Anglo Leasing Contracts: Law Society’s Case Against the Office of the Attorney General of Kenya

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“The man you see before you is the mortician. The patient died on the operating table a long time ago.” – The Hon. Attorney General, Prof. Githu Muigai, SC, on Anglo-Leasing cases.

Earlier this month, the Law Society of Kenya (LSK) went to the High Court of Kenya in the case of Law Society of Kenya v Cabinet Secretary Treasury & The Attorney General [2014] eKLR seeking conservatory orders restraining the Government of Kenya from making payments to Universal Satspace (North America) LLC pending hearing and determination of the LSK’s case against the Executive Branch. Many will recall that Universal Satspace is one of the entities involved in the now infamous Anglo Leasing Contracts under investigation by the Ethics and Anti-Corruption Commission (EACC). However, Majanja, J sitting in the High Court declined to grant the interim orders sought by LSK. In this ruling, the court defers to the Legislative Branch’s oversight authority over national revenue and expenditure.

Folks, there you have it: separation of powers at work!

This past week, the Executive Branch defended its decision to pay KES 1.4 Billion in one single payment to one single bank account to settle debts with respect to “security contracts” with two entities, Universal Satspace and First Mercantile Securities Corporation. The President, the Treasury and the AG have maintained that paying the colossal sum all at once was the only way the country could secure an urgently needed Euro bond or otherwise risk cutting back on government expenditure, service delivery and programmes for Kenyans.

In between time, LSK decided that it would take action against its members: P.105/1421/85, P.105/2913/95 and P.105/1434/85, also known as Prof. Githu Muigai, SC., Mr. Njee Muturi, the Solictor General and Ms. Muthoni Kimani, the Deputy Senior Solicitor General respectively. According to LSK, there are reasonable grounds to believe that the Muigai, Muturi and Kimani have acted in an unconstitutional, illegal and unprofessional manner and have conspired with the Executive Branch in dealing with the Anglo Leasing type contracts and in particular in the case between Universal Satspace and the Government of Kenya.

The following documents have been made public by LSK in support its case against the Office of the Attorney General:-

1. In a letter dated August 11, 2008, the Deputy Solicitor General Muthoni Kimani advised the Government’s Advocates’ not to advance the defence of bribery and corruption. LSK argues that Kimani did this despite reports by Kenya Anti-Corruption Commission (KACC), the Cabinet, Pricewaterhouse Coopers, Public Accounts Committee and the Auditor General to the effect that the contractual documents in the transaction were procured through corrupt practices and that Universal Satspace and First Mercantile had no permanent address. A copy of the letter is available here.

2. In further support of the point above, LSK has made public the request for Mutual Legal Assistance by KACC to the Swiss Federal Office of Justice and Police. In the request, KACC names 20 persons and companies under investigation. The request appears to conclude that the contracts were signed by corrupt Kenyan officials named in return for financial or other inducements. Earlier this year, the EACC confirmed in a letter to the Treasury and the Attorney General that it was still investigating the Anglo Leasing contracts. A copy of the request is available here. A copy of the EACC letter is available here.

3. LSK accuses the Attorney General of entering into an illegal consent in a case filed in Switzerland by First Mercantile Security Corporation. A copy of the judgment in the court of first instance in Geneva is available here.

4. LSK alleges that the government directed the Attorney General (vide Cabinet memo dated 30th September 2010) to engage foreign competent advocates with complex commercial litigation experience to defend the Anglo Leasing type contracts. In this connnection, LSK argues that the Attorney General acted contrary to these directions by frustrating Government lawyers. LSK further argues that the Attorney General appears to have withdrawn instructions in December 2013 from the foreign advocates and that his office unprocedurally took over the conduct of the case. In this connection, the Solicitor General Njee Muturi represented the country before a London Court in December 2013 without a licence to practice law in England and Wales. Therefore LSK argues that the Kenya Government effectively did not have legal representation in the suit and the proceedings are a nullity. A copy of letters sent in vain from government lawyers Edwin Coe, LLP is available here. A copy of the proceedings in the London court are available here.

5. LSK accuses the Office of the Attorney General of scaring the Government into make the Anglo Leasing payments by sending a letter informing Treasury of a threat of attachment of the Kenyan Embassy in Switzerland and the intended Sovereign Bond. A copy of this letter is available here.

