Arbitration, Permanent Secretary for Governance and Ethics British High Commissioner, Permanent Secretary Ministry of Finance – Joseph Magari, Permanent Secretary Office of the President, PO Box 30510, PriceWaterhouseCoopers, Pritpal Thethy, Quastels Avery Midgen, Ribadeo, Sammy Kyungu, Spain, Supplemental Credit Agreement, THE BOGUS CONTRACTS, UK

The UK gets tough on Corruption and asks Kenyans to Demand accountability, and transparency: Speech by the British High Commissioner to Kenya Rob Macaire, on the launch of the corruption brochure

Watch the video of the British High Commissioner, Rob Macaire here

They say you are never meant to start a speech with a negative, but let me break that rule by saying what this morning, and this publication, is not about.

It is not about singling out Kenya unfairly.   Corruption isn’t unique to Kenya.   There is not a country in the world that can claim to be corruption-free.   And as it’s a global problem, we need to work together to fight it. What we are talking about today is how we from the UK, working together with our EU and other partners, can help Kenyans to attack and overcome corruption.

But Kenyans, and countries who are friends of Kenya, know that the set of issues around impunity and corruption threatens the very future of this country.

This is not about being moralistic or over-dramatic.  It is a hard, sober analysis of governance issues as they affect Kenya.

I am sure that those of you in this room do not need any convincing. Many of you are in the forefront of the fight against corruption.   You know that high levels of corruption undermine the fundamental trust between government and the people. You know that it is inseparable from Kenya’s wider reform agenda, and from impunity in other areas such as the Post Election Violence.  You know that corruption in law enforcement and judiciary allows criminality to thrive, especially organised crime: drugs, arms traders, militia.    And you know that corruption is not, as some like to pretend, a victimless crime.

The victims of large scale plundering of the State by civil servants and politicians are ordinary Kenyans.  Wherever it occurs, corruption makes the rich richer and the poor poorer.   We all say that corruption is a plague. Well it is exactly like that:  a systemic problem,  that is easy to diagnose,  but hard to treat, something that weakens societies and prevents development.  And yet something that with common effort, can be rolled back.

The purpose of this booklet is to show what that common effort can consist of.  It gives a very brief outline of what the UK is actually doing, rather than just saying, to help fight corruption in Kenya.

[I am going to let Alistair Fernie talk about/Alistair has just spoken about] DFID’s approach to using UK development partnership as part of this effort.  But let me give you some other examples, including some areas that are often misunderstood.

First, visa bans. This is what everyone asks us about.  A lot of wananchi and civil society say to us ‘why don’t you ban more people, ban their families, name and shame them’.   The truth is that we do have a large number of people, over 20, on the list facing exclusion from the UK for reasons of corruption.  They include senior civil servants, politicians, and powerful businessmen, and they come from across the political spectrum.  But this policy isn’t something we want to do, it isn’t something we relish.  We would far, far rather see people being credibly investigated and prosecuted.  But seeing that no-one senior has ever been successfully prosecuted for corruption in Kenya, as a last resort we act unilaterally.  This is our contribution to showing that corrupt actions do have consequences, however much people think they can act with impunity.  And we look all the time to see if there are other names we should add to that list.

Second, law enforcement cooperation. We’ve greatly increased our resources in the UK over recent years to investigate and prosecute overseas corruption.  But this can be a frustrating area.  Take a case like the so-called Anglo Leasing contracts.   The authorities in the UK, led by our Serious Fraud Office, investigated every lead as aggressively as they could.  Last year, that included simultaneous raids by hundreds of police officers at addresses in various parts of the UK.   The UK would dearly love to see the criminals responsible for those scams brought to justice.  But despite all that effort, the SFO announced that the investigation in the UK had to be closed down earlier this year, because it could go no further without being getting more evidence from the Kenyan end.   I have spoken to the Kenyan authorities on numerous occasions about Anglo Leasing, trying to encourage more vigorous action.  But the buck is passed back and forth between the KACC, the Attorney General, the courts and the police.  I now see the AG is even trying to blame the US for the lack of Kenyan prosecutions.  It is difficult to avoid the conclusion that the political will to see results in that case is fundamentally lacking.

But results are possible, as examples from other parts of the world show.  For example recently, after cooperation with the Ugandan authorities, the UK successfully prosecuted and convicted the director of a UK company for corrupt payments to a Ugandan official.

A third  thing that the UK can do, and has succeeded in doing with other countries but not yet with Kenya, is to freeze corruptly obtained assets that come to the UK, and ideally return them to the country concerned.  There are now specialist units working on this in the UK, as part of our effort to prevent the UK being used to launder or store illegally gained wealth.  We have started to have some success for example in working with the Nigerian authorities: in that case some £70m of assets were frozen, and of that about £20m have been returned to Nigeria.   Why can’t we do the same with Kenya?  Because we need the evidence on which to act, which can usually only come from the country concerned.  We have requested such information from the Kenyan end, to enable our authorities to get to work.  And I should say that it is fantastic news that at last, the Kenyan Anti Money Laundering law passed in Parliament yesterday – if properly implemented, this could make a significant impact and also allow greater cooperation with UK and other international partners.

But if I have one overwhelming message for today, it is this.  We can and will help to fight corruption in Kenya.  We will stay the course.  We are optimistic that in the long run this challenge can be overcome.  But it will not be outsiders who win the battle.  It will be Kenyans.  .   The UK and other countries can help.  But the battle is a Kenyan one.

And all that sounds easy.  It’s not easy.  What can ordinary people actually do?Well, I don’t think integrity can be introduced top down.

Certainly, systems need to be put in place and made to work.  It will take courageous judges, investigators and politicians to start to break down the wall of impunity. If you put people, whether they are policemen, politicians, or parastatal directors, in a situation where there is no penalty for corruption, and every incentive to steal or demand bribes, the system will carry on being flawed, even if the personalities change.  So Kenya needs laws, needs a new constitution, needs judicial and police reform.

But a very wise Kenyan whom I was talking to just yesterday made a distinction between the hardware and the software of the country.    The constitution, the laws and the institutions are the hardware.  But the software is the value system that underpins them.  And as all of us who use computers know, there is no point having the fancy hardware, if the software is faulty.

And there is a lot of truth in that.  Because what this all comes down to, at its very root, is whether Kenya is a country that follows the rule of law. And the rule of law is different from just passing laws.  People need to believe in them and follow them.

