Stealing Kenyans' Skeletons, Raiding Graves

Suspended Local Government Permanent Secretary Mr Sammy Kirui.


THE PUBLIC RIP-OFF AT CITY HALL; THE FACTS, FICTION AND THEATRE


By Miguna Miguna, MARCH 10, 2010

In law, they call it an open and shut case. That’s what the rip-off surrounding the “purchase of land for cemetery by City Council of Nairobi” is. This is a fraud from the beginning to the end. Let me explain using credible primary evidence and chronologically demonstrate how this fraud was cooked and executed by senior public officers at the Treasury, Nairobi City Council and Ministry of Local Government.

A letter by then PS for Local Government, Sammy Kirui dated 25 June 2008 addressed to the former Town Clerk of Nairobi, John Gakuo, refer to various correspondence between the Nairobi City Council, the Ministry of Local Government and Treasury confirming that the “Government” had allocated funds for the fraudulent transaction. The letter notes that a meeting held at the Ministry headquarters and chaired by the Senior Deputy Secretary on 5 June 2008, stressed the need to “finalize” the transaction. By this date, no land had been identified or purchased. It is unclear how and why Sh 350 million of public funds was released by Treasury to Mr. Kirui.

On June 27, 2008, Mr. Kirui instructed that payment for the non-existent land be processed and Sh 350 million be paid out to unidentified people. The parcels of land identified for purchase were LR 23222, 23223, 23224, 23225, 23226, 23227, 23228, 23229 and 23230, measuring 75 acres to be purchased for use as cemetery. There is reference to a draft sale agreement between the City Council and some unnamed vendors.

Mr. Kirui directed payments on State Counsel E.N. Torome’s Memo dated 27 June 2008. The same day, the Principal Accountant at the Ministry, J.O. Warega, wrote to the Chief Accountant confirming that Mr. Kirui had “approved payment.” Mr. Warega instructed the Chief Accountant to prepare payment of Sh 289 million to E.N. Omotii & Company Advocates as “per the approval.” No indication why this large sum is being paid out. This happened before the land had been located and no Sale Agreement had been signed.

Mr. Kirui sent another letter to Mr. Gakuo on 8 September 2008 stating that “it is noted from your letter that identification of a suitable parcel of land for use as a cemetery through personal visits is not yielding results.” He directed that a paid advertisement be placed seeking appropriate land. Yet, payments were processed by Mr. Kirui more than six months before the required procurement conditions were met or appropriate land identified.

On 30 October, 2008, Mr. Kirui sent another letter to Mr. Gakuo stating that: “It is now 5 months since you initiated action on this matter and yet you have not concluded and advised the Ministry to effect payment. The continued holding of this payment is adversely affecting other financial transactions in the Ministry. From the date of this letter I want to get this matter concluded within a period of 5 days. At the expiry of this period the Ministry will take over the procurement process and proceed with the advertisement for the purchase of the land for the cemetery.”

The haste and desperation to conclude the fraud so as to cash the large public cheque is obvious from the contents of Mr. Kirui’s letter.

By letter dated 4 December 2008, Mr. Kirui says to Mr. Gakuo: “it is particularly disturbing that the tender documents are alleged to have been defective.” Yet, on 18 December 2008, in response to a query by the Chief Financial Officer over the same issue and recommendation that the ministry’s State Counsel peruse the documents, Mr. Kirui responded that “State Counsel perusing the agreement is just another bureaucratic hurdle” to delay the transaction. Kirui pointed out that even “the other bidders” had not complained. Bureaucratic procedure suddenly becomes an unnecessary hindrance.

None of the documents were copied to or signed by Hon. Musalia Mudavadi, in violation of section 144(2) of the Local Government Act that states that all land transactions must be approved by the minister.

On 15 February 2010, the Controller and Auditor-General forwarded his audit report on the transaction to the finance minister, Uhuru Kenyatta. He also delivered a copy to Hon Mudavadi who then forwarded it to the KACC on 17 February 2010, and requested that action be expedited on the matter. On 19 February 2010, Mr. Mudavadi sent a letter to Amb Muthaura, with a copy of the report and asked Muthaura to “take peremptory measures” to implement the report’s recommendations.

Neither KACC nor Muthaura took any action; not until the irregular leakage of an incomplete KACC report. The true value of the land in question is Sh 24 million. The transaction was sealed using a forged valuation report that inflated the price to Sh 325 million, which was paid out to among others, a sister to the PNU’s James Nyamweya. The land purportedly purchased is not the same as the nine parcels listed above. Mudavadi was not involved and never received a cent.

Very Trying Moments for ODM, DPM Mudavadi

Corruption Ghost Stalks ODM ministers.

The Deputy PM and ODM’s Minister for Local Government Wycliffe Musalia Mudavadi was the whistleblower of the Nairobi City Commission cemetery scandal. He purposefully wrote to the Head of Civil Service Francis Muthaura to take action on some officers in his ministry implicated in the scam which he claims was engineered without his knowledge. Mudavadi has also been grilled by the Parliamentary Committee of Local Government, which interestingly made a recommendation that he be investigated for not bothering to visit the cemetery site!

Prime Minister Raila Odinga was last night reported to have asked both Mudavadi and Mayor Geofrey Majiwa to take political responsibility of the scam and step aside to allow KACC to undertake forensic investigations. Rumours have been flying around Nairobi this morning that Mudavadi will be handing over his request to temporarily step aside at any time if only to show his party ODM means business in tackling high level graft.

Many will recall that although President Kibaki suspended key officials of the Office of the Prime Minister over the maize scandal, the suspension came hours after the PM had already received resignation letters from Mohammed Isahakhia and Caroli Omondi. Therefore it will not be entirely a surprise if Mudavadi and Majiwa also hand in their resignation going by the commendable trend already shown by ODM.

While addressing the an International Monetary Fund forum on Africa’s Economic Transformation Prime Minister Raila Odinga maintained that politicians and leaders implicated in corruption must be held to account for the government’s war against graft to succeed. Raila told the forum that corruption had been the biggest impediment to development and that the war against corruption must be personalised by identifying individuals concerned and making them carry their own cross. Wise words indeed. But will ODM walk the talk?

Only yesterday, and more than a month after Mudavadi’s pleas for action to be taken on MoLG officials, the President reluctantly interdicted several government officials. President Kibaki who has been under intense pressure from his coalition partner and donors to crack down on high level corruption went to say that the Kshs. 259 million that was overpaid for purchase of the cemetery land must be recovered from the beneficiaries and “collaborators including lawyers and agents, should be prosecuted for the serious fraud which they have committed against the Kenyan public”. Music to my ears, I must admit.

However, keen observers will have not failed to notice that this is action of interdicting government officials was taken the same day the President was meeting the IMF Managing Director Dominique Strauss-Kahn. Interestingly, the directive by the president to demand that the stolen money be refunded is a historic and a first for Kibaki’s eight year old presidency. The Kenyan public are wondering if the thieves of Anglo-Leasing, Triton, Maize, FPE, Kroll and even Goldenberg will also be charged and asked to refund the hundreds of billions of public money stolen to line the pockets of a few individuals. At long last the public will appreciate the positive side of ever forming the grand coalition.

If Mudavadi and Majiwa do indeed step aside, the pressure will only be increased on Kibaki and his corruption laden PNU side. If they do not step aside, ODM will be seen to have lost credibility in the eyes of the public. The ODM Party Leader will also be placed in an awkward situation.

We shall then have to wait and see if the KACC will indeed find Mudavadi and Majiwa culpable and charge them in an anti-corruption court. Not much hope in that direction though.