E-Clips:- Business Pictorial - A-G In Anglo Leasing Shocker

The Attorney General has ruthlessly punched holes into what Justice Aaron Ringera a fortnight ago described as evidence "watertight" enough to prosecute the Anglo Leasing cases.

With this, the Anglo Leasing saga degenerated into a complete circus, amid growing fears it was headed for the graveyard and that the real architects of the multi-billion-shilling scandal would never be brought to book.

In a six-point demolition of the Kenya Anti-Corruption Commission (Kacc) investigations, the AG, Mr Amos Wako, raised the stakes in Kenya’s biggest financial scandal of recent times, directly putting to question Judge Ringera’s very competence as an investigator.

On Wednesday, the 12 files, which a confident Ringera had handed over to Wako in the belief they would form the basis for prosecutions, were effectively on their way back to Integrity Centre.

Integrity Centre remained tight-lipped

It was an anti-climax — the kind that leaves a bitter taste in the mouth — as the Government’s chief legal adviser announced after 14-days of palpable anxiety that there would, after all, be no prosecutions — at least for now!

With just one sentence in the seven-page statement faxed to newsrooms on Wednesday, Wako destroyed a task that Ringera had labelled "complex, protracted and multi-jurisdictional."

Integrity Centre — Ringera’s own seat of power — remained tight-lipped. Its spokesman, Mr Nicholas Simani, said: "We have not seen the statement (by Wako), so I’m really not in a position to comment."

Housing minister Mr Soita Shitanda who had threatened to resign if anyone dared recommend his prosecution over forged mileage claims that saw the Ford-Kenya MP pocket Sh285,984, was let off the hook with a warning that no such claims would be tolerated in future.

In exonerating Shitanda, Wako said: "It is my considered opinion that his is a proper case in which I should temper justice with mercy.

" AG demanded fresh investigations

But the minister was ordered to immediately make arrangements with the Clerk of the National Assembly to repay the money.

The AG said he had considered the circumstances surrounding the matter in which 65 MPs, who had also been overpaid mileage claims, were allowed to refund the money.

In order to stand the test of judicial scrutiny, Wako demanded fresh investigations into all the 12 Anglo Leasing cases with a view to covering all aspects of the cases, both local and international. Thereafter, the files can be resubmitted to his office within 30 days.

He pointed out that in the event investigators will not have finalised the probe within the stipulated time, a progress report should be forwarded to his office.

Wako said when he received the Kacc files, he set up a special team of senior prosecutors to study the evidence.

The team submitted its recommendations to him, which he had now considered. He added: "In their report to me, the team has identified a number of material and significant gaps which, in their opinion, and I agree, unless covered a successful prosecution will not be possible."

Danger of cases being thrown out

The AG noted that the gaps identified were such that if he decided to go to court, there was an inherent danger of the cases being thrown out.

He said the deficiencies identified were that the Kacc investigators had proposed that most of the suspects named in all the files be charged for failure to ensure that budgetary provisions were made for the projects in estimates of expenditure approved by Parliament contrary to External Loans and Credit Act.

However, Wako says there was no evidence from any witness stating positively that there were no such provisions made in the Estimates of expenditure or that Parliament was not informed of the security contracts as required by law.

"Evidence is also needed to show that the monies paid for the projects in question from the Consolidated Fund were never at any time approved by Parliament as required by Section 100 of the Constitution," Wako pointed out.

Wako noted that if this was to be proved, then statements should be recorded from relevant officials in Treasury and also in Parliament.

Failure to comply with regulations

The AG said most of the suspects named in the files were proposed to be charged for failure to consult the Central Bank of Kenya before entering into the external loans agreements in question contrary to Section 31 of the CBK Act.

"There is no formal statement from the CBK on this aspect," said Wako, adding it was critical that a detailed statement be recorded from the Governor or any other relevant bank official to affirm positively that CBK was not consulted.

Wako said it would be useful for a statement to be recorded from Treasury. He said the statements should also indicate how such consultations are and were supposed to be carried out and who the officials responsible for such consultations in CBK and the Government were.

Wako said a number of proposed charges by Ringera and his team were based on failure to comply with regulations under the Exchequer and Audit Act (Public Procurement) Regulations 2001.

However, Wako punches more holes into this evidence, saying it was essential to record a comprehensive and detailed statement from the Director of Public Procurement commenting on each of the contracts in question.

Cases under inquiry are document-based

The AG further told Ringera the Procurement director, as an expert who implements regulations, should comment on issues such as who had the duty and responsibility to ensure compliance with regulations.

He should also comment on the responsibility of ministers, if any, in the procurement process and where an exemption has been granted.

The AG also wants the official to comment on whether the provisions relating to direct procurement were still in operation.

"The cases under inquiry are document-based. Consequently, the examiners’ reports in respect of each file are essential and should therefore be produced," he added.

Wako told Ringera detailed statements of the investigating officers should be recorded and their investigation diaries prepared and produced.

He disclosed some of those recommended for prosecution in some files were also key prosecution witnesses in other files.

"It is highly unlikely that these accomplices will give any evidence favourable to the prosecution and may turn out to be hostile witnesses in court," he added.

Files had only covered local aspects

Wako said such witnesses should be replaced with any other relevant officers familiar with matters covered in their evidence.

"The foregoing are but an indication of the gaps and deficiencies that need to be addressed," he added.

Wako told Ringera the Director of Public Prosecutions would be communicating to him the details of the specific areas required to be covered on each investigation file.

The AG noted that Kacc had admitted to him the files had only covered local aspects while investigation on the international aspects were still under way.

He said there was need to expedite the investigations on the international aspects as they could have a significant bearing on the intended prosecutions.

The five projects under scrutiny include the Sh5.5 billion E-Cops project and a multi-channel security system for the Administration Police valued at Sh5 billion. The modernisation of police equipment and accessories for Sh3.8 billion was also listed in the projects.

The other two were for the supply and installation of an Early Warning Security System for the Meteorological Department (Sh2.6 billion) and the Postal Corporation of Kenya’s VSAT project valued at Sh5.2 billion.

Three of the contracts for which prosecution was recommended fell under the Office of the President and the other two under the Ministry of Transport and Communications.