When it comes to corruption, let’s be honest about the fact that there is an opportunity cost to integrity.   Deciding to refuse to pay a bribe may cost you a job, trouble with the police, or just an inconvenient delay in getting a basic service from government.  But in the long term, refusing to pay that bribe, or reporting corruption when you see it, is doing the right thing.

I am not suggesting that a problem like corruption can be overcome by moral renewal.  I wish it could.   It will take penalties and incentives to change behaviour.  But there is one thing that people can do, across the board.   Demand accountability. Hold people to account.  Your local officials, your police, your MP, companies you deal with – don’t put up with the old way of doing things.  Demand accountability, and demand transparency.   Don’t accept the unacceptable.

That would be my message to Kenyans.  You can’t change the world overnight.  But you can make a difference, and start the tide turning in the right direction.   I wasn’t here in 2002, but from what I hear, the tide was starting to turn in the right direction at that point:  people refusing to let matatu drivers pay bribes to the police, even making citizens’ arrests and handing people over to the police – a real social movement.  Sadly people’s hopes for a new corruption-free dawn were not realised.  But I take hope from those stories.  Hope that Kenyans will look up to the future, and demand results from their leaders and those in responsibility.  Kenyans shouldn’t  accept the unacceptable.  And neither should Kenya’s friends in the international community.

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USAID announces a new $45 Million (3.3 Billion Kenya Shillings) YES, YOUTH CAN initiative to empower the Youth of Kenya.  President Barack Obama’s Government supports Kenyan youth as agents for Peaceful Change.

US President Barack Obama’s Government has demonstrated yet again, that the United States of America supports the Kenyan Youth by announcing a new $45 Million ( 3.3 Billion Kenya Shillings ) YES, YOUTH CAN initiative to empower the Youth of Kenya. This programme will provide support over 3 years for Kenya’s young people to participate more actively to promote reforms, to generate employment and to empower themselves through a new youth – managed empowerment fund.

Announcing the new USAID initiative US Ambassador to Kenya, Michael Ranneberger said “we are doing this because in the wake of the post – election crisis – Kenyans have an historic opportunity to bring about fundamental change through implementation of Agenda Four. Our new initiative is a major step forward by the U.S Government to empower the youth of Kenya to play a decisive role in this process. We are launching this initiative with a sense of urgency because, as many observers have pointed out, reforms must be implemented before the end of 2010 in order to ensure future democratic stability and prosperity for all Kenyans. ”

Watch the clip here:

FACTS ABOUT THE YES, YOUTH CAN INITIATIVE

About the YES YOUTH CAN! Program

Purpose: To genuinely empower youth to develop themselves for greater voice in national and local reforms; and to create new opportunities for livelihoods that meet the aspirations of young Kenyans.

Technical goal: To support development in areas recovering from post-election violence, through building capacity of youth groups and organizations to engage with markets, government and communities, and pursue their legitimate needs and interests more effectively in a way that builds positive inter-ethnic networks.

Key Components of YES YOUTH CAN!

• Immediate, quick-impact projects for youth to promote youth voices on national issues, particularly the reform process, by encouraging and supporting independent grassroots organizations and activities.

• Building new skills, promoting economically viable youth enterprises, and strengthening youth voices on policies that affect young Kenyans. Activities include youth leadership and entrepreneurial training; business development; youth-led local strategic planning; grassroots community projects.

• Establish a youth-led, youth-managed and youth-owned Innovate for Change! Fund that provides immediate economic opportunities through block grants to youth by constituency -through new youth networks; loan funds; special projects that leverage GOK public funds, other donor contributions and private sector investments.

• Support and expand youth networks to encourage collaboration and leverage resources, through a national youth peace summit process; leadership training and learning exchanges between provinces and ethnic communities; information clearinghouse; SMS networking; national youth networks managed by youth themselves.

• Improve the enabling environment for youth enterprises and, organizations to meet youth needs and pursue youth interests. Youth will analyze national policies, laws and services for youth friendliness; address impediments for viable youth development; and support peaceful youth advocacy.

Guiding Principles of YES YOUTH CAN!

• Youth in the driver’s seat

• Transparency through agreed upon rules of engagement

• Active vouth engagement in program decisions

• Learning by DOING

• Leveraging through partnership.

What YES YOUTH CAN! Will Accomplish

Establish more effective national and local youth networks: with real capabilities to peacefully encourage reforms; promote self development;

and build know-now on generating capital, new partnerships, and jobs.

Create a youth-owned and youth-managed development fund: managed with absolute transparency; accountable to youth, with a clear growth strategy to expand benefits to more youth and become self-sustaining.

For inquiries please contact the Program Manager, Ms. Lisa Whitley, at tel: 020-862-2000.

Tags: 2010, About the YES YOUTH CAN Program, and strengthening youth voices on policies that affect young Kenyans, between provinces and ethnic communities, building capacity of youth groups, Building new skills, business development, communities, democratic stability, development in areas recovering from post-election violence, empower youth, entrepreneurial training, FACTS ABOUT THE YES YOUTH CAN INITIATIVE, fundamental change, generate employment, GOK public funds, government, grassroots community projects, historic opportunity, implementation of Agenda Four, information clearinghouse, initiative to empower the Youth of Kenya, Kenyan Youth, laws and services for youth friendliness, leadership training, learning exchanges, Lisa Whitley, livelihoods, markets, Mars Group Kenya, Michael Ranneberger, national and local reforms, national policies, national youth networks, national youth peace summit process, Njeri Mati, other donor contributions and private sector investments, Partnership for Change, positive inter-ethnic networks, post-election crisis, President Barack Obama, promote reforms, promoting economically viable youth enterprises, prosperity, reforms, SMS networking, to empower the youth of Kenya, U.S Government, U.S. Ambassador to Kenya, United States of America, US, USAID, USAID- Kenya, YES, YOUTH CAN, youth enterprises, youth leadership, youth managed empowerment fund, youth-led local strategic planning

Anglo Leasing and Grand Corruption – Amos Wako has hit rock bottom blaming the United States and the United Kingdom for his failures.

When he last made a statement on the Anglo Leasing scandal on May 19^th 2009, Kenyan Attorney General Amos Wako told Kenya’s Parliament that the perpetrators of this multi billion shilling scam “are clearly set out in the various reports of the Controller and Auditor-General, PriceWaterHouseCoopers and so on.”  He then named names saying “I can inform you that in those reports and also in the arbitrations that we are handling, we have a Mr. Pereira and a Mr. Kamani as the main people behind these contracts.”

