”Well, he’s damned if he does, and damned if he doesn’t,” says leading Kenyan lawyer Albert Mumma of the dilemma that may shortly face President Mwai Kibaki: whether to prosecute former head of state Daniel arap Moi in connection with the Goldenberg scandal.
For the past two years, a presidential commission has probed the dealings of the company at the heart of this corruption scam — Goldenberg International, established in 1990 by Kenyan businessman Kamlesh Pattni.
The inquiry heard that Pattni, in collusion with Moi and other senior officials in the Kenya African National Union (Kanu), had looted government coffers by giving false declarations of diamond and gold exports.
This enabled Pattni and his associates to make fraudulent claims for incentive bonuses instituted to reward those who earned Kenya foreign exchange through exports. The loss to the government in this scheme has variously been put at between $600-million and about $1,3-billion.
Goldenberg International’s founder testified that he secured Moi’s cooperation in the scam by paying the former president an initial cash bribe of just more than $65 000. However, Moi — who refused to testify at the hearings — has denied being party to the fraud.
The commission wrapped up its work earlier this month and is now in the process of compiling a report that will make recommendations on how justice can best be served in the Goldenberg matter.
”The president will wait to see what’s in the report, and will then instruct the attorney general to either prosecute or pardon those alleged to have been involved in the fraud,” said government spokesperson Alfred Mutua. ”It is unwise at this stage to speculate about who the president will recommend for prosecution or pardon.”
But, with so much hanging on Kibaki’s eventual decision, speculation is rife.
”It is dangerous to comment before the commission’s report [is released], but can you imagine what will happen in this country if the government decides to humiliate Mr Moi in court, like a common criminal? … There will be chaos. People will die to protect Mr Moi’s dignity,” said a senior Kanu member, speaking on condition of anonymity.
The new ruling party, Kibaki’s National Rainbow Coalition, should ”prepare for repercussions” should the president order that Moi be prosecuted for his alleged role in the Goldenberg scam, the party official noted.
Assistant Minister of Justice Robinson Githae also appeared to sound a cautionary note about trying Moi, if only because this would set a precedent that might return to haunt his own party.
”The way Moi is treated [in the Goldenberg matter] is the way future presidents will be treated once they are retired,” he said recently.
Even some of those who once counted themselves among Moi’s implacable enemies have spoken out against putting the former leader on trial. Catholic Archbishop Ndingi a’Nzeki was quoted in a local newspaper as saying that retired presidents deserve some measure of protection from punishment for mistakes they made while in office.
Still others are reluctant to take the former president to task in the wake of his decision to hand over power peacefully after 24 years of often dictatorial rule.
People like Matt Karanja see the situation differently, however.
”Seeking to hold the former president accountable for past actions is not meant to humiliate him, but to make sure that future presidents will respect the law,” the Nairobi-based lawyer said. ”If Moi is given blanket amnesty for his alleged breaking of the law, then future presidents can simply break the law with impunity.”
Fight against graft
Failure to pursue Moi might also be perceived as a further regression by Kenya in the fight against graft.
While Kibaki came to power at the end of 2002 on an anti-corruption ticket, Nairobi has been severely criticised over recent months for its alleged failure to stop the continued theft of government money.
Earlier this month, Britain’s High Commissioner to Kenya, Edward Clay, said he had notified officials of 20 instances of possible graft through fraudulent contracts and dubious procurements. For its part, the United States suspended about $2,5-million in aid that was destined to bolster anti-corruption efforts.
John Githongo, Permanent Secretary for Governance and Ethics — and the government’s point man in the fight against graft — also resigned this month. He is now said to be in hiding in Britain, apparently because of fears that his investigations into corruption have made him a target.
A source involved in the Goldenberg inquiry said Kibaki is likely to recommend ”a full-scale effort” to recover the funds looted in the course of the Goldenberg scam rather than opt for ”a narrow focus on prosecutions of certain individuals”.
The ministry of finance has already secured the services of Kroll Associates, an international firm of forensic investigators based in the United Kingdom, to trace money pilfered during the scam — and in the course of other cases of corruption.
”So far, we have found 80-billion [Kenya shillings, about $1-billion] in bank accounts in Europe, and those accounts are now frozen … We are negotiating with various governments to return the funds to Kenya so that we don’t have to go through long court battles,” a finance official said in an interview.
”Key players in the former government bought real estate throughout Europe and especially in South Africa … These people made large investments across the world, in things like hotels,” the official added. ”But it will be impossible to get all, or even most, of the Goldenberg money back. We are talking here of thousands of millions of dollars, spread out all over the globe.”
Kibaki’s government believes that almost $4-billion in government money was misappropriated in the late 1980s and the 1990s.
Said another source, who also requested anonymity: ”We believe the money is hidden in bank accounts in Switzerland, the UK, Austria, Belgium and Italy … Some of this money is Goldenberg-related, yes.”
”The UN [United Nations] will also help us to get back billions of dollars that left the country during the 1990s,” the source added.
But will the pleasure of recovering these funds convince Kenyans that those accused of stealing the money shouldn’t spend time in the dock? — IPS