It’s Time For Kimunya To “Take The Fifth”
Jul 10th, 2008 by Mars Group Kenya
IT’S TIME FOR KIMUNYA TO “TAKE THE FIFTH”
By Paul A Mwangi
In Law, every person is entitled to the right of silence. In Kenya, this right is captured by Section 77(7) of the Constitution which says no person shall be compelled to give evidence at his trial. In the United States of America, this right is secured by the Fifth Amendment of the American Constitution. When a person elects to exercise his right to silence, he is known in U.S.A. as having “taken the fifth”.
Listening to the Hon. Amos Kimunya over the last three days or so, any lawyer would advise him that it is time he “took the fifth”. His explanations as to how he got to sell the Grand Regency Hotel have become so convoluted that they have now gone beyond the fallacious to the fantastic. The more Hon. Kimunya explains his conduct, the more he incriminates and convicts himself.
But before advising Hon. Kimunya that everything he says can and shall be used against him, I wish to also secure for him another of his constitutional rights. Section 77(2)(b) of our constitution says that every person charged shall be informed as soon as reasonably practicable, in a language that he understands and in detail of the nature of his offence. The following is the nature of Hon. Kimunya offence.
Hon. Kimunya has acted contrary to the Privatization Act, Act No. 2 OF 2005. This Act was introduced with the intention of changing the way we have previously dealt with the disposal of public assets. It is meant to make the government more accountable in this disposal and to secure for the public the best return in this exercise.
The Privatization Act was granted Presidential Asset in October 2005 and commenced by none other than Hon. Amos Kimunya in December 2007 when he also appointed a Privatization Commission as required by the Act. The effective date of commencement was 2nd January 2008.
It is interesting to note that Hon. Kimunya never wanted to commence this Act and was literally forced to do it. In August 2007, the Speaker of the National Assembly gave him seven days to say when he will commence the Act. Instead, he put advertisements seeking applicants to the position of Chief Executive Officer of the Privatization Commission. He could not explain how he could employ someone to be the executive of a body that did not exist because he was not commencing the Act.
And he only agreed to commence the Act after he was sued. Infact, he did it only a few days before the case came up for hearing in December last year. But still, he postponed the commencement for a month to January this year.
Anyhow, the first business required by the Act is the formulation of a privatization programme. This is a programme that lays out what, how, and when public assets will be sold. The Commission is supposed to forward this programme to the Cabinet for approval. When approved, it is then supposed to be advertised for the public to see.
Last year, Hon Amos Kimunya came under a lot of pressure for proceeding with the Privatization of Safaricom without going through the provisions of the Act. One would therefore have expected that since he had not commenced the Act, then he would have heeded its provisions this time round.
One would also further have expected that the Minister would have taken the chance of the sale of Grand Regency Hotel to operationalise a law sponsored by his own Ministry and over which he is the supervising Minister.
But more importantly, one would have expected Hon. Amos Kimunya to find himself as a subject of the law and to obey the law that requires him not to unilaterally sell off government assets without the approval of the Cabinet.
When he spoke to Parliament two months ago, Hon. Amos Kimunya said he had instructed the Central Bank to dispose off the Hotel “at the earliest opportunity”. But it is this very unfettered exercise of discretionary powers that the Privatization Act was aimed at. Who said that the selling of Grand Regency was the best decision in the interest of the Public? Didn’t Hon. Raphael Tuju recover K.I.C.C. building and immediately thereafter Hon. David Mwiraria put it under a state corporation? When was the decision made that the government was not interested in keeping the Hotel?
Under the Ministry of Tourism, the government has a parastatal called the Kenya Tourism Development Corporation which actually owns hotels. Who decided that it would not be in the public interest to place the hotel under this corporation? Indeed, K.I.C.C. has for decades wanted to have a hotel so that it can sell conference packages that include hotel accommodation. Who decided that it was not a good idea to place Grand Regency as a K.I.C.C. Hotel?