Last Thursday, Amos Wako was back in Parliament naming names as he stood to answer a question on the alleged termination of Anglo Leasing investigations in the United Kingdom.  Things heated up after the Attorney General complained of non-cooperation by the US Government on Anglo Leasing.  All but accusing Barack Obama’s government of shielding two key American suspects, Amos Wako said; “ I speak with no fear of contradiction whatsoever by the Ambassador of the USA and the Federal Bureau of Investigations (FBI). The fact is that they have not succeeded in convincing the two key suspects. One of them was grossly involved, locally, in most of the Anglo Leasing deals. The other one was involved overseas in the same deals.”

The two he is referring to are Dr. Merlyn Kettering, formerly a consultant with the Kenyan Treasury, and Bradley Birkenfeld, formerly a Swiss banker and now awaiting entry to prison for money laundering.

Even though it is at a drip-drop rate, the Attorney General’s recent statements are reaffirming the obvious to Kenyans – Anglo Leasing remains a scam.  So, why is it that there appears to be an attempt by his office to advise Cabinet to enter into negotiations, arbitrations and walk-away settlements with people he keeps accusing of fraud?  From what we have read it would also appear that the Attorney General’s statement to Parliament of May 19^th 2009, is at complete variance with what his office is now suggesting to Cabinet.  At least 4 contracts that he told Parliament were terminated apparently were not terminated – specifically, the Forensic Science Laboratories project, the Immigration Security Documentation and Control Systems project, the Kenya E-Cops Security Law and Order Systems project and the Export Lease Purchase of Security Vehicles for the Police project.

Who’s fooling who?

Below is Amos Wako’s latest evasive parliamentary performance on December 3^rd 2009 taken from Hansard.  [Please note the sub-headings in italics are ours and are placed for the purpose of facilitating reading – all else is exactly as published in Hansard]  We hope that Kenyans will take the opportunity to  judge for themselves whether after 18 years at the State Law Office Amos Wako is deserving of his job, especially as was completely unable to answer a straight forward question on the existence or non-existence of an extradition treaty between Kenya and the United States of America.  The answer is that there is an Extradition Treaty between Kenya and the United States of America.  It was first entered into in 1931 and was extended in 1965 upon Kenya attaining Independence from Britain.  According to the Kenya – USA Extradition Treaty, Extradition shall be reciprocally granted for 27 listed criminal offences.

Sadly Parliament went on recess a week later until March 2010 before Amos Wako could provide his much awaited answer to this basic, but extremely significant question.

———————————————————————————–

NATIONAL ASSEMBLY

OFFICIAL REPORT

Thursday, 3rd December, 2009

The House met at 2.30 p.m.

[Mr. Deputy Speaker in the Chair]

Page 20

Question No.042

TERMINATION OF ANGLO LEASING INVESTIGATIONS IN UK

Mr. Ochieng asked the Attorney-General:

(a) if he could confirm that investigations into the Anglo-Leasing related contracts by the Serious Fraud Office (SFO) in the United Kingdom have been terminated due to lack of co-operation by the Kenya Government; and,

(b) what steps the Government is taking to ensure that the matter is conclusively investigated and money and property stashed abroad is recovered to assist in meeting the growing needs of the country.

Serious Fraud Office investigations have only been suspended not terminated

The Attorney-General (Mr. Wako): Mr. Deputy Speaker, Sir, I beg to reply.

(a) The investigations into 18 Anglo Leasing related contracts by the Serious Fraud Office (SFO) in the UK have not been terminated. They have only been suspended in two contracts where the High Court has issued an injunction order stopping further investigations and prosecution.

(b) The Kenya Anti-Corruption Commission (KACC) is doing its best to ensure that the matter is conclusively investigated and money and property stashed abroad are recovered. However, this depends on mutual legal assistance KACC receives from foreign competent authorities.

The United States Government is failing Kenya

The SFO of the UK and the Swiss Competent Authorities have extended good cooperation and are assisting in the investigations. The same cannot be said of the Competent Authorities of the USA who have failed to get key witnesses/suspects, Dr. Merlyn Kettering and Mr. Bradley Birkenfeld to co-operate with the investigations being carried out by the KACC.

Only Nedermar and Euromarine have standing injunctions against the KACC

Mr. Ochieng: Mr. Deputy Speaker, Sir, you have heard it all from the Attorney- General. As you know, this country is currently struggling a lot to raise money to buy Passats and even to settle IDPs. Here, you have heard the Attorney-General confirm that a lot of money is stashed outside. Nevertheless, which are these two contracts he is talking about? For what reason did the High Court put an injunction stopping further investigation and prosecution of this matter?

Mr. Wako: Mr. Deputy Speaker, Sir, with regard to these two contracts, I must say I will be very guarded because of the sub judice rule. We have filed an appeal and it is coming up for hearing on 2nd February, 2010. However, let me just mention something about the two cases, but not go too much into the content. It is the opinion of the Attorney-General that the ruling was completely wrong in law and cannot withstand a proper judgment and appreciation of the issues involved. It went completely wrong. In fact, I am agitated about it because it was wrong. That is why I know that in the Court of Appeal, which consists of three judges, we should be able to succeed. The two cases are the Nedermar Technology and the Euromarine Industries.

US Travel Bans are not hampering AG’s ability to do his job and he insists that there is a failure to cooperate with Kenya

Mr. Imanyara: Mr. Deputy Speaker, Sir, it is always a pleasure to see the Attorney-General in this Chamber. He has said that they have only suspended investigations and prosecution into two cases and that it is not true that they have been terminated. Is it not on record, which is also well known to the Attorney-General that it is none other than the British High Commissioner in Kenya who issued a public statement complaining that the Kenyan Government had refused to co-operate and that is why the SFO had terminated the investigations?

Arising out of that, is the Attorney-General not misleading the House by saying that the USA Competent Authorities are not co-operating when we know that part of the reason the USA Government has issued travel bans against senior Cabinet Ministers and senior Government officials, including my very good friend, is because the Government has failed to co-operate with international organizations to do a thorough investigation on the Anglo Leasing cases?

