Crisis at EACC: Will it survive?

Fate of besieged the commission lies in the hands of Parliament

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By Hedwig Matano

The Ethics and Anti-Corruption Commission (EACC) is desperately fighting for survival in the wake of damning corruption allegations levelled against its top brass, supremacy wars between commissioners and the secretariat and poor funding from government.

At the heart of the woes bedevilling the anti-corruption body are a Sh2.6 billion bribe to top officials, and an attempted out-of-court deal to save one of the masterminds of the Anglo leasing scandal.

Also playing out are reports that several commissioners and members of the secretariat are on an extortion spree from would-be corruption suspects to “sit on” investigation files, raising serious questions about the commission’s commitment to the fight against corruption, and the rationale of its continued funding.

As we went to press, the commission’s chairperson Mumo Matemu and his deputy, Irene Keino, were facing serious integrity questions after a private citizen lodged a petition in the National Assembly calling for their removal from office.

In the petition, the citizen, one Oriaro Geoffrey, fingered Matemu and Keino for engaging in actions that undermine the very fight against corruption they are expected to spearhead.

Parliament’s Justice and Legal Affairs committee will scrutinise the petition and table a report to Parliament within fourteen days. The MPs will have ten days to discuss the committee’s report and vote on whether or not to petition the President to appoint a tribunal to investigate the charges levelled against Mr Matemu and Ms Keino, effectively setting the stage for their eventual dismissal.

Separately, the conduct of top EACC commissioners and members of the Secretariat is the subject of serious investigations by the Commission on Administrative Justice chaired by lawyer Otiende Amolo.

Sources at the Commission intimate that the investigations which commenced late last year and touch on the conduct of top EACC officials were in the final stages, and the report would be made public shortly.

Under investigation
The investigations stem from a complaint lodged before the Ombudsman last year and copied to key institutions, including the office of the Director of Public Prosecutions, accusing top EACC officials of engaging in grand corruption and dubious out-of-court settlements for kickbacks. The petition, said to have been compiled by an EACC insider accuses Matemu of incompetence.

“Managers and commissioners of the institution are no different from the robbers who raid graves to recover coffins for sale,” the petition, dated May last year, reads in part.
The petition also point a finger at deputy Chief Executive Officer Michael Mubea for his role in engineering an out-of-court settlement agreement with former Mombasa Kanu operative Rashid Sajjad after a protracted legal battle over landholdings.

In March last year, Sajjad handed back 18 title deeds of public plots acquired irregularly, including recreational parks and a clinic.

It is not the first time top EACC officials are being accused of engaging in out-of-court deals with corruption lords in exchange for bribes running into millions of shillings. Investigations indicate that the anti-corruption commission is split down the middle over the decision to hand the file on suspected Anglo Leasing mastermind Deepak Kamani to the Director of Public Prosecutions with a recommendation to arraign him in court at a time a section of top EACC officials were working on an out-of court deal.

EACC’s rather dismal record in the fight against corruption has not helped matters much. By its own admission, the anti-corruption watchdog has managed to secure only three convictions for corruption related charges since 2012, an embarrassing record in a country where grand corruption has become a way of life, and the shortest and surest way to riches, fame and power.

Excuse after excuse
In its latest report to the parliamentary committee on Justice and Legal Affairs submitted on February 10 this year, EACC chair Matemu admits that the commission has only managed to jail three people on corruption related offences over the last three years, against a total of 9,465 reports on corruption.

This financial year alone, the commission received 2,108 reports on corruption in various government departments.

Although the EACC completed investigations of 381 cases in the past three years, only 22 cases have been finalised in court, including the three convictions. Although the commission has always been quick to shift blame to the office of the DPP for the failure to prosecute corruption related cases, insiders point fingers at top EACC officials who are in the business of cutting deals with corruption suspects to frustrate investigations and shield them from prosecution.

Senior investigators at the agency accuse a top commissioner of being on the payroll of corruption lords, whose files he continues to sit on while blaming the DPP’s office for failing to aid the war against corruption. “The files never leave this building (Integrity Centre); whenever we ask for progress, he accuses the DPP of refusing to prosecute the cases,” says an investigator.

Besides blaming the DPP’s office for inaction, Matemu also blames poor funding for the commission’s poor record in the fight against graft.

He maintains that funding to the commission has been dwindling with each passing financial year. For instance, the commission received Sh1.492 billion to fund its activities during the financial year 2011/2012, but this dropped to Sh1.451 billion the following financial year.

In 2013/2014, the amount was slashed further to Kshs1.045 billion. Only in 2014/2015 did the commission’s budget increase to Kshs1.8 billion.
“The Commission will not be able to effectively discharge its mandate as defined in law and as provided in its 2013-2018 Strategic Plan. Given the low funding, the
Commission will have to downscale its programmes, and generally its operations, to remain within the limited budgetary allocation, with an overall negative effect on National Commitment and effort to fight corruption,” Matemu warns in his report to the Parliamentary committee.

Already, the low funding has scuttled the commission’s plans to purchase seven floors on the newly constructed NSSF Parking Silo building adjacent to the NSSF building for Sh1.36 billion.

