Between an anvil and a hammer

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By Alpha Femi

Ethics and Anti-Corruption Commission boss Mumo Matemu is a man under siege. And the question on everyone’s mind is how he will redeem himself and the fast fading image of the once-hunting institution turned hunted.

A petition to the National Assembly seeking his removal from office alongside his deputy Irene Keino was the latest in a series of hurdles the anti-graft agency chief must contain and, at the same time, satisfy public thirst for the prosecution of individuals responsible for plundering taxpayers’ money.

To say that Matemu’s every move and action is being monitored by the Executive, Parliament, the Judiciary, the public, and the media is an understatement; everyone, including the lords of corruption, is literally waiting for him to expose his jugular. The lords of corruption must be celebrating the turn of events at EACC.

 Matemu’s woes are compounded by the recent infighting at Integrity Centre that saw him get overruled by the commission CEO Halakhe Waqo for sacking deputy CEO in-charge of Operations Michael Mubea. That single incident opened a can of worms in a strange but not surprising turn of events that exposed to public the rot at the institution mandated to fight graft.

All the intrigues, side shows and power fights do not need second guessing. Rather, they beg the only sensible question at the moment: has the country got the right man to lead the war against corruption?

Perhaps Matemu is living the words of one of his predecessors, retired Judge Aaron Ringera who, in 2006, at a particularly difficult time of his tenure as director of the defunct Kenya Anti-Corruption Commission (KACC) remarked that “the director lives between the hammer of his friends and the anvil of his opponents”.

The open rivalry by EACC officials has further dampened the little confidence Kenyans have in the commission – a November 2013 research showed that majority of Kenyans believe the commission is ineffective in carrying out its mandate.

The survey showed that 51.8 per cent of Kenyans felt the anti-graft body is not doing enough, especially with the unabated corruption, political interference, few and far apart prosecutions, inaccessibility to EACC offices and slow pace of investigating corruption cases.

So, where did the rain start beating the man in whose hands and leadership Kenyans have entrusted the fight against corruption which is bedevilling every fabric of the entire nation?

First, it must be appreciated that Matemu is in office courtesy of a Court of Appeal judgment which flatly rejected a ruling by the High Court that he is not fit for to serve, on grounds of wanting integrity.

High Court Judges Mumbi Ngugi, Joel Ngugi and George Odunga in 2012 nullified Matemu’s appointment on grounds that he had been implicated in shady transactions while working as a legal officer at the Agricultural Finance Corporation.

According to the judges, the National Assembly and the president failed to ensure due process was followed in his appointment and that it was evident they gave lip service or no consideration at all to the questions of his integrity and suitability to hold public office, more so the EACC top job.

The suit had been filed by the Trusted Society of Human Rights Alliance claiming that Matemu was involved in misappropriation of nearly Sh40 million belonging to the corporation.

After almost a year, Appellate Judges Kihara Kariuki, William Ouko, Patrick Kiage, Agnes Murgor and Gatembu Kairu ruled that the evidence placed before the High Court as the basis for integrity claims against Matemu were insufficient, inconclusive and lacked verification.

“The court cannot be at liberty to arrive at a finding which is not supported by any law. We have reviewed the High Court judgment and come to the conclusion that it has so many shortfalls that cannot allow it to stand,” said the judges.

 

Not in the clear yet 

On Matemu’s suitability to head the EACC amid claims that he misappropriated funds, the judges ruled that there was no evidence to prove he was directly involved in the loss of the funds, that a report by the criminal investigations department had not implicated him in the fraud, and that his name does not appear in any document used to transfer the funds.

The five judges went ahead to set aside the High Court judgment, a decision that marked the tumultuous reign of Matemu at Integrity Centre.

He is, however, not out of the woods yet on the question of his integrity, as his fate still lies in the hands of the Supreme Court which is hearing the appeal by the civil society group against the Court of Appeal decision.

Although the case at the Supreme Court might look like a fraction of troubles  Matemu must keep an eye on, its determination will be of great significant since it can hound him out of office altogether if the judges rule that he is unfit to hold public office.