Mr. Wako: Mr. Deputy Speaker, Sir, starting with the United States of America (USA), I speak with no fear of contradiction whatsoever by the Ambassador of the USA and the Federal Bureau of Investigations (FBI). The fact is that they have not succeeded in convincing the two key suspects. One of them was grossly involved, locally, in most of the Anglo Leasing deals. The other one was involved overseas in the same deals.

I am not really blaming the FBI; let it not be misunderstood. The fact of the matter is that they would also be the very first ones to admit that, according to the laws of the USA, they cannot force any person to co-operate with foreign investigative agencies.

The FBI wants to help, but their laws prohibit them from doing so.

Mr. Deputy Speaker, Sir, this is not the first fraud case involving Americans. It may be recalled that during the Fourth All African Games, there was an American who was key in a scandal, but as soon as he stepped foot on American soil, he got immunity.

Consequently, we were not able to proceed any further with his case. Once a citizen of the USA steps on American soil, he is not obligated by law to co-operate with a foreign agency. I am quite sure that if the hon. Member who is a very close friend to the Ambassador of the USA, and he consulted him, he would confirm this fact. The Ambassador of the USA himself confirmed this fact in the latest request about Bradley.

So, I do not see any contradictions on that one.

It is true that the British High Commissioner cited lack of co-operation. However, that lack of co-operation was due to the fact that the courts had injuncted the investigations of the two cases. In the United Kingdom (UK), under the law, mutual legal assistance can only be extended on an ongoing investigation. Therefore, the fact that the injunction had been obtained meant that the SFO could not continue with it. I am very pleased that, within a week or two, I engaged in very serious discussions with the SFO. I was in London at that time.

Mr. Deputy Speaker, Sir, we corresponded with the SFO, and they agreed with me on two things: That the judgements should be construed to, very strictly, only confine themselves to the two projects. Initially, they thought it was about all the projects. So, they have agreed only on those two projects. Investigations would continue on the other projects. I provided the necessary certification for those two projects. About a month ago, I received a letter from my counsel. The good news is that the SFO is going ahead with the case. My counsel requested us to provide the certificate, which we provided.

There was an issue about returning of some evidence they had obtained prior to the injunction being obtained. According to the law in the UK, you have to return any evidence to the owners within 30 days. I am very pleased to inform you that the SFO has undertaken to the Attorney-General of the Republic of Kenya that, that evidence will not be returned to the owners until we have had the opportunity for the appeal to be heard. In case those people file the application there, we shall go there and defend the case. So, I want to assure the people of Kenya that the evidence is preserved.

Mr. Deputy Speaker, Sir, as far as the Swiss investigations are concerned, I am glad that they are ongoing. The information we received initially was not sufficient. I believe the Committee is aware of that fact, because we produced letters before it. Just before I came here, the Swiss Ambassador talked to me and said that they should be receiving more information in the course of next week. So, we are ready to receive that information to see what it is all about.

Mr. Imanyara: On a point of order, Mr. Deputy Speaker, Sir. You have heard the Attorney-General say that he is not blaming the FBI. Who is he blaming, since he is blaming somebody? He knows that the FBI is the organisation that is investigating the cases, but he says that he does not blame that organisation. Who is he blaming?

Mr. Wako: Mr. Deputy Speaker, Sir, the Attorney-General of the Republic of Kenya is not in the habit of blaming people. He is just in the habit of explaining matters. I have explained that part of the problem in the USA appears to be the law, which prohibits the competent authorities there from ensuring that their citizens comply with overseas investigations. That appears to be the law that is there. So, I have just explained that fact.

Dr. Khalwale: Mr. Deputy Speaker, Sir, I am amazed that the Attorney-General of the Republic of Kenya wants to give us the impression that he is holding brief for the Attorney-General of the USA, or the FBI. The Ambassador of the Government of the USA has been very clear that they are committed to fighting corruption in Kenya. In fact, they have gone ahead and banned our Attorney-General from visiting the USA. What sanctions are you preferring against the Government of the USA for the fact that they have refused to co-operate with us in releasing those suspects who are the masterminds of this fraud?

Mr. Wako: Mr. Deputy Speaker, Sir, I am appealing to this House, starting with Dr. Khalwale, to rise up in unison to condemn and urge the Government of the USA to co-operate with our investigations, so that we can unearth the whole saga of Anglo Leasing. Now that I have informed you, please, speak up. I am quite sure that Dr. Khalwale is capable of speaking up.

(Mr. Mbau stood up in his place)

Mr. Deputy Speaker: Mr. Mbau, do you want to speak up?

Mr. Mbau: Mr. Deputy Speaker, Sir, I want to speak up. The Attorney-General has been asked to state who he is blaming, so that we can know where the buck stops. He explained himself in detail and eloquently. At this rate, will the Attorney-General of the Republic of Kenya be able to, at one time, squarely place the blame where it belongs and successfully convict the culprits?

Mr. Deputy Speaker: Mr. Mbau, the Attorney-General has told you that he is unable to prosecute because the authorities in the USA are not co-operating. So, can you ask a question that is relevant? You do not keep on asking the same question. He has explained himself.

Mr. Mbau: Mr. Deputy Speaker, Sir, if the authorities in the USA are unable to prosecute—

Mr. Deputy Speaker: They are unable to “co-operate”, and not “prosecute”.

Mr. Mbau: Mr. Deputy Speaker, Sir, if the authorities in the USA are unable to co-operate, how about the cases that derive their origin of wrong-doing from Kenyan soil?

Mr. Wako: Mr. Deputy Speaker, Sir, all these cases arise from Kenya. The agreements relating to the Anglo Leasing scandals were made here. The fact of the matter is that, in order for us to apprehend the key suspects and the initiators of these projects, we need the assistance of foreign investigation agencies. Particularly, if we are aiming at getting our money back from wherever it has gone, we require the co-operation of foreign investigation agencies. That is why I want to put it on record that, at least, we are receiving assistance from the SFO of the UK. The Swiss authorities are also extending the necessary co-operation. Therefore, maybe, using them, we should be able to make out a case on a few of those matters. However, I would love the USA authorities to get those two people, so that we can unravel the whole saga. So, please, speak up.

Mr. Lessonet: Mr. Deputy Speaker, Sir, last year, we got a very hefty refund. Could the Attorney-General tell this House who refunded that money?

Mr. Wako: Mr. Deputy Speaker, Sir, I think we should be happy that, at least, we have the money.

An hon. Member: How much? Who refunded it?

