From: Ouko joachim omolo
Colleagues Home & Abroad Regional News

BY FR JOACHIM OMOLO OUKO, AJ
NAIROBI-KENYA
THURSDAY, APRIL 26, 2012

The President of the Court of Appeal Justice Riaga Omollo was sacked by Judges and Magistrate Vetting Board led by Sharad Rao because they found him inconsistent in judgments and also failed to show objectivity especially in the cases he presided in the Moi era. Justice Emmanuel O’Kubasu on the other hand was sent home because of accepting ‘gifts’ from litigants.

While Justice Samuel Bosire is sent home because of condoning torture of the 1982 coup suspects, together with Justice Joseph Gregory Nyamu their fates are also tied to the Goldenberg scandal. Nyamu was also accused of being a stumbling block to the fight against corruption and also failed to show impartiality especially in political cases.

According to Justice Bosire however, he was confident that his past record on the bench speaks for itself saying that he executed his duties in a professional manner, serving the Kenyan judiciary diligently without bowing to political pressure from any quarters.

One of the controversial rulings he made include that of the famous lawyer S.M Otieno burial dispute between his widow Wambui Otieno and the deceased family over who had the legal rights to bury him.

In his 1986 verdict Justice Bosire ruled in favor of the lawyer’s family arguing that his burial was not governed by any Kenyan statute. Justice Bosire stood by his ruling saying he made his decision based on the legal provisions at the time which stated that burials had to be carried out according to the customary law.

The problem with Justice Bosire is more tied to the Goldenberg scandals he chaired. His problem intensified when on February 3, 2006 he recommended that by then Education Minister George Saitoti should face criminal charges for his actions and that former President Daniel arap Moi should be further investigated.

Saitoti was a very powerful politician in Moi Government. He once served as both vice president and finance minister under Moi in the early 1990s. On 13 February, to demonstrate to Kenya that Kibaki Government was very serious to fight corruption, Saitoti was forced to resign by President Kibaki in a television address.

Bosire found himself again in a big problem when he concluded in the report that records presented at the inquiry showed that Lima Ltd, which is associated with Mr Gideon Moi, Mr Nicholas Biwott, and two other people, received Sh6.3 million from Goldenberg.

Another big risk Bosire made was to mention Mr James Kanyotu as one of the Goldenberg directors when it was known to Kenyans that he was the director of the Special Branch and a director of First American Bank.

No one could dare mention Kanyotu because he was one of the most mysterious, feared and long serving directors of Intelligence and close ally to President Kenyatta and Moi. Under his watch as the head of Intelligence in 1969, Tom Mboya was killed.

Six years later, in 1975, he was the spy chief when Nyandarua North MP, JM Kariuki, was murdered and his body dumped in Ngong Forest. The discovery of JM’s body at a time when he was said to be in Zambia by Moi who was the Vice President then led to riots and demonstrations against the Kenyatta regime.

In 1990, Cabinet minister, Robert Ouko was murdered. The subsequent discovery of his body at the foot of Got Alila Hill rocked the Kanu regime to its foundations.

Then Chief Government Pathologist, Jason Kaviti, was forced to explain that Ouko committed suicide by shooting himself on the head, dousing himself with petrol and then setting himself ablaze.

There must have been details Kanyotu knew that could have been key in resolving the crimes, having been in spy agency business for long but no one could dare spell them out save Bosire.

Rather than operate from the Special Branch office that was at Kingsway House at the junction of Muindi Mbingu Street and University Way, Kanyotu opted to operate from his home, even when his officers, known for their ruthless behaviour, moved over to Nyati House, next to Laico Regency, Kanyotu still loved to operate away from the crowd.

During his tenure he oversaw the construction of the Nyayo House torture chambers in 1983 with his team later operating from the 25th floor and the basement. Near this property lived Kamlesh Pattni, but no link had been made between the two until the Commission of Inquiry into the Goldenberg saga uncovered that Kanyotu was the director of Goldenberg International and that prior meetings had taken place at this home in Tigoni.

Goldenberg International and Exchange Bank had been founded by both Kanyotu and Pattni but the former had left the running of the companies to Pattni. Bosire wanted Moi to appear before him to explain how Kanyoyu arranged for him to meet with Pattni.

Even though according to then CID director Joseph Kamau who told reporters on March 9, 2006 that files on Pattni, Kanyotu, Koinange, Kotut, Bii, Riungu and Werunga had been passed to attorney-general Amos Wako, he recommending that the country’s chief justice consider overturning a previous court order exempting Mr Saitoti from prosecution.

This explains why Wako was able to survive being AG since 1991, when Moi was in power until recently when he retired as required by law. It means that if you want to survive in Kenya as the executive employ you must play things cool. All except Werunga were to be charged.

That is also why, even though receiving the report President Kibaki said the government would take action on the report after thoroughly studying it this could not be possible since he also needs political support.

President Kibaki had assured the public that the government shouldl act on the recommendations of the commission and would not hesitate to contact the commission should the need arise.

The country lost 1.4 billion shillings in export compensation, Shs. 3 billion under the pre-export finance scheme upon the collapse of Trade Bank limited and billions of other monies siphoned out of the county under the rention scheme.

Another fraudulent scheme, the Judge added, involved cheque kiting that was entered into largely to allow Kamlesh Patni to cover borrowed money he had taken from the Central Bank and yet the scheme was using non existent money.

On Pan African Bank, Justice Bosire said it was ‘bought’ out of the money obtained from earlier fraudulent schemes even though no money was paid by Pattni and his friends.

The commission of inquiry recommended that a proceed of crime act be passed urgently to deal with culprits involved in similar scams in future, the deposit protection fund vote should be independent, the licensing of banks be given to the Central Bank of Kenya and the oversight functions of the controller and auditor general should extend to the central bank of Kenya.

If the report of the Bosire Commission fails to help Kenyans get justice, then his sacking is meaningless. This is because Kibaki set up the Bosire Commission to catch thieves so that they could be prosecuted.

The four judges are not alone. Ministers, their assistants, MPs and councillors remain among the most corrupt people in the eyes of the Kenyan public according to the anti-corruption commission.

In its 2010-2011 report submitted to Parliament, the Ethics and Anti-Corruption Commission shows that one in every three Kenyans views these groups of politicians as the most corrupt. Heads of parastatals and other government departments are also in this league.

People for Peace in Africa (PPA)
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