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.

The MPs’ Salaries Case: A Triumph for Constitutional Supremacy in Kenya

Gado on MPs Salary Raise

“Parliamentarians are expected to operate within the letter and the spirit of the Constitution. Parliament, like all other state organs, is not above the law. Members of the National Assembly, like all other state officers, and the National Assembly, like all other state organs are compelled by the Constitution to adhere to the national values and principles of governance found in Article 10 of the Constitution. We therefore agree with the petitioners that the resolution by the National Assembly to nullify the Gazette Notices published by the SRC was unconstitutional.” – Judgment in Petition No. 227 of 2013 at paragraph 82.

The above judgment by a three-judge bench sitting at the High Court at Nairobi is significant for two distinct yet connected reasons: firstly, it is a big win for the doctrine of constitutional supremacy against the doctrine of parliamentary sovereignty and secondly, it restores much-needed public trust in the ability of the Judiciary to dispense justice. A copy of this landmark judgment is available here.

In the recent past, there have been several spirited public campaigns against members of parliament (MPs) whom many registered voters feel have gone rogue by putting their narrow private interests above those of the electorate that put them in public office. The climax of this perceived parliamentary impunity came in May 2013 when the National Assembly (NA) wrote to the Salaries and Remunerations Commission (SRC) purporting to nullify the remuneration of various categories of state officers which the SRC had published in the Kenya Gazette.

Continue reading

Fallacies of Equality and Inequality: Will Our Rights Lie in Limbo At the Pleasure of the State?

ALL MEN CREATED EQUAL

“…Having celebrated the repeal of Kenya’s older Constitution that legitimated discrimination in the areas of adoption, marriage, divorce, burial, devolution of property on death and personal law, I expected that the new constitutional dispensation would make the quest for equality and non-discrimination on the grounds of sex easier. However, in the short period that the Constitution has been in operation, the fallacies of the constitutionally entrenched principle of gender equality have become apparent in the areas of political representation and appointments to offices.” – Prof. Patricia Kameri Mbote, SC., 24th January 2013.

Kenya’s new constitutional dispensation is a radical departure from the old order and therefore it must be expected that there will be resistance to admission of new entrants by those so-called gate-keepers currently enjoying rights. My argument back then and now is that the task of implementation of the Constitution, by and large, remains in the hands of certain bureaucrats bent on exploiting society’s inherent inequalities and exclusions for their own selfish gains. Therefore, even where the supreme law steps in to try and redress these inherent incongruences, its success is wholly dependent on implementation. Herein lies, what Prof. Kameri Mbote terms, a “discernible chiasmus in the practical application of equality and non-discrimination which results in discrimination”.

In previous posts here and here, I have tried to shed light on the centrality and importance of the Equality and Non-Discrimination provision in the Constitution. In this connection, I concur fully with those that lay sharp emphasis on the role of the judiciary as the guardian of constitutional norms and values as well as being the primary institution charged to breathe life into the Constitution through interpretation.

Sitting in a packed auditorium listening to Prof. Kameri-Mbote giving her Inaugural Lecture, I couldn’t help but wonder whether our judiciary so far has been performing its crucial role as vanguard of equality and non-discrimination which includes demanding fidelity to the Constitution by the executive, the legislature and the public.
Continue reading

Website of The Year: Sonko.co.ke

I pity anyone who is designing a website for a politician.

Actually I pity anyone designing anything on the internet at all this year because the team behind Mike Sonko just put a wrap and a bow on anything web related for 2013.

IT’S A WRAP. BOW DOWN.

Ladies and gentlemen, I am aware it is January, but I doubt it will get any better than this, this year. The award for website of the year goes to Sonko.co.ke.

sonkosite1

3 words to describe this feat of technical mastery: So. Much. Swag. Continue reading

“So They Didn’t Kill Them?”

Ed: It might help to read: “They killed them?” first

It’s funny how things pan out, isn’t it?