6. LSK contends that during the meetings held on 28th March and 1st April 2014, the Office of Attorney General failed to advise the Government which led to the latter’s agreement to settle claims by First Mercantile Securities Corporation and Universal Satspace in one single payment by the end of the Month of April 2014. A copy of the Minutes of the meetings is available here. A copy of the Letters of Agreement between the Government of Kenya (signed by the Attorney General) and First Mercantile Securities Corporation and Universal Satspace is available here.

7. LSK accuses the Attorney General of giving a misleading legal opinion that the Government had no other legal option but to pay the Anglo Leasing contracts while an appeal option was and is still available. LSK argues that this failure by the Attorney General to pursue an available appeal was a dereliction of the AG’s constitutional mandate under Article 156 to protect and uphold the rule of law and defend public interest. A copy of the legal opinion is available here.

8. LSK contends that, on the strength of the Attorney General’s misleading opinion, the National Security Council directed the Cabinet Secretary for the National Treasury, the Cabinet Secretary for Foreign Affairs, the Cabinet Secretary for Defence and the Attorney General to devise a communication strategy for the undelivered Anglo Leasing contracts and Cost/Benefit Analysis of Anglo Leasing payments. These directions were communicated through a letter from the Secretary to the Cabinet. A copy of the letter is available here.

9. LSK further contends that, on the strength of the Attorney General’s misleading opinion, the Treasury wrote to the Director of Budget requesting the latter to grant credit to make the Anglo Leasing payments. In her response, the Director of Budget accepted the advice of the Attorney General but rightly requested Treasury to furnish proof of parliamentary approval to release funds from the Consolidated Fund. A copy of the letter from the Treasury is available here. A copy of the response from the Director of Budget is available here.

In view of the above, LSK has publicly stated that it intends to take the following action against the Attorney General, the Solicitor General and Senior Deputy Solicitor General for professional misconduct:-

(a) Ask them to Show Cause why a Certificate of Dishonour by LSK should not be issued to them.
(b) File suit to declare them unsuitable to hold office and surcharge them for any monies paid in the case.
(c) Strike off the Attorney General from the Roll of Senior Counsel.
(d) Ask the Hon Attorney General to vacate office by resigning pending further investigation in the matter.

In sum, the ball lies squarely in the court of the Attorney General’s Office to rebut the weighty allegations made against them by LSK. In a previous post here, we discussed the important role to be played by the then Attorney General nominee, Prof. Githu Muigai.

In the meantime, the Law Society remains one of the most powerful professional bodies in Kenya with its members serving as Heads of two Branches of Government, namely the Judiciary and the Legislature. In an earlier post here, we highlighted how LSK ‘disciplined’ the Speaker of National Assembly for acting contrary to the law in the MPs’ salaries case. Now it appears that LSK has turned its attention to the Executive Branch and in particular, its legal advisor, the Attorney General.

On Awkward Job Qualification Requirements

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If you survived the Kenyan education system, and by the aligning of a little known planet to the moon, found yourself some enslaving white-collar 9 to 5 thing, you are a hero. You will agree (now), that school wasn’t the difficult part. The goddamn-what-the-hell-kick-a-dying-cat part, was trying to get employed. In spite of all your qualifications,  skills, abilities and unnecessary hobbies, one thing or the other had you walking into a slamming door.

Maybe it was that politician’s son who got the job despite the fact that he didn’t even attend the interview. Or the fact that your father is, well.., a nobody. And we don’t exactly get to pick dads, or steer their ambitions.

But beyond the corruption and nepotism are other interesting factors that we never take into account, say when a company proudly states that they are an “equal opportunity employer.” To me, that simply means that they have separate toilets for men and women. Pretty cool.

See there are employers with special preferences. Like the kind that would rather hire single mothers? Perhaps they secretly think “she must be suffering so much, she’ll bend-over backwards to get the job done, and when she’s done she’ll jump hoops and a ring of fire. Coz single mothers work goddammit!” 

Or companies that prefer to hire married folks: Yeah, this is a very serious man/woman. This settling down thing requires one to buy diapers and pay school fees. Yup let’s give this guy the job! Single folks are not as serious as married folks.

There’s an old lady I knew who ran a toy store in the city. She could never keep an employee for 6 months and yet, whenever she asked for referrals, she would say “make sure the girl is not too smart.” According too her, smart employees make good thieves. She eventually closed down her business. I can’t imagine why.

Or my friend who owns a bar and prefers to hire single women because 1. their hips keep the men entertained 2. if they had to steal drinks, they can’t possibly milk the bar dry 3. the fact that they are single guarantees that there is no man somewhere complaining about his wife working all night or coming home late. As fate would have it: Single women can stay up all night and entertain men. No problem there.

