Thursday, October 23, 2014

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Kenya’s New Anti-Graft Tsar Comes with Baggage

After a line of failed predecessors, can Mumo Matemu – a man accused of corruption himself – fare any better in the fight against graft in Kenya?
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Any ideas? An anti-corruption suggestion box in Mombasa. Photograph by Marcel Oosterwijk.

Nairobi, Kenya:

Reciting the past criminal indiscretions of public figures is something of a national pastime in Kenya. Everyone knows who is ‘dirty’ and who is not. Those in the latter (and somewhat smaller) group have been, in recent years, the beneficiaries of various appointments to constitutional commissions reserved for men and women deemed to be of ‘high integrity’.

Among these bodies is the Ethics and Anti-Corruption Commission (EACC) which, as the name suggests, aims to make Kenya a more ethical and less corrupt nation. This is a tough ask, as shown by a recent report by Transparency International into domestic perceptions of corruption which ranked Kenya as the fourth most corrupt nation in the world and the third most in Africa.

New kid on the stumbling block

The EACC’s new boss, Mumo Matemu, a lawyer, was finally sworn in at the start of the month after a year-long legal debate over his integrity. At the centre of the legal battle was Matemu’s alleged malfeasance when he worked as a legal officer for the Agricultural Finance Corporation (AFC), a public body.

The Trusted Society of Human Rights Alliance, the NGO which brought the case, argued that Matemu had been an active member of a racket that led to the loss of billions of Kenyan shillings of taxpayers’ money. Allegations held up in court included the “fraudulent payment of loans to unknown bank accounts”, “swearing an affidavit with false information” in front of the High Court, and “failure to prevent loss of public funds entrusted to the AFC”.

Gitobu Imanyara, an MP at the time, shocked Parliament later when he revealed the extent of the improprieties that occurred at the AFC during Matemu’s tenure: “Businessmen of Asian descent would apply for loans of between KSh18 million [$200,000] and KSh24 million [$270,000] from AFC, and then, all these loans would be written off, and these loans amounted to over KSh5 billion [$57 million]”, he said.

The High Court in Nairobi blocked Matemu’s appointment to the EACC in September 2012 after agreeing with the facts presented by the Trusted Society of Human Rights Alliance. Matemu’s future at the EACC looked to be over. The anti-corruption lobby claimed the court’s decision as a significant victory against an important political player and a sign of intent that Kenyans wouldn’t allow individuals with chequered pasts to assume public office.

But the story wasn’t over. Matemu appealed and won. The Court of Appeal overturned the lower court’s decision, citing lack of concrete evidence to tie Matemu to the theft of public funds at the AFC.

The NGO has vowed to re-appeal the matter at the Supreme Court. But in the meantime, Matemu is getting down to work. And he wasted no time in painting his legal troubles as par for the course in the fight against corruption. “Someone asked me if I was aware that as I took the position to fight against corruption there were people who would join me in that fight but that there were others who would be engaged in the fight against the fight”, he said.

“I will ask Kenyans to respect the judicial process like I did and join me in the fight.”

A failure to fry

The fight against graft in Kenya has always had an illusory quality to it. From the onset, anti-corruption efforts seemed far more about show than delivering meaningful results. So much so that when in 1997 former President Daniel arap Moi was pushed by donors into establishing the Kenya Anti-Corruption Authority (KACA), he appointed John Harun Mwau, a man who would later be named on the US government’s drug kingpin list, to be its head.

In 2003, Moi’s successor, Mwai Kibaki, attempted to revive the fight against graft under the renamed Kenya Anti-Corruption Commission (KACC). Kibaki appointed Aaron Ringera, an old friend, to lead the outfit and said his government would have a zero tolerance policy against graft.

Ringera’s rhetoric was rousing – he famously stated that “All manner of fish will be fried, unapologetically, only in the oil of the Constitution of Kenya and laws made under it” – but beyond this, appeared ineffectual. The reasons for which were perhaps revealed in a leaked cable from a US ambassador, which read:

“[Ringera is] part of the system within the GOK [Government of Kenya] that protects its own from prosecution regardless of the crime committed and will, if necessary, kill to enforce the system.”

Ringera’s successor and the last man to serve as KACC boss before it was scrapped and replaced by the EACC was P.L.O. Lumumba, a professor whose no-sacred-cows approach won him few friends in political circles. The verbose Lumumba introduced a new vigour into the graft war but was removed from office along with his team in 2011 after MPs voted to disband the KACC, allegedly in order to fulfil a constitutional requirement to create a new commission.

In reality, it seems the main drive to dissolve the KACC was the fact Lumumba and the anti-corruption agenda posed a threat to many in the political class. Lumumba riled politicians and was widely criticised by MPs, who accused him of petty politics and empty talk. Lands Minister James Orengo, for example, suggested that Lumumba had been overstepping his place in going after ‘big fish’. “The fact that an MP may be engaged in misconduct is not necessarily grand corruption”, he said. “The commission, under its current leadership, thinks that when it puts an MP in trouble, it is dealing with corruption. That is a misguided strategy.”

Water Minister Charity Ngilu, whom Lumumba had been investigating, similarly revealed the nervousness of politicians at the time. If the Commission were to be given wide powers of investigation and prosecution, she said, “I do not think there would be anybody sitting in this Parliament”.

Hard graft

Kenyan pundits are divided on what Matemu’s appointment will mean for the fight against graft. Patrick Gathara, an award-winning Kenyan political cartoonist, believes Matemu should not have been allowed to take over at the EACC because of the serious allegations made against him.

“It is not about whether he is personally fit or not. It is the credibility of the EACC and the system of accountability that is at stake”, he told Think Africa Press. “As long as he has dark questions hovering over his past, then it is a mistake to have him heading the EACC. His appointment greatly compromises anti-graft efforts.”

However, Wycliffe Muga, a respected columnist who has been covering Kenyan politics for decades, disagrees. He feels that it is hard to pass judgment on people like Matemu when one takes Kenya’s history into account.

“People forget that it is only been ten years since Moi’s reign came to an end”, he says. “During Moi’s time, corruption was part of the furniture in most government institutions. It is therefore very difficult – if not impossible – to find anyone who is not linked to some corrupt deal either directly or through affiliation.

“For me what should matter is not so much Matemu’s background but whether his office is properly equipped to investigate graft and bring those responsible to book,” he explained.

Matemu’s case could end up having a degree of poetic irony to it. Lack of evidence may have been what saved Matemu at the Court of Appeal, but it is also likely to be the factor that limits his effectiveness when bringing cases against others.

Nonetheless, Matemu may benefit from disappointing predecessors who did not set the bar particularly high. And if his plans are well-implemented, his tenure could even mark a key turning point in Kenya’s long-standing fight against corruption. The halting implementation of devolution in Kenya means that many who are tempted by corrupt dealings have shifted their operations to the level of local government. And, keenly aware of this, Matemu has vowed to take the war against graft to the counties. Delivering on this would certainly help keep his name off the long list of failures. Matemu has come to his office with baggage but he doesn’t have to leave with it.

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