The commission had agreed in principal to buy the building from the National Social Security Fund (NSSF) only to learn that the National Treasury was unwilling to extend additional funds for the transaction to be effected.

Senate’s Standing Committee on Finance, Commerce and Budget chairman Billow Kerrow says EACC was allegedly unwilling to effectively carry out its mandate as stipulated in the constitution, and therefore the need for its disbandment to pave way for a new commission.

Addressing the press last month during a three day high level workshop for the committee at the Great Rift Valley Lodge in Naivasha, Kerrow, who is also the Mandera Senator, said that EACC’s image has been dented following allegations of graft, and that Kenyans no longer have faith in the institution.

Several other independent commissions attended the meeting that was skipped by EACC and the Directorate of Criminal Investigations (DCI) despite being invited. “The image of EACC is at stake and it’s time it was disbanded as Kenyans no longer have faith in it,” Kerrow said.

Also at the centre of this storm is a decision by Matemu to suspend deputy CEO, Operations, Michael Mubea, over what he termed as integrity issues. In suspending Mubea, Matemu who is a lawyer by profession, said he would be investigated for claims springing from detailed “intelligence briefings”. In a letter addressed to Mubea communicating his interdiction, Matemu instructed him to “hand over any matters/files that you are currently handling to the chairperson.”

“Intelligence reaching the commission has strongly suggested that there are integrity challenges surrounding the discharge of your duties as deputy secretary-technical services. Some of these challenges have resulted in ridicule to the commission and negative media publicity hence tainting its image,” Matemu had written.

However, Commission CEO Halakhe Waqo, in a hard-hitting letter to Matemu, argued he was not consulted in Mubea’s interdiction yet he is in charge of the day-to-day running of the commission.

“By copy of this letter, I am directing the officer to report on duty and continue with his work,” Waqo wrote. “Your letter dated 9th March 2015 which you handed to the above named officer (Mubea) in my presence, that of the Vice Chair Irene Keino and Commissioner Jane Onsongo and your subsequent memo to myself refers… As the CEO of the commission who receives all intelligence reports, I am not aware of any (such) intelligence reports. I am also surprised that any intelligence reports will bypass the CEO and come to you directly,” Waqo’s letter to Matemu read in part.

Waqo went on that a Special Commission meeting of March 9 that the chairman cited, did not discuss anything about Mubea and that he (Waqo) heard about the allegations against his deputy for the first time when Matemu raised them at his office.

“Mr Mubea’s work has been outstanding and clearly demonstrated in, among other projects, the Anglo Leasing investigations,” Waqo wrote.

Inquiries by Nairobi Law Monthly established the fallout stemmed from a decision by EACC to charge businessman Deepak Kamani for an Anglo Leasing related offence at a time when the secretariat had opened negotiations with the suspect to have an out-of-court settlement. A letter is dated November 4, 2014 from the law firm V A Nyamodi and Company Advocates on behalf of Mr Kamani’s firms, floated the idea of an out-of-court deal.

The following day November 5, Mubea responded in the affirmative and asked the lawyers to furnish EACC with details of their proposal. Lawyer P O Nyamodi wrote back to Mubea on November 7 stating: “We wish to thank you for your confirmation that you are in favour of an amicable settlement for the subject of companies and as such wish that my clients furnish a proposal for the way forward, as requested by you.”

The letter went on: “We have already informed our clients of the positive response from your side. We shall revert to you.” All the letters were only copied to the Director of Public Prosecution Keriako Tobiko. The Deputy CEO’s move to initiate a deal with Kamani is said to have infuriated the commissioners who demanded to know why they were excluded from the correspondence at a time when public pressure was growing over the handling of Anglo Leasing cases.

“This is an officer who was conducting a parallel exercise and excluding the commissioners when he knew well that the files had been forwarded to the DPP; this clearly amounts to insubordination,” another officer said at the time. However, Mubea argued a proposal to have the matter settled out of court was floated by the lawyers and that did not in any way interfere with the investigations. There were also claims files whose cases had been reported to the commission were not acted upon by the secretariat, which is in charge of investigations.

Following his suspension, a defiant Mubea had told Matemu that he had no legal mandate to either suspend or fire him.
“I have reported to work and, as you have seen, I am from the field on official duty. The law is clear on who should sack me. The CEO has told me to resume my duties,” Mubea had said. The 50-year-old said his track record at the EACC has been impressive and saw high-profile public figures arrested and prosecuted on his watch.

“My record speaks for itself. I want those accusing me of malpractices over ‘intelligence’ reports to table concrete evidence. So far, I have not been confronted with facts on what my wrongdoing is,” the father of three said.

As the deputy secretary, Mubea is in charge of the EACC’s entire operations, including the directorates of investigations, prevention and legal services.

Mubea, however, refuses to disclose details of the behind-closed-doors boardroom wars at the EACC that might have led to a falling out at the commission, saying he has a cordial working relationship with the secretariat and the commission.

The storm at Integrity Centre was allegedly triggered by this month’s prosecution of some of the Anglo Leasing suspects, amid reports that at least two high-voltage files have caused divisions on whether or not the suspects should be prosecuted.

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