The person who decided was Hon. Amos Kimunya. But it was not a decision for him to make. He lost that when he commenced the Privatization Act. The law today is that all the Privatization of government assets must be considered by the Commission and approved by the Cabinet of Ministers.
Hon. Kimunya’s actions go contrary to the promise that was made by his predecessor Hon. Mwiraria when in 2005 he hold parliament:-
“This will not be a blanket privatization of everything the government has interests in. it will be selective privatization because the government must have control of those corporations that offer essential services”.
Beyond the illegal decision to privatize the Hotel, there is the question of the procedure. The Act sets out the methods to be used in liquidating public assets. The Act says that this can be done through public offering of share, concessions, lease, management contract, sale of assets, liquidation or any other form approved by the Cabinet.
The Act demands that every privatization must be done in an open and completive way with a view to ensuring that the proceeds received are a fair value of what is privatized.
Hon Kimunya says that the deal he got was too sweet and infact suggests that Kenyans should be clapping for him. But who decided this was the best price? Who decided on the best way to sell the interests? Again, it was Hon. Amos Kimunya and again, it was not his decision to make. It is a decision of the Commission and the Cabinet of Ministers.
And the facts suggest that it was a really bad decision. According to Hon. Kimunya himself, the Hotel was valued in 1997 at Kshs. 2.1 Billion. He then says that 10 years later, it was worth Kshs. 2.9 Billion. But that is not enough. He sold it for 1.8 Billion!!!! Is it any wonder why the deal is being described as “a farce?” While real estate values in Kenya have been increasing by leaps and bound, the value of Grand Regency Hotel only went up by Kshs. 800 Million in ten years, and when it came up for sale, it couldn’t fetch even that value.
An interesting provision in the Act relates to the eligible investors. Firstly, it says that both Kenyans and Non –Kenyans are eligible to participate in any privatization it then says that the Minister may issue guidelines setting up a minimum level of participation for Kenyans.
Hon Amos Kimunya seemed to have reached a decision that Kenyans should not buy Grand Regency Hotel, despite the often stated government commitment that Kenyans be encouraged to purchase public assets that come up for sale. Looking back at the oversubscription of Safaricom, I think Grand Regency sale would have fetched more money from the public. This is one decision that the Act leaves for the Minister to make. Clearly, it was wrong for the Act to leave such a decision with Hon. Kimunya.
Overall, Hon. Kimunya has broken just about each and every section of The Privatization Act. Little wonder that one of his most immediate critics was the Honorable Martha Karua, the Minister of Justice and Constitutional Affairs. And instead of Hon. Kimunya addressing the issues she raised, he went on a personal attack against her.
The concern however must extend to the many other decisions we have left in the hands of Hon. Amos Kimunya. Have these decisions been in the best public interest and how have they compromised the tax payer? For instance, it took 2 years for Hon. Kimunya to bring into force the Privatization Act. Was that in pursuit of public interest?
When Hon. Kimunya said last year that he would not investigate the owners of Mobitelea, was that a decision made in the public interest? And why is it that a public tender was good for the sale of Telkom shares but not good for sale of Grand Regency.
Those who want to defend Hon. Kimunya must ask themselves one question. What was his motivation? Why would he go to all those lengths to do it the very wrong way? How come he cannot show any action or decision he made that has a trace of protecting the public interest? And why is he talking like someone who doesn’t care about whether or not he got it all wrong? Well, you go figure.
The setting up of the Commission of inquiry to look into the sale of the Grand Regency Hotel by President Mwai Kibaki is not only shocking, but a direct attempt at taking Kenyans for fools.
Everybody knows that all commissions that have been set up by Kibaki have come to nothing. This surely is an exercise aimed at sanitizing Kimunya before he is brought back into government.
Every Kenyan has an idea of who exactly was behind the Grand Regency rip-off. For that same individual to pretend to investigate himself speaks volumes about what he thinks of Kenyans.
Parliament needs to come out more powerfully on this issue. Kenya has been looted for far too long. How long must Kenyans stand this brazen daylight robberies organized from the very top?