Uhuru, Kajwang’ and Wako Should Be Probed

By GITAU GIKONYO

Honesty is such a vital quality that it can hardly be surpassed by anything else. As a nation, we will not achieve much if we fail to embrace or inculcate it in ourselves.

British essayist Thomas Carlyle (1795-1881) once said of honesty: “Make yourself an honest man and then you may be sure there is one rascal less in the world.”

In this spirit of honesty, three musketeers must rise up and honestly explain away allegations that are being made or have been made against them.

The first one is attorney-general Amos Wako. This man, in his characteristic fashion of denial, claims not to have been involved or informed of any immunity from pursuit given to Kamlesh Pattni and his accomplices or in the subsequent sale of the Grand Regency Hotel.

Quit the office

His claims notwithstanding, there is a very disturbing contention which has been doing rounds in the press and which Wako must clarify as he prepares to quit office.

This is in relation to section 56B of the Anti-Corruption and Economic Crimes Act. The “handover” of the Grand Regency and its subsequent hurried sale trace their origins to the settlement agreement registered in court on April 9, 2008.

This settlement was pursuant to section 56B of the Act. However, it is emerging that this specific section may after all be illegal.

The Hansard of September 13, 2007, says that during a debate on amendments to the Act, the question on whether to approve Section 56B was put to the vote and Parliament voted to have the section deleted.

Also, the President declined to assent to the Act citing among other things its proposed blanket amnesty and agreed with Parliament that Section 56B remains deleted.

Secret insertion

According to the Hansard the President‘s recommendations were debated in Parliament on October 4, 2007, and section 56A reinstated while section 56B remained deleted.

It is also on record that Justice Aaron Ringera called a news conference that day and complained about the deletion of Section 56B and other proposed amendments.

How strange then that when AG Wako published the Act and commenced it on October 15, 2007, section 56B was part of our laws?

The net effect is that any perceived amnesty or transaction pursuant to section 56B of the Act is null and void ab initio. For the secret insertion of otherwise deleted amendments into a law for the President’s assent is fraudulent, unconstitutional and criminal in nature.

What Kenyans must demand to be told is, if section 56B was deleted by Parliament on September 13, 2007, who “sneaked” it back into the Act and why?

Any attempt to wish it away thus “I was not informed or consulted” will not work. The buck must stop with Mr Wako.The other two musketeers have everything to do with the new buzz word for ministers under siege — “discretion.”

Former Finance minister Amos Kimunya must be wishing it had come up before he stepped aside since it being a cushion, he most certainly would have taken cover behind it too.

But for the moment it is providing cover for Deputy Prime Minister Uhuru Kenyatta, who has been sucked into controversy, and Immigration and Registration of Persons minister Otieno Kajwang’ who is not yet out of the woods.

It is alleged that while serving as Local Government minister, Mr Kenyatta substituted a list of political parties’ civic nominees forwarded to him by the ECK with one of his own, which accusations he has denied.

Mr Kajwang’ on the other hand, has been accused of impropriety in that he issued work permits to foreigners whose professions are available locally, totally against the advice of his permanent secretary and director of Immigration Services.

Likewise he has denied any wrongdoing. Mr Kenyatta has, however, not  used the word “discretion” but Kajwang’ was quick to invoke it.

The fundamental objective of allowing ministers and senior public servants discretionary powers is purely to support wider public interest.For Parliament which confers that discretion, can never be taken to have intended to give a power to act in bad faith or to abuse power. If an act is to be done according to the discretion of a minister, it should follow the rules of reason and justice, not private opinion.

For Mr Kajwang’ to have met the applicants in person reeks with a decision informed by private opinion.In his own words, he is “like an appellate judge with discretion to supreme ministerial decisions”. The discretion of a judge has been discredited as the law of tyrants; especially appellate judges whose decisions settle a matter for good.

Public bodies

But some discretion is necessary, because law cannot anticipate every eventuality or how to decide which law may apply to a given situation. However, all public bodies are under an obligation to show fairness and reasonableness.

“Unreasonableness” may mean that even though the authority has acted according to the law in the sense that it has not acted on irrelevant grounds or exercised power for an improper purpose, yet it has given more weight to some factors than they deserved as compared with other factors.

Mr Kajwang’ can, therefore, not be heard to say that he has a soft spot for “people who pray” otherwise woes betide this nation when he develops a soft spot for terrorists.

Mr Kenyatta, Mr Kajwang’ and Mr Wako must be investigated.