Jun 28th, 2008 by Mars Group
The recent confirmation, by James Orengo (Minister of Lands) and Amos Kimunya (Minister of Finance) that the Grand Regency Hotel has been sold has convinced Mars Group Kenya that it is necessary to urgently revisit the issue of amnesty for grand corruption, and in particular the need to delete from our statutes two amnesty provisions (sections 25A and Section 56B of the Kenya Anti Corruption and Economic Crimes Act) which were irregularly brought into force by Presidential Assent on October 10th 2007, as part of the Statute Law (Miscellaneous) Amendments Bill of 2007. These two amnesty clauses are being used to perpetrate acts against the public interest and to compromise investigations into grand corruption, and the recovery of corruptly acquired Kenyan assets worth hundreds of billions of shillings.
Section 25A authorizes the cessation of investigations, and the granting of conditional amnesty to corruption suspects, by the Director of the Kenya Anti Corruption Commission, in consultation with the Attorney General and the Minister for Justice, in certain cases, despite the President having explicitly rejected proposals for amnesty contained in the Statute Law Miscellaneous Amendment Bill of 2007, including the infamous proviso to section 7 which purported to establish a cut-off date for the KACC’s exercise of its powers.
A further section 56B was also introduced and formed the basis of recent transactions related to the Goldenberg scandal and the Grand Regency Hotel, Nairobi. The inclusion of Anglo Leasing debts in the Budget of the Government of Kenya shortly after the return to Kenya of Deepak Kamani and the Kenya Anti Corruption Commission’s opaque conduct and responses to press revelations of Mr. Kamani’s presence in Kenya highlights the need for immediate action to ensure that the public interest is not compromised by the Executive branch.
Kenyans have been aware for some time of the terms of the Kamlesh Pattni settlement of April 9th 2008 in which he “surrendered” the Grand Regency Hotel to the Kenya Anti Corruption Commission, which gave it to the Central Bank of Kenya who held a charge over this Goldenberg property. What they may not have known is that the settlement was grounded in an illegal law namely section 56B of the Anti Corruption and Economic Crimes Act. The trouble is that this provision and another (section 25A) were sneaked into the Act after they had been deleted by Parliament.
If you read the report of the Committee on the Administration of Justice on the amendments to the Anti Corruption and Economic Crimes Act, which were contained in the Statute Law Miscellaneous Amendments Bill, and this statement by the Kenya Anti Corruption Commission it is clear that all the amnesty amendments proposed by the KACC (including the amnesty provisions s.25A and s.56B) were deleted - and instead the Committee recommended its own provisions which were subsequently refused assent by President Kibaki on September 27th 2007. At the time he said: “Amnesty is however a major policy and public interest issue which cannot be addressed within the context of this [Statute Law Miscellaneous Amendments] Bill and which can only be addressed through a separate comprehensive Bill.”
The Kenya Anti Corruption Commission complained that Parliament deleted all its proposed amendments including section 56 B which was subsequently used to immunize Kamlesh Pattni. How therefore did it end up being inserted in the Anti Corruption and Economic Crimes Act? It was never debated by Parliament. The President’s Memorandum shows that section 25A and section 56 B were not part of the Bill which he sent back to Parliament. So how did these sections end up in the Anti Corruption and Economic Crimes Act?
Who inserted these provisions into our laws? There is no record in Hansard of the Parliament (or any committee of Parliament) that shows any debate on these clauses. Nevertheless these clauses are today being used with alacrity to “settle” corruption investigations to the disadvantage of the Kenyan public interest and entrenching impunity by offering criminals statutory immunity from justice and asset recovery.
THE GRAND REGENCY SALE AND THE PATTNI IMMUNITY ARE BOTH ILLEGAL:
Kamlesh Pattni’s handover of the Grand Regency Hotel and the subsequent settlement of the civil cases against him are both based on these two illegal provisions. Mars Group Kenya complained about this and the Kenya National Commission on Human Rights adopted our complaint in letters to the Attorney General which state the facts as follows: there are laws on our books which were not properly enacted by Parliament as required by the Constitution of Kenya. These laws should be struck off as the Constitution does not allow any institution other than Parliament to amend our Acts of Parliament.
Incredibly since December 2007, the Attorney General has not responded to the Kenya National Commission on Human Rights. The question is why won’t the Attorney General respond to these letters? Is he unconcerned?
As to the sale of the Grand Regency Hotel to the Libyan Arab African Investments Company which has been confirmed by Finance Minister Kimunya at a price of Ksh 2.9 billion, the evidence will show that this hotel was worth Ksh 2.5 billion way back in 1994. Who conducted the valuation of the Grand Regency Hotel in 2008? Valuations are required before any public asset can be privatized, and the Minister of Finance knows this. What role, if any, has the Privatisation Commission played in this sale?
The Libyan role in this transaction is something our Parliament should investigate. They have been in the shadows for at least a year. In the early drafts of the Pattni settlement (allegedly drawn last year by Wetang’ula, Adan, Makokha & Company) it is apparent that the plot by Kamlesh Pattni and the Kenya Anti Corruption Commission to “handover” the Grand Regency Hotel was hatched only to allow the Central Bank’s plan to sell to an identified Libyan company. In June 2007, then Trade & Industry Minister Mukhisa Kituyi said “I cannot release details regarding the interest expressed by Libyans to purchase Grand Regency. The hotel is under receivership and any interested buyer should speak with the Central Bank, who is the official receiver.”
Kenyans should know that everything we have seen this year, from the April “Handover Ceremony” at the Grand Regency has been choreography to regulate illegal acts. Kenyans should know that we have been duped again by the Kenya Anti Corruption Commission which touts the recovery of the Grand Regency Hotel as its greatest ever gift to Kenyans – and the 6th greatest asset recovery in the history of the world. Our position is actually rather bleaker, and the KACC Director knows it. After spending over Ksh 5 billion funding the KACC these past 4 years, Kenyans need to know that their Government has effectively allowed the abandoning of the case against the architect of Goldenberg; allowed the shot-gun sale of a substantial asset for a song in breach of our privatization laws; and to add insult to injury has evinced absolutely no intention to recover anymore of the Ksh 158 billion that was stolen from us by Goldenberg International Limited and its official accomplices. Worse there is every reason to expect that the Anglo Leasing scandal which cost us Ksh 56.33 billion according to the Controller and Auditor General is to be dispensed with shortly using the same modus operandi.
Kenyans also need to know that it is exactly 691 days since Attorney General Amos Wako directed the Director of Public Prosecutions to file an appeal against the court judgement which immunized George Saitoti, now the Minister for Internal Security, from prosecution for criminal offences on the basis of the Goldenberg Commission of Inquiry Report. The Minister for Internal Security is the political head of the Criminal Investigations Department which was instructed by the Attorney General to follow up the Goldenberg Commission of Inquiry with investigations of those adversely named.
The cycle of impunity that allows public officers to act as if Kenya is a nation without law must be broken.
The sale of the Grand Regency Hotel is really a resignation issue for Amos Wako (the Attorney General), Amos Kimunya (the Minister of Finance), Aaron Ringera (the Director of the Kenya Anti Corruption Commission) and Njuguna Ndungu (the Governor of the Central Bank of Kenya). If these public officers won’t resign, let’s demand their immediate investigation and sacking. Finally, all public officers adversely named in reports of the Kenya Anti Corruption Commission, Judicial proceedings, and reports of the Parliamentary Watchdog committees about the Goldenberg affair must immediately stand interdicted if there is to be any justice in Kenya. Demand accountability and end impunity now.
Mwalimu Mati