Mr. Wako: Mr. Deputy Speaker, Sir, that is a different Question. I can give the hon. Member details if specifically asked to do so. The details are with the Ministry of Finance.

Mr. Imanyara: On a point of order, Mr. Deputy Speaker, Sir. You heard the Attorney-General clearly state that we should be happy that we got a refund. That means he is aware where that money came from. Could he tell us who refunded this money, now that he says we should be happy that it was refunded?

Mr. Wako: Mr. Deputy Speaker, Sir, I can only say what is within my competence; that is, I am happy the money was received. As to who refunded it, that is a different question which can be answered by the Ministry of Finance.

Attorney General is Not Aware of an Extradition Treaty between Kenya and the United States of America?

Mr. Ogindo: Mr. Deputy Speaker, Sir, aware that the Attorney-General is a signatory to most of these contracts; further aware that he is the chief prosecutor, and, possibly, his privy to Kenya being signatory to certain treaties, could he clarify whether there is an extradition treaty between Kenya and the United States of America (USA)?

Mr. Deputy Speaker: Is there an extradition treaty between Kenya and the USA for criminals?

Mr. Wako: Mr. Deputy Speaker, Sir, I am not aware of it now, but there exists arrangement for that to happen. I will be able to answer that question fully later.

However, I know that we have been cooperating very much on the issue of drug trafficking and it all depends on the consent of the persons involved.

Mr. Deputy Speaker: Clearly, extradition treaty would be if there are criminals hiding in the USA, then you would seek them to be extradited here.

That is a very basic thing!

Mr. Wako: Mr. Deputy Speaker, Sir, I want the hon. Members to bear in mind that we use the extradition treaty when we have collected enough evidence to be able to apply to the court in the USA. We cannot use the extradition treaty for suspects. We use it where you have finalized the case and there is enough evidence—

Mr. Ogindo: On a point of order, Mr. Deputy Speaker, Sir.

Mr. Deputy Speaker: Hon. Attorney-General, you could be treading on very dangerous grounds there.

Mr. Ogindo: Mr. Deputy Speaker, Sir, I am a little bit disappointed by the response given by the Attorney-General. He says he needs evidence before he can go for the suspects. There is already some evidence. The thrust of my question is: If there exists a treaty, what steps he is taking to ensure that we get the suspects extradited to Kenya?

Mr. Wako: Mr. Deputy Speaker, Sir, when we reach a level where we can indict somebody, then that will be put in motion.

Dr. Khalwale: On a point of order, Mr. Deputy Speaker, Sir. Obviously, when the Attorney-General contemplated to ensure that these people come back to this country to face our laws, he must have weighed the various options. Is he telling us, as a competent advisor of the Government, that he does not know that extradition was one of the options? If it was one of the options, how come he has not confirmed that we have signed such a treaty between Kenya and the USA?

Mr. Wako: Mr. Deputy Speaker, Sir, the first stage in any criminal proceedings is investigation. We were not requesting that these people come to Kenya. We were requesting that the investigators from the Kenya Anti-Corruption Commission (KACC) go to the USA and interrogate them there. That is the first stage! You do not jump a stage and start extraditing people. I can tell you that for Dr. Merlyn, the investigators from the KACC went to the USA at the invitation of the Federal Bureau of Investigations (FBI), who had identified where he lives and so on.

They went there. When they arrived there, they were told that he had just left the house to visit another state. They stayed there for some time, but he could not be traced.

They came back and they were told by the FBI that as soon as they trace them in the USA, they shall again invite them. We are still awaiting that invitation.

Mr. Ogindo: On a point of order, Mr. Deputy Speaker, Sir. This matter is very important to this House and this nation. From the responses we are getting from the Attorney-General, one sees very little commitment and determination to bring this matter to an end. What is the commitment in the Office of the Attorney-General to bring this matter to a logical conclusion?

Mr. Deputy Speaker: Mr. Attorney-General, you owe this House and the country a better explanation than that! As a matter of fact, there were Kenyans who were extradited from here without us carrying investigations on them or the USA investigators coming here. There is reciprocity; could you give a proper answer to the House?

Mr. Wako: Mr. Deputy Speaker, Sir, there are precedents, but there are procedures to be followed. An application comes in and it must disclose sufficient evidence against the person being sort for. It goes to court and the court has to agree and then extradition takes place. That is why I am saying, just because you suspect somebody, you cannot just ask for extradition. In fact, that application would fail if it goes to court. In an extradition case, the court must be satisfied that there is sufficient evidence against that person. It must also be satisfied that it is not an offence of a political nature.

Now I was asked what commitment the Attorney-General has; total commitment.

Mr. Ogindo: On a point of order, Mr. Deputy Speaker, Sir. What the Attorney-General is trying to outline, I believe, are squarely within his docket. When it is just in words and he is not telling us what he has done and how far he has gone, it leaves us bewildered—

Mr. Deputy Speaker: So what is your point?

Mr. Ogindo: Mr. Deputy Speaker, Sir, my point is that the Attorney-General apparently has abdicated his duty. Could he confirm that he has not abdicated his duties?

Mr. Wako: Mr. Deputy Speaker, Sir, the Attorney-General has not abdicated his duties. He is a prosecutor. The matter is still under investigation which is not the responsibility of the Attorney-General. However, because of my total commitment, I am trying to help the investigators to ensure that they get sufficient evidence.

Mr. Lessonet: On a point of order, Mr. Deputy Speaker, Sir. I want to believe the Attorney-General is misleading this House. We are all aware that he has been banned from travelling to the USA. Therefore, he will not even be able to visit the USA to bring the suspects back to Kenya. He will not even be able to write a letter to the USA because they cannot communicate with him. Is he, therefore, misleading this House that he is able to investigate the Anglo Leasing cases?

Mr. Wako: Mr. Deputy Speaker, Sir, we are still communicating with the Government of the USA. The hon. Member will be surprised that I am still communicating at very high levels. I would like to educate the hon. Member that a revocation of a visa does not stop communication. Therefore, communication between us is still there. I also want to tell the hon. Member that it is not the Attorney-General who carries out investigations. It is not my mandate to carry out investigations. It is the Kenya Anti-Corruption Commission (KACC) that does that. I have learnt that the KACC or any of its officials has not been banned from going to the USA. Even today, I know that the KACC is statutorily responsible for investigations and not the Attorney-General. This is communicated to the Government of the USA. Therefore, what we can do, rather than engage in semantics, is to rise up and make some “noise” so that the KACC can successfully investigate Anglo Leasing cases so that I can prosecute because I am ready, able and willing.

