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MPs accused of overstepping mandate in corruption probes

Wednesday, July 21st, 2021 00:00 | By
Suspended Kemsa CEO Jonah Manjari when he appeared before a parliamentary committee over alleged loss of billions of shillings by the agency. Photo/PD/File

Eric Wainaina @EWainaina

Disquiet is brewing within agencies mandated to fight corruption over the conduct of parliamentary committees amid accusations the latter were overstepping their roles.

Though Parliament is constitutionally mandated to play an oversight role on all government related bodies, fingers are being pointed at the Legislature for allegedly overstepping its oversight mandate for personal gain to an extent of interfering with ongoing investigations.

MPs face accusations from various state agencies and constitutional commissions for allegedly abrogating themselves the investigative role through parallel probes that they have been undertaking.

First to raise their discomfort with the National Assembly and Senate were the Executive and the Judiciary, which questioned the rationale of numerous summons of their officials for grilling on audit queries, some of which were under active investigations or pending before courts.

MPs have grilled potential suspects and witnesses in graft claims in public glare attracting the ire of the Ethics and Anti-Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI), the Office of the Director of Public Prosecutions (ODPP), the Assets Recovery Agency (ARA) and other investigative agencies.

Hot potato

So sensitive is the issue that EACC boss Twalib Mbarak and his DCI and ODPP counterparts George Kinoti and Noordin Haji res[ectively declined to comment, for fear of reprisals from the Legislature

“It is such a hot potato that none of the bosses of affected agencies would dare raise a finger because of the consequences. They would rather suffer in silence,” said a senior Interior ministry official.

Many are the times that lawmakers have been accused of pursuing individual interests and harassing State officers in the name of exercising their oversight role.

The bicameral Parliament is being accused of misusing Article 125 of the Constitution, which gives both Houses, and its committees, powers to summon any person to appear before them for purpose of giving evidence or providing information.

But according to lawyers, while that section of the supreme law gives Parliament oversight and advisory mandate, their findings and recommendations are not binding and should only be complementary.

“Basically, the work of parliamentary committees should be additional to those of investigative agencies and not to usurp the mandate of pointing out the criminal aspect,” says Senior Counsel Tom Ojienda.

While Ojienda agrees that committees being quasi-judicial can make drastic recommendations such as barring one from holding public office, they should not jeopardise active criminal investigations.

Last week’s warning by Chief Justice Martha Koome to Parliament after multiple committees summoned Judiciary Chief Registrar Anne Amadi and other senior judicial officials to respond to various issues, exposed the simmering row, a concern that has in the past been raised by President Uhuru Kenyatta and echoed by Opposition leader Raila Odinga.

Further, investigating agencies and the ODPP have been harbouring reservations with how MPs have been handling cases under investigation, with the investigators expressing concern that parallel probes by committees as well as comments by politicians threaten the outcome of cases.

The matter, according to sources, had been raised with the Attorney General by the investigative agencies as they seek to have Parliament, which has been battling allegations of using the summons to advance extortion, tamed especially regarding corruption scandals.

The CJ, in a letter to National Assembly Speaker Justin Muturi and his Senate counterpart Ken Lusaka, protested the summons of senior officials, and while citing cases, suggested that it was a meaningless duplication exercise meant to harass them.

In one of the cases, Amadi was supposed to appear before three different committees of the National Assembly and the Senate on July 8, 2021.

“We have had frequent and multiple summons from Parliament, overlapping and duplicating summons from different committees of the same House, and also between the two Houses to discuss the same issues. Part of it borders on harassment,” said Koome.

In one of the cases that has angered investigators and the prosecution, on May 26, 2021, when EACC officials appeared before the Senate Justice and Legal Affairs Committee over the multi-billion-shilling Kimwarer and Arror dams scandal, some members openly discussed the matter in spite of it pending before court.

Some MPs expressed dissatisfaction with the move by the ODPP to withdraw charges against former Treasury Principal Secretary Kamau Thugge and turning him into a