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

gado cartoon amicus corruptiae mortician AG Githu

“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.

Kenya Won

kenyan voting

After many hours spent in queues trying to vote, clenching cheeks in unison, and shaking fists at the IEBC, Kenyans finally got a new president. The opposition did not accept this result. Kenyans however, did, as some celebrated, some waited for the court hearings and the rest were just happy to be back at work. We did what we did peacefully and force fed foreign journalists naysayers their own feet.

I’m in that group that’s just happy to be at work because I believe the true victor was not a person.

It was the people. Continue reading

#2013Elections: Debatable Debates, Small Steps and Big Dreams

Did anyone manage to watch the Kisumu Gubernatorial debates a few nights back?

I eavesdropped from the kitchen for a while before deciding they weren’t worth me relocating to the living room. But I listened.

It was basically a bunch of candidates who don’t know how to answer questions making outlandish statements. At some point, one guy, whose agenda was that Kisumu county can produce its own food and be self-sustaining, was asked a question about education and why so few children complete school, perform well and something about the quality of education they get anyway.

He replied that the problem was that children were hungry and as a result they couldn’t do well. Seriously, he said that. Not overcrowded classes, underfunded schools, underpaid teachers, obsolete teaching methods but food. This is akin to answering the question “Why is smoking dangerous?” with “Cocaine kills.”

This made me wonder about what we were to expect from the upcoming Presidential debates.

My mother watched those debates and while she had criticisms, she let out a huge sigh of relief and said “This is a step forward.” before stepping away.

And the Presidential Debate is an even greater step forward.

It has much more potential than the he said she said campaigns of yesteryears. Now we get to see if these guys will really poke each other in the eyes when the distance is reduced to a few meters. I’d like to say that we’ll finally get to hear their policies and plans, more about their parties and manifestos, but something tells me we will mainly hear lies.

And that’s IF we pay attention.

A few weeks back, the Presidential debates were announced and the Kenyan interwebs began their own debat on who should moderate the debates. Frustrated, I joked that we should have debates to see who should moderate the debates but would probably end up debating who should moderate that debate. The point I was making was that it didn’t matter who would moderate or what was being debated if we were still bickering among ourselves instead of discussing issues. The problem, oddly enough, seemed to be us.

How does one choose a Saint from the pulpits of Hell based solely on what comes out of mouths so accustomed to lies and hypocrisy, while we’re still debating the moderator, the only person that we shall not be casting a vote for? Continue reading

Wangari Maathai, Charity Ngilu, Martha Karua: Political Moments and the Legacies of ‘Mama’

“Leadership is not simply a matter of filling the top positions in a government. Nor is it a quality restricted to the ambitious, the elite, the politically gifted, or the highly educated. Indeed, not every person in a leadership position is truly a leader” – Wangari Maathai, ‘The Challenge For Africa’ (2009).

A good place to start would be the 1997 General Elections. Charity Ngilu, who was already a household name after capturing the Kitui central in Kenya’s first ever multiparty elections held in 1992, announced that she would be running for the presidency on a Social Democratic Party (SDP) ticket. “Ma saa na Ngilu”, for those who remember. We all cheered for this gallant politician who arrested our imagination when she stormed out of Mwai Kibaki’s Democratic Party (DP) and boldly struck out for the country’s top job despite a relatively short career in politics. And then, several months to the election, Wangari Maathai, too, announced that she was vying for the top job. The results? Moi won, of course. Kibaki came second, Raila, third and Ngilu managed a respectable 5th place, one notch higher than the late Martin Shikuku. As for Maathai, she came third from last in those elections with 0.07% of total votes cast.

With today’s news that Charity Ngilu will be seeking the presidency in the 2013 General Elections, one cannot help but feel that history is somewhat repeating itself. Martha Karua, the proverbial long-distance runner, launched her presidential bid a couple of years ago, and has been on the campaign trail ever since. Now Karua has company in the form of ‘Mama Rainbow’. It may be political naivete to ask, but would anyone serious about campaigning for the presidency launch a bid with only five months to the polls? Prior to her campaign announcement, wasn’t she on record that she would support Raila’s presidential ambitions? These questions may seem to you, rhetoric or a display of my ignorance, but allow me to continue.

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“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

The Week That Was: Interesting Tidbits…

Here’s a quick recap of recent developments:

Latest on the Constitutional Amendment debate

“The incumbency has lost the power of deciding an election date. Now they want to get it back just one more time through the back door.” – Martha Karua, MP & Presidential Aspirant in 2012 Elections.

The Speaker of the National Assembly ruled that the Cabinet (through the Justice and Constitutional Affairs Minister) was within the provisions of the Constitution and Parliament’s Standing Orders to table the Constitutional Amendment Bill which seeks to change the general election date from August to December 2012. This Bill has already been tabled for the First Reading in Parliament.

Since Cabinet’s “logistical reasons” excuse for having Elections in December instead of August has failed to hold sway with us, they’ve now crafted a new reason. Listen to this:
“The Cabinet decided to seek a constitutional amendment to hold the elections in December because President Kibaki’s term expires on December 30, 2012. If the elections are held before that date, the country will not have a President and Commander-in-Chief because, legally, the President’s term would have expired.”

Meanwhile, Prof. Mutua in his weekly “Letter from New York” expresses a real fear that the on-going war against Al-Shabaab could be used to postpone the 2012 elections. He concludes by saying that Kenya’s war against Al-Shabaab is necessary and that’s why Kenya may have to postpone elections if necessary.

With due respect, any attempt to push General Elections to 2013 by invoking the President’s “unexpired term” or “national security” must be rejected in the strongest possible terms. We are aware that MPs, Permanent Secretaries and other high-ranking government officials whose Terms of Office, by and large, are tied to the Elections date would be more than happy to have elections in December 2012 or March 2013 or even much later. But what about the People of Kenya? All the People want is a peaceful, free and fair election – preferably sooner than later, yes?

Evictees awarded over 200 million shillings as damages for violation of their rights

“…The evictions were then supposed to be carried out in a manner that respected human dignity, right to life and the security of the affected…” – Muchelule, J., High Court.

In the case of Ibrahim Sangor Osman & 1,122 others v The Minister of State for Provincial Administration and Internal Security & 10 others [2011], Justice Muchelule sitting in the High Court at Embu has awarded a global sum of Kshs. 224,600,000/= to 1,123 ‘Medina Evictees’ as damages following their eviction from unalienated public land within the jurisdiction of the Municipal Council of Garissa. The court also declared that the petitioners’ fundamental rights as outlined in their petition had been violated by virtue of the eviction from the alleged public land and the consequential demolition of property by the respondents. Read the full case here.

As the dust settles on the Syokimau demolitions, we heard the news of the residents living adjacent to the Eastleigh Air Force Base, who had their flats demolished, to their utter shock and disbelief. It is hoped that this positive outcome from the halls of justice can be relied up by the residents of both Syokimau and Eastleigh as they explore options for legal redress from the State.

Speaking of legal redress…

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