Mr. Kathuri: On a point of order, Mr. Deputy Speaker, Sir. Is the Attorney- General in order to refer us even on very simple questions which have simple answers to the Deputy Prime Minister and Minister for Finance, like naming those who returned the money to Kenya, when he knows that he is just taking us round in circles so that we can get confused and behave like rats in a gourd?

(Applause)

Mr. Wako: Mr. Deputy Speaker, Sir, I answered that question because I was cognizant of the Standing Orders of this House. I was also cognizant on who is supposed to answer those Questions and the Organization of Government. I have said that, that question is different from the one before this House. Since the hon. Member wants to know the answer, I advise him to go to the appropriate Ministry. I think there is no harm in doing that. Is there any harm in doing this?

Mr. Ochieng: Mr. Deputy Speaker, Sir, maybe, the Attorney-General should shed some light on how much Dr. Merlyn and Mr. Bradley defrauded Kenya.

Mr. Deputy Speaker: How much are they suspected to have taken from Kenyans?

Mr. Wako: Mr. Deputy Speaker, Sir, I may not know the amount, but what we know is that they were both involved actively in concluding those contracts. These are some of the issues that we want to find out in our letter of request to interrogate them properly.

Mr. Imanyara: On a point of order, Mr. Deputy Speaker, Sir. At some stage when the Attorney-General was answering these questions, he said that he can provide the answer to the existence or lack of an extradition treaty between Kenya and the USA later. When will he do that? When is that later? Can he come back to this House on a particular day and give that answer that he says he will give later so we can follow up the matter?

Mr. Wako: Mr. Deputy Speaker, Sir, by the way, that is a matter of law, and my learned friend is a lawyer, and the books are here.

Mr. Imanyara: On a point of order, Mr. Deputy Speaker, Sir. I am merely following up on the Attorney-General’s undertaking. He has said on the Floor of this House that, that is a question he can answer later on. It is a matter of law but he undertook in this House, just a few minutes ago, to provide evidence of the existence of a treaty.

Mr. Wako: Mr. Deputy Speaker, Sir, I think the HANSARD will bear me out. I did not undertake to provide that evidence as the hon. Member alleges. I undertook to answer later.

Ms. Odhiambo: On a point of order, Mr. Deputy Speaker, Sir. I have also had occasion to interrogate the Attorney-General in the Departmental Committee on Justice and Legal Affairs. Is he in order to evade this issue? The same thing he did in that Departmental Committee is the same thing he is doing here. He has referred the matter back to Mr. Imanyara who is not the Attorney-General of Kenya and does not draw salaries every month end as the Attorney-General of Kenya? Is the Attorney-General in order to do that?

Mr. Deputy Speaker: Mr. Attorney-General, the Chair remembers vividly that you were not very certain whether there is an extradition treaty between Kenya and the USA. You said that you can find that out later on. That seems to be the core of these points of order. You have also put it that there are suspects who are principle in this issue.

So, can you give an undertaking on when you will provide that information to this House so that the nation and the House can know whether there is that kind of arrangement between the two countries?

Mr. Wako: Mr. Deputy Speaker, Sir, I will give the answer. However, Ms. Odhiambo was wrong to ask whether I was in order because I never even stated what made her rise on the point of order.

Mr. Ogindo: On a point of order, Mr. Deputy Speaker, Sir. The Attorney-General is still being evasive. Instead of starting with the first question, he has started with the last question and sat down. However, he is willing to tell us whether there is an extradition treaty between Kenya and the USA. The question is: When will he do that?

Mr. Deputy Speaker: Mr. Attorney-General, the Chair is conscious of this and the concerns raised by both the House as well as the nation. Therefore, I direct that this Question be put on the Order Paper on Thursday, next week, and you come up with an elaborate and comprehensive answer that literally answers every concern of Kenyans and this House.

(Applause)

Mr. Wako: Mr. Deputy Speaker, Sir, I am not challenging your ruling but the fact of the matter is that the Clerk of the National Assembly and the Speaker are aware that I will not be here next week. Could you defer this Question to the following week?

Mr. Deputy Speaker: Nonetheless the Question should be placed on the Order Paper on Thursday the following week!

(Question deferred)

Mr. Wako: That is okay, Mr. Deputy Speaker, Sir.

