President Kibaki’s announcement that Kenya will hire international experts to help bring to book those behind the Goldenberg scandal has drawn sharp criticism. Those opposed to the move say it is a waste of public funds since our own institutions have the capacity to handle investigations and prosecution of the scam. Coming in the midst of the heat generated by the release of the report by the judicial commission headed by Mr Justice Samuel Bosire on the scandal, this criticism was not unexpected. But, in my view, it is borne out of a refusal to acknowledge that we are faced with a very serious problem that needs urgent resolution, and that we lack the institutional capacity to bring this about.
In the past, we have witnessed how the institutions entrusted with investigating, prosecuting and trying the Goldenberg cases turned the whole affair into a circus. Today, 12 years since the monster was born, the principal suspects are still on the loose, thanks to shoddy investigations and prosecution.
Proper investigations are crucial to a successful prosecution. Those saying that those behind the Goldenberg scandal be immediately prosecuted in court are simply refusing to acknowledge that there is need to have all the evidence in before this can happen. Immediate prosecution may not be the way to go just yet. We must give the Government time to put together compelling, credible and incontrovertible evidence based on the findings of the Bosire Commission. We must remember that not all evidence was presented before the commission.
Careful and exhaustive investigation
Investigating corruption is not always a simple affair. Corruption, especially in the scale and magnitude of Goldenberg, and involving convoluted and nefarious dealings, requires careful and exhaustive investigation since it can be very hard to prove in court.
When we talk of grand corruption, we are dealing with a particularly elusive and complicated type of criminal activity called white-collar crime. Here the participants are invariably sophisticated businessmen, powerful politicians, clever bankers and accountants, shrewd lawyers, and extensive networks that permeate the entire government including the law enforcement agencies.
When you begin to investigate such networks, you end up encountering resistance from all directions. Call it institutional and political resistance. Political interference is inevitable. It begins to suck in institutions, some of which are deeply involved in the actual crime or in its cover up. Goldenberg is no exception.
The opportunity to resolve Goldenberg is one that we can very easily lose. How? By failing to get in all the evidence, by allowing shoddy prosecutions to be conducted in court, and perhaps, even by leaving such cases to magistrates who may be easy to compromise. I offer eight reasons why we need to bring in international experts to help us deal with the Goldenberg cases:
From past experience, it is clear that our prosecution is lacking sufficient experience to handle serious fraud cases. You lose count of the number of times you have heard of cases being lost because of “shoddy investigations” or “incompetent prosecution”. It is amazing how even simple corruption cases are lost just because our prosecutors cannot assemble a watertight case that will nail the suspect.
Serious fraud cases span numerous institutions and firms. The evidence is voluminous and taxing to sift through. Some crucial leads may be lost or destroyed. It calls for forensic expertise to piece it all together. Such expertise is seriously lacking in Kenya.
To investigate, prosecute and even try Goldenberg suspects will require a team possessed of such a high degree of independence that interfering with the process will be impossible. Goldenberg touched virtually every institution in government and many powerful people in the previous regime. Some are even serving in the current administration.
Can we really have 100 per cent confidence in local investigators that they haven’t or won’t be touched or interfered with by such powerful people? I doubt. Recall an altercation that the former director of public prosecution had with the prime suspect in the Goldenberg scandal during the Bosire commission hearing over alleged past dealings? “Having too much history” with suspects can severely compromise the independence of the investigator or prosecutor.
Goldenberg is an explosive political affair. It touches on some very powerful people in both the former and current regimes. There is always the danger that the institutions or people we entrust with the work of investigating or prosecuting the scandal may not have sufficient political neutrality to avoid being sucked into the political drama that inevitably surrounds a trial of this kind. Political neutrality is a major factor in securing public confidence in the ensuing trial.
AG’s office compromised
Last week, we were treated to a dramatic exchange between Attorney-General Amos Wako and Prof George Saitoti over who was responsible for authorising certain payments to Goldenberg as export compensation.
Now, that the legal opinion that the AG’s office is said to have given on the legality of the transaction has been questioned by the Bosire Commission, how can we go back to the same institution and ask it to prosecute the case? Wouldn’t there be a serious conflict of interest especially on the singular issue of that payment?
Credibility of prosecution
The credibility of our prosecution system has always been questioned. Corruption has been one of the major problems affecting our prosecution system. This is not the right time to test the extent to which this system has regained its credibility. We cannot afford to take chances when we have so much at stake.
A lot of the money looted through the Goldenberg series of scams is said to have already left the country. We need to hire people who are possessed of sufficient agility to operate on the international platform with ease. People or firms who can rapidly trace the stolen money expeditiously will be of great help to the country.
In the long run, we will lose less by bringing in expertise now to help deal effectively with Goldenberg once and for all. We may think that we are saving money by not engaging international experts only to discover later that we have gone nowhere. It will be a great shame if the Goldenberg cases were to be lost down the line due to shoddy investigations and incompetent prosecution.
Mr Mwangi is a lawyer operating in Nairobi