Then came a whistle-blower’s report in July 2014, which alleged immorality and corruption at the watchdog.

The anonymous letter was written to Law Society of Kenya, with copies to the African Centre for Open Governance (Africog), the Kenya National Commission on Human Rights, Muslims for Human Rights (Muhuri), National Intelligence Service (NIS), the media, Parliament and the Commission on Administrative Justice (Ombudsman).

EACC confirmed receiving the letter, and said it was investigating the allegations but no findings have ever been made public. 

The letter had alleged that some commissioners had pocketed millions of shillings from suspects under investigations to shield them from prosecution.

Within the same period, Matemu and the commission had to deal with a Sh600 million suit for compensation by eight former employees who claimed that they had been unfairly sacked to stop them from questioning illegal activities at the commission, including skewed recruitment.

Matemu, being the boss, should have come out on the allegations and cleared the image of EACC, but he chose to do nothing about it.

Pressure from politicians and the Executive is an obvious ingredient to deal with for any person who holds an influential office that can make or break the two institutions. Matemu is no exception and has been a hostage of political and executive shenanigans.

After the controversial and acrimonious passage of the Security Laws which saw MPs fight openly in Parliament, Matemu was the first to cast his fishing rod, declaring that the EACC would initiate investigations with a view of punishing MPs involved in the house chaos. 

What did he get? A belittling response from leader of majority Aden Duale, who told him off, and advised him to concentrate on investigating economic crimes instead of trying to interfere with Parliament’s independence. Other law makers joined the fray to bash Matemu, accusing him of trying to take them to court in the interest of making them look bad – and even lose their seats – instead of dealing with economic crimes.

Matemu and the EACC have the power, and are sanctioned by law, to investigate the integrity of public office holders and should have not shied away from enforcing Chapter Six of the Constitution. He should have not back-peddled in the mist of political backlash as it showed signs of cowardice and the level of political pressure he has to contend with. 

The Executive too has not laid a bed of roses for Matemu. Despite several allegations of economic crimes against top government officials, the public is yet to see anybody charged with committing an economic crime.

 

Executive pressure

In March last year, then acting Director of Immigration Jane Waikenda complained to the Head of Public Service Joseph Kinyua over the conduct of anti-corruption officials in investigating irregular issuance of work permits to foreigners. Ms Waikenda complained that EACC investigators had tried to blackmail her to save her from prosecution. Whether the allegation was true or not has not been proven, but this also goes on to show the level of Executive pressure with which Matemu must contend in the course of his work at Integrity Centre.

Members of the public have a legitimate expectation that an institution funded by their money must yield results. It has been years since the anti-graft body was formed and the public is still waiting for the first serious conviction.

Although the agency is non-profit company, the profit people want to see is aggressive investigation intended to recover looted public resources. Charging people in court with no conviction will not appease a people so overburdened by the ghosts of economic crimes since independence, especially with the existence of laws which allows the commission to recover the stolen loot.

 Matemu has, on several occasions, been accused of inaction and the slow pace of investigations not only from the public but also from the Judiciary. The man has been under pressure to conclude several investigations, including the allegations of corruption levelled against former Judiciary chief registrar Gladys Shollei.

The Judicial Service Commission wrote to Matemu in December last year, seeking a disclosure of investigations into the alleged misappropriation of funds by Ms Shollei. More than once, the JSC has expressed its displeasure that no action has been taken to date.

In fact, Chief Justice Willy Mutunga himself wrote to Matemu asking for the investigations and forwarded to him a report of the Judiciary’s disciplinary proceedings after allegations of impropriety were made against Shollei.

It is the kind of let down the public feels is unforgivable on the part of EACC –Matemu has failed to deal with graft. And the phrase “we require more time to conclude investigations” is tired.

 

If he weathers the storm, then it will be for Matemu to steer the sinking boat that is EACC out of the tide, and bring back public confidence to the institution. 

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