Tags: 20 Cour de Rive Geneva, 2nd February 2010, A. Gusman, Ali Korane, Ambassador of the United States of America to Kenya, Amos Kimunya, Amos Wako, Andrew McGill, Anglo leasing, Anglo Leasing and Finance Limited, Anglo Leasing related contracts, Anglo Leasing suspects identified in Kenyan Parliament, Anura Perera, Apex Finance Corporation Geneva Switzerland, Apex Finance Corporation of Switzerland, appeal, Asset Recovery, asset tracing, assistance of foreign investigation agencies, Attorney General, Attorney-General of the Republic of Kenya, Barack Obama, Boni Khalwale, Bradley Birkenfeld, British High Commissioner in Kenya, CAVEAT EMPTOR, Chris Murungaru, Chris Obure, Chris Okemo, Ciara Systems, Clerk of the National Assembly, co-operation of foreign investigation agencies, Colin Flynn, Competent Authorities of the United States of America, corruption ongoing investigation, Court of Appeal, Dave Mwangi, David Doyle, David Dunkley, David Mwiraria, Deepak Kamani, Departmental Committee on Justice and Legal Affairs, Deputy Prime Minister and Minister for Finance, Deputy Speaker, Dick Berg, disclose sufficient evidence against the person being sought for, Dr. Merlyn Kettering, drug trafficking, Edwin Ochieng Yinda, Elias Mbau, Emilio Kathuri, Euromarine Industries, evidence obtained in the United Kingdom, extradition treaty between Kenya and the United States of America, Farah Maalim, FBI, Federal Bureau of Investigations, First Mercantile Securities Corporation of Geneva Switzerland, foreign competent authorities, Fourth All African Games, Gitobu Imanyara, Globetel Inc, Globetel Incorporated, Gunarwadane, Hansard, Harry Smith Henkirsen, High Court judgement, High Court of Kenya, High Court Ruling, IDPS, immunity of American suspects alleged in Kenyan Parliament, Impressa de Financas, indictment, Infotalent Ltd, injunctions, international cooperation, investigations, irrevocable promissory notes, J.K. Mario, Joseph Magari, Julius Sunkuli, kacc, Kenneth Marende, Kenya Anti Corruption Commission, Kenya government, Kenya National Assembly, KENYA NATIONAL ASSEMBLY OFFICIAL REPORT, Kenyan Attorney-General banned from visiting the United States of America, KNS Jasiri Mombasa, LBA Systems Ltd, LBA Systems of Scotland, letter of request to interrogate, Leyland Export Ltd, London, Luka Katushenko, Margaret Chemengich, Mars Group, Mars Group Kenya, Martin Ogindo, masterminds of the Anglo Leasing fraud, Michael Ranneberger, Midland Finance & Securities of Switzerland, Millie Odhiambo, Ministry, Moody Awori, Moses Obudo, Musalia Mudavadi, mutual legal assistance, mutual legal cooperation, Mwagazi Mwachofi, Mwalimu Mati, Navigia Capital International Ltd., Nedemar Technology, Nedermar Technologies BVI, nolle prosequi, Organization of Government, parliament of Kenya, Passats, Patrick Gichohi, Pollyins Ochieng Anyango, Project 99, Project Nexus, prosecution, prosecutor, Question No.042, rats in a gourd, receiving assistance from the SFO of the UK, reciprocity, returning of evidence, Ribaldo, Robert Macaire, S.K. Bundotich, Sammy Kyungu, SERIOUS FRAUD OFFICE, SFO, Silverson Establishment, Silverson Establishment (UK), Simeon Lesirma, Simeon Nyachae, Sound Day Corporation, Sound Day Corporation of England, Speaker of the National Assembly, Standing Orders, sub judice rule, suspects, suspended investigations, suspended prosecution, Swiss Ambassador to Kenya, Swiss authorities are also extending co-operation, Swiss Competent Authorities, Termination of Anglo Leasing investigations in United Kingdom, three Judge bench, UBS, Uhuru Kenyatta, undertaking to provide information to the Kenya National Assembly, United Kingdom, United States of America visa ban, Universal Satspace, US travel bans against senior Kenyan Government officials, US travel bans against senior Kenyan Cabinet Ministers, William Ntimama, William Ruto, Wilson Boinett, witnesses, Zakayo Cheruiyot

The clamour for a new Constitution Series: Hon. Paul Muite, a former legislator and Senior Counsel at the Kenyan Bar, takes us on a historical journey through the painful struggle to reclaim democratic space in Kenya after 46 years of derogation of fundamental freedoms of the people, and dictatorial impunity. This informative, ‘must-watch’, series in six parts is now available on the Internet.

Part One

Paul Muite, a former legislator and Senior Counsel at the Kenyan Bar, reminds Kenyans that they inherited a good Constitution at Independence. About 40 amendments to the Constitution created an imperial presidency under Jomo Kenyatta.  The powers were inherited by Daniel arap Moi who completed the absolute derogation of fundamental freedoms by establishing a one party State and criminalising opposition. The slide away from the Independence Constitution towards a dictatorial constitutional order was characterised by political assassinations, detentions without trial and rampant elite corruption.  By the first years of the 1980s Kenya was ripe for an uprising.  Hon. Muite talks of illegal detention of human rights defenders and political assassinations by the State and how and why the Judiciary ceased to be independent and became a tool for abuse by the Executive.  The period is 1963 to 1983.

Watch part one of the series here: http://marsgroupkenya.org/marstv/?v=ZtG9bePklEM

Part Two

As the Daniel arap Moi regime became more oppressive, torture chambers were established in the provincial administration headquarters, Nyayo House on Kenyatta Avenue bordering Uhuru highway in downtown Nairobi.  Moi’s political slogan was Nyayo (footsteps in Kiswahili) signifying his overt continuance of Jomo Kenyatta’s policy.  By a 1982 constitutional amendment Kenya was made a one party state under KANU and all political opposition was prohibited and suppressed.  So, democratic activists innovated.  Using the international media and professional associations they started to expose the arap Moi dictatorship for what it really was, and to encourage Kenyans to assert their right to democracy. Moi fought back, viciously. Hon Muite continues his narration in part two of this six part series. The period is 1982 to 1990.

Watch Part two of the series here: http://marsgroupkenya.org/marstv/?v=JxM6XZZIMu2

Part Three

Crack down! Setting up a Democratic opposition in Kenya involves creating a united front of unlikely bedfellows, politicians led by Jaramogi Oginga Odinga, Kenneth Matiba, Charles Rubia, Masinde Muliro, the Church and the Law Society. Swoops, mass arrests and detention of lawyers and democratic activists is Arap Moi’s reponse to the formation of opposition pressure groups – most famously, FORD the Forum For Restoration Of Democracy in Kenya. The period is only one year 1990-1991. Democratic  activists confront and challenge Moi head on suffering economic ruin, torture, exile and an uncertain future as international geo-politicial shifts in priority give Moi an unexpected fresh lease of life.

Watch Part three of the series here: http://marsgroupkenya.org/marstv/?v=eQfQw2XfJRs

Part Four

Paul Muite recaps the history opportunists capturing the reform struggles from the 50’s into the first decade of the 21^st century. It is a cautionary tale against political dynasties and advocating that Kenyans need to act in their enlightened self interest. Land, freedom and the perpetual search for justice.

Watch Part four of the series here: http://marsgroupkenya.org/marstv/?v=k8MxxJSFyR2

Part five

Human Rights violations and persecution of democratic dissenters have taken place in Kenya since 1964. Never have there been so many extra judicial executions as have taken place between 2006 and 2009 under Mwai Kibaki. “ People tend to live in two worlds” It is a shame that so many Kenyans tolerate and even support violence by the State against its citizens all in the name of law enforcement. Paul Muite talks about the orgins of the mungiki, and its political connections.

Watch Part five of the series here: http://marsgroupkenya.org/marstv/?v=Ypmd/eT3dnE

Part Six

It is naïve to expect reform without reformers. Judge the prospects for a new Constitution this time round by the performance of the executive and Parliament in implementing the National Accord. There is a strong case made for immediate essential reforms to avoid a Constitutional crisis today and to make it possible for the next election to be democratic free, fair and peaceful. The period is now. What if there was a vacancy in the presidency today?

