Believe it or not, I have a copy of the “Report of the sub-committee of the Law Society of Kenya to inquire into and consider matters relating to an alleged payment of Ksh 20 million by Kamlesh Pattni to Mr. Paul Muite.” Isn’t this a beautiful country! Without any Freedom of Information Act, the information still gets around. But anyway, if you want a copy, just come to my office; I have several.

When I picked up the report, I was expecting to be impressed by a thoroughly researched chain of facts and inferences that would put an end to the matter of this bribery claim once and for all. What I read was yet another mish-mash of rumour and supposition that, with all due respect to the authors, falls far short of being a report of a legal committee.

First, the committee stated that it was determining the facts on “a balance of probabilities”. This is the standard of proof used in civil cases. In criminal cases, and also in civil cases that have elements of crime (or other grave aspects), the standard of proof is supposed to be “beyond reasonable doubt”. Thus, if the court in a civil case were to decide that, between Pattni and Muite, it believed Pattni, then this “fact” would be considered proved and it would be the judgment of the court that Muite took money from Pattni.

But a criminal case must go beyond this. There, if Pattni, even though he might be more believable, did not prove beyond reasonable doubt, the court would have to find that Muite is innocent of taking any money from him. But the committee used the wrong standard and so failed to give Muite the benefit of the law. I cannot be found guilty of murder simply because I cannot account for my whereabouts on the day of the murder. But in a civil court, such evidence is enough to convict me.

For instance, the committee states in its report that it did not contact the Central Bank of Kenya to confirm whether the cheques in question were cleared through the banking system. Nor did it make any attempt to search for the cheques themselves, or the microfilm, or the statement of accounts of Multiphasic Ltd. But it said nevertheless that Multiphasic received Kshs 15 million from Pattni.

The only way such a finding could be made was if the committee believed that the copies of the cheques were genuine. Indeed, it is said that “we have seen all the copies of the cheques produced by Mr. Pattni and Mr. Mburu, all of which appear to be regular on the face thereof and which we therefore accept as genuine”.

How can anybody in Kenya make such a finding? This is a country where we forge everything: cheques, title deeds, passports, identity cards. We even forge the president’s signature, as President Moi once pointed out. How can anybody accept a photocopy of a cheque as being evidence of genuineness? How can any committee of lawyers take such evidence as proof?

Something else that did not seem to attract the attention of the committee was the way the money was paid out. If a person were paying a bribe of Ksh 15 million in three installments, one would expect it to be in installments of Ksh 5 million each. But the actual payments are Ksh 4,850,000, Ksh 4,914,210 and Ksh 5,235,640. Nobody asked Pattni to explain this. These are sums that look like they contain elements of VAT and so on. They do not look like sums given for bribes. Has anyone ever given a police man 53 shillings? What is Pattni’s explanation?

Mr. Mburu, the said business associate of Muite did not have the statements of accounts for Multiphasic. At least, no such statements were given to the committee. But guess what? He had all the cheques he issued on the Multiphasic account on behalf of Muite. Which means whenever he is told: “Give a cheque to so and so,” he photocopies it. He even photocopies a cheque of Kshs 200 to Karen Country Club. But he didn’t have the statements of accounts to show that the cheques of Ksh 15 million were banked and honoured. But he had all the cheques – amounting to Kshs 14,931,398.55- paid out to Multiphasic on Muite’s instructions.

Some questions: Didn’t Multiphasic have any income, any other cheques being banked? Did Multiphasic make any other payments for Muite before the Pattni cheques and after? Do the payments on Muite’s instructions prove that these were Pattni’s monies being disbursed?

Again, having shown us the copies of the cheques, can Pattni prove that it was his money? Can he show us his statements of account proving that those bankers’ cheques were drawn on money from Goldenberg? How can the committee be sure that Pattni, having been the Chairman of Exchange Bank, did not just take copies of cheques drawn on the bank in totally different circumstances by a totally different person and then claim they were payments made by him?

Then we are told that Muite handed over to Pattni a copy of Sarah Elderkin’s story on Goldenberg. The copy is curiously called “the original final part”. What on earth does that mean? Nowadays, stories are written on computers, saved and printed out, photocopied or circulated on diskettes. What does original mean? The handwritten script? If so, would that give any assurance to Pattni that no other copy existed, even in the computer’s hard disk? Of course not.

Which means that if there were any deal involving not publishing Sarah Elderkin’s story, it is a deal that would have involved Sarah Elderkin and the Nation Editors and management. At least I would expect Pattni to insist on such assurances before forking out Ksh 20 million.

But Pattni does not allude to such a deal. He does not speak of Elderkin’s involvement, or that of the Nation. If the money were given to Muite in respect of the stories, who else received money? Muite alone could not have assured Pattni that there would be no publication. He didn’t have the power. This means that Pattni’s story has gaps, too many gaps. And it is wrong for a society of lawyers to use such a story to sacrifice one of their own. They must ask for their colleague what they demand for their clients every day in court-proof beyond reasonable doubt. To fail to do so is not to fail Muite-it is to fail the whole concept of the rights of accused persons before the law. It is to fail the country.

One last thing -The committee said that Muite’s statement was an attack on the credibility of both Pattni and Mburu on the basis that they were not people of honest character and should not be believed. The committee then found that no concrete evidence was, however, put before them to support this position.

In respect of Pattni, I ask this: Do Kenyan lawyers live in this country ?