I had called John as we left my mothers apartment building and told him to come pick us up from the road outside. Even he seemed confused as to why I would wait for him outside. The thing is, we needed to go to the shop right outside to buy pesticides and some other item I forget so it only made sense. By the time we got down and had purchased the goods, he would be there. Or so we thought.

We had to wait a few minutes. Couldn’t have possibly been 10 minutes but a lot can happen in 10 minutes. A lot can happen in 2 minutes in fact; and I’ll give you an example. In two minutes, a motorcycle with 3 young men on it can ride by you. The man behind the handles can pull out a duct taped pistol (looked like a 9mm) as two others begin to offload you of…well, everything. They can get in your pockets and that of the lady behind you and pick everything they can carry off you. Then they can ride off and leave you destitute. Then you will remember every smart idea you had two minutes earlier for two minutes afterwards.

Continue reading

Mob Justice in School Uniform

Now.., if Ferdinand Waititu slept in his bed last night, and not in a police cell, there’s something wrong with our police force. Far as any blind person could hear, disHonourable Waitutu’s remarks yesterday should be deemed as incitement to ethnic hatred. If anyone should argue otherwise, then please explain why the public reacted as they did – targeting their perceived anger stupidity at the Maasai community living in Kayole.

Perhaps the police standing next to the MP are both blind and deaf. Or like their seniors, they are afraid of going to the Hague. Perhaps, like his seniors Kayole’s OCPD is waiting for a cabinet directive to do his job. If a cabinet directive is not forthcoming, well then Mr Waititu may sleep in his warm bed tonight.

A few questions if I may:

  1. Now that Waititu was caught on camera saying Maasai’s be flushed out of Kayole, or that unspecified area of Kayole, would it be wrong for the Maasai in say Kajiado, to flush out other communities living there, if only to avenge the humiliation and ethnic targeting their brothers underwent yesterday in Kayole?
  2. If that were the case, would the police move in to deal with the situation in Kajiado or would they stand by and enjoy the (if you want, call it small) ethnic violence they overlooked oversaw in Kayole?
  3. How is it that the police did not arrest any of the people that took part in the mob justice and looting and instead only arrested those alleged to have been involved in the killing of the alleged chicken thief/ garbage collector?
  4. Finally, why didn’t the police arrest Hon. Waititu?

But if you think Waititu is the problem, then think again.

Go back to the clip and watch the kids taking part in the looting and mob justice. Look at the ones looting charcoal. Think for a minute. Why would kids loot charcoal? Where does charcoal rank in a child’s order of thinking? To me – no where. The way I see it, someone sent those kids to steal. Someone who would benefit from the charcoal. Someone like a parent.

Back to the clip again to time stamp 0.04. Watch as a young girl in school uniform viciously hurls a rock at a Maasai man, proud to be taking part in what she probably thinks is “adult-like” behavior. Where did this girl learn to mob people? Who is her mother? Who is her father? Who is her neighbor? Did any one of the adults in the crowd report her to her parents?

Who is her mentor?

See, Waititu isn’t the problem. He’s an aging man. Soon, he’ll be gone and forgotten, hoping of course he doesn’t end up being governor of this Maasai land called Nairobi.

But the girl in school uniform, who is barely 15, is the problem. She is the problem because she is the future. She could be the future that will form a third or two-thirds of parliament. Otherwise, she will be the future voter.

If at her tender age she can be so incited as to hurt a fellow human being – an adult for that matter- what does that mean for her and the rest of her peers who are yet to attain a voter’s card? Most importantly what does that say about us – her parents, her siblings, her neighbours, her teachers, the police officers who watched her, the viewers who only saw Waititu in the clip and not her?

More importantly, what does this imply about the state of the country just five months to the elections? Didn’t we learn anything from the post election violence of 2007/8? Didn’t we learn anything from being incited by politicians? Didn’t we learn anything about tribalism and ethnic violence? Didn’t we learn at least one lesson that we should have taught our children by now?