Watch Part Six of the series here: http://marsgroupkenya.org/marstv/?v=ge940D4zNY2

Tags: 21st century, 40 amendments to the Constitution, 46 years of derogation of fundamental freedoms of the people, abuse, and dictatorial impunity, Charles Rubia, constitutional amendment, Constitutional crisis, Crack down, criminalising opposition, Daniel arap Moi, Daniel arap Moi regime, democratic, democratic activists, Democratic opposition, detention of lawyers, detentions without trial, dictatorial constitutional order, dictatorship, economic ruin, election, enlightened self interest. Land, essential reforms, Executive, exile, extra judicial executions, fair, FORD, former legislator, free, freedom, geo-politicics, good Constitution, historical journey, history, Hon. Paul Muite, http://marsgroupkenya.org/marstv/?v=eQfQw2XfJRs, http://marsgroupkenya.org/marstv/?v=ge940D4zNY2, http://marsgroupkenya.org/marstv/?v=JxM6XZZIMu2, http://marsgroupkenya.org/marstv/?v=k8MxxJSFyR2, http://marsgroupkenya.org/marstv/?v=Ypmd/eT3dnE, http://marsgroupkenya.org/marstv/?v=ZtG9bePklEM, http://twitter.com/Marsgroupkenya, human rights defenders, human rights violations, illegal detention, imperial presidency, implementing the National Accord, Independence, Independence Constitution, independent, informative, international, international media, internet, Jaramogi Oginga Odinga, Jomo Kenyatta, Jomo Kenyatta’s policy, Judiciary, KANU, Kenneth Matiba, Kenya uprising. Hon. Muite, Kenyan Bar, Kenyans, Kenyatta Avenue, law enforcement, Mars Group, Mars Group Kenya, Mars Tv, marstv, Masinde Muliro, mass arrests, Mungiki, Mwai Kibaki, Nairobi, new constitution, Nyayo, Nyayo House, one party State, opportunists, oppressive, orgins of the mungiki, painful struggle, parliament, Part Four, Part One, Part Six, Part Three, Part Two, peaceful, persecution of democratic dissenters, political assassinations, political connections, political opposition, politicians, power, professional associations, prohibited and suppressed, provincial administration headquarters, rampant elite corruption, reclaim democratic space in Kenya, reform, reform struggle, reformers, search for justice, Senior Counsel, series, State, Swoops, the Church, The clamour for a new Constitution Series, the Forum For Restoration Of Democracy in Kenya, the Law Society, The period is 1963 to 1983, The period is 1982 to 1990, The period is 1990-1991, torture, torture chambers, tv, Uhuru highway, vacancy, video, violence by the State against its citizens, www.marsgroupkenya.org

Kenyans are allowing politicians to play a deadly game of Russian roulette with their lives.

Russian roulette is a potentially lethal game of chance in which participants place a single round in a revolver, spin the cylinder, place the muzzle against their head and pull the trigger. A single round is placed in a six-shot revolver resulting in a 1/6 (or approximately 16.67%) chance of the revolver discharging the round. Regardless of any player’s position in the shooting sequence, his initial odds are the same as for all other players. The revolver’s cylinder can either be spun again to reset the game conditions, or the trigger can be pulled again. The initial probability of each player for being killed is 1/6th, but the probability of being killed changes every time the trigger is pulled. The second player has a 1/5th (20%) probability of being killed, and the probability of the third player 1/4th (25%). Until player number 6 when the chance of being killed is (100%) assuming the bullet properly works.

This is the game that Kenyan Politicians are now playing with Kenyans and the future of this great Country. It is assumed that the politicians are taking turns spinning and firing the revolver until for Kenyans the chance of being killed is 100% when chaos erupts in Kenya Again.

Politicians are hoping that by re spinning the chamber, the game could continue indefinitely and Politicking could continue until only a few survive to 2012. But will the game last? And what if the bullet discharges as it surely will. Russian roulette guarantees someone will certainly die. Even the players are not in control of the outcome.

The only way Kenyans can evade this certain and very sudden death is to stop playing this senseless game. We have seen the dangers, all Kenyans remember when the Electoral Commission of Kenya pulled the trigger on December 29^th & 30^th 2007. Chaos of a magnitude never seen in Kenya erupted. Over a thousand Kenyans died, over half-a-million lost their homes and property, thousands were raped and our economy collapsed in 60 days.

Only then did Kenyans decide they had seen enough and rose to demand a cease-fire – an end to the game of  Russian roulette which politicians were playing with their lives. We opted for a negotiated agreement called the National Accord. We wanted a civilised option to sorting out our problems; Russian roulette was no longer palatable.

It did not take long after the signing of the National Accord and sorting out the power sharing agreement,  before the politicians decided it was time to play again. The politicians are now taking shots. The special tribunal is dying in Parliament, non- implementation of the National Accord reforms, No voters register, and corruption is at an all time high, campaigns for 2012 in high gear… are we at the sixth shot? Bang… and we’re out!

Before, they take that last shot, Kenyans must say, they are not playing this game. It is our lives the politicians are gambling with. When they have taken no action to deal with perpetrators and financiers of the Post election Violence they are playing Russian roulette.

When they have taken little action to implement the National Accord reforms  they are playing Russian roulette.

When they allowed the Rule of Law not to be applicable in Kenya they are playing Russian roulette.

When they have taken no actions to ensure that all eligible Kenyans have been registered to vote and re-enfranchised they are playing Russian roulette.  A vacancy in the Presidency today would mean chaos as no Kenyans apart from just about 100 thousand of us in Shinyalu and Bomachoge constituencies have elector’s cards.  What would happen to Kenya if we needed to elect a President suddenly? As things stand, we cannot vote because we do not have a voters register.  Instead of dwelling on conflict potentiality in the Draft Constitution between institutions – or in Kenyan parlance ‘centres of power’ – Kenyans should be agitating for their existing constitutional right to vote to be immediately returned to them.

With no voting mechanisms in place we are on a daily basis courting disaster as warlords reorganise themselves for the next shot at power – without a ballot.  And all because we Kenyans have failed to demand the implementation of the National Accord to the letter and have started attending political rallies in ever increasing numbers to support the politicians we allowed to take us to the brink of a precipice in 2007.  Wake up Kenyans, you cannot guarantee the outcome of this game.  You can’t win or break even – you must get out of the game.

Some say God only helps those who help themselves. Kenyans are we helping ourselves?

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