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But we may go ahead and berate those employers when we ourselves have our biased employee qualification checklist. Don’t many women agree that ugly, single-mothers, from church-mice backgrounds, make the best house-helps?

NOTE: At this point by the way, if this single-mom thing sounds like a plan, by all means get knocked-up and ditch the guy. You never know.

Career advisers often tell us how best to design our  résumés and what not to wear to an interview – in essence, they’ll fit us into a little box we should hardly think outside of. While basic standards are important, we often forget that interviewers and employers are human and human beings will tend to be biased. For instance, which house-girl thinks of herself as ugly? Or who goes to school hoping to come out dumb and therefore deemed as “honest.” Personally, I once got a well-paying desk job simply because I helped my parents around the farm when I was younger. My employer wasn’t interested in my spruced up CV.

All in all, what does that say about job creation in our country? If we citizens are not exactly sure what works and what doesn’t and we have our own unprintable rules of what should, does the the government know exactly how to solve the youth unemployment problem in this country? And can we please stop telling kids that “ukisoma utapata kazi nzuri sana.” We all know that it doesn’t quite work that way. Can’t we instead link education to gaining common sense and building character rather than it being a lousy ticket to employment?

PS: I’m a big fan of Diego Buñuel‘s Nat Geo adventure show Don’t Tell My Mother. During his trip to Lahore, Pakistan, the (oh, so tall and handsome *fans self*) Diego encountered an entrepreneur who owns a chain of salons dedicated at employing girls who have suffered acid attacks leaving their faces completely disfigured – the acid having been thrown at them by their boyfriends, fathers or brothers. Some of these girls, having no prior hairdressing skills, are first treated and then trained by their employer, only to spend the rest of their lives behind a mirror (why, oh why?) making customers look beautiful. Sigh.., life.

Police, Peace and the Price of Freedom

This story may sound familiar to many of you.

The other day, a promising rapper was on matatu doing what promising rappers on matatus do: commuting.

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The matatu conductor, like 99% of workers in the not-necessarily-formal sector of transport, was not in uniform and the driver was probably being an idiot.

Speaking of idiots, there was also a cop somewhere in the mix. Continue reading

NHIF Fiasco: Constructive Tension, Individual Conscience and Access to Information under the Constitution

The nation continues to watch as the National Health Insurance Fund is embroiled in controversy over how a certain Clinix Healthcare Ltd received Sh202 million for treating civil servants, of which Sh91 million went to non-existent or ‘ghost’ clinics. Understandably, everyone is interested in knowing who are the directors and shareholders of Clinix Healthcare Ltd. However there is a larger issue that we must grapple with, that of responsibility. Responsibility here must be seen in two ways: collective and individual. Collective responsibility means that because of the actions of a greedy few within NHIF, both its Board and Management owe Kenyans Sh202 million. By extension, the government through NHIF’s parent ministry: Ministry of Medical Service is also responsible since it failed to regulate, supervise and monitor the goings-on at the embattled health parastatal.

But to many the more pivotal question is that of individual responsibility.

Continue reading

“WAGEUZI”, Raila & The New Kenyan Youth

There’s a very talented man out there by the name of Andrew Kaggia who created a very powerful 3D Animation by the name WAGEUZI. It’s a very new look at the battle between politicians for the votes of Kenyans. If you haven’t already, kindly take 13 minutes out of your day and watch it.

It made me think back to a conversation I had with a Poli Sci/IR professor earlier this week on the youth vote. It began with a discussion about all the things currently lacking in Kenya: fuel, gas, sugar, maize; commodities we know are there, but aren’t being sold. Continue reading

Surprise, Surprise. The Media’s Compromised.

I’ve never been one to care much for the media. I barely watch TV, and I only watch the news if there’s absolutely nothing else on or the internet isn’t working. Why? Because when I was very young I learned media houses were owned by various political entities. Shocked as I was, I remember my mother telling me this like it was just common knowledge. As I grew, I came to learn that it was. So how are we supposed to trust people who clearly have other interests? They’re all liars as far as I’m concerned; bake you a mud pie and tell you it’s chocolate fudge.

So I wasn’t surprised when a new tip got to me that a certain huge media house was involved in some shenanigans. The TV station in question had been running ads for an exposé Investigative Feature that brought to light the fact that the Kenyan government was recruiting Kenyan youths to the Somali National Army to go to Somalia and fight Al Shabaab. What supposedly happened next was that some super high ranking military bullies marched their way into this media house and put a halt on the show that was supposed to start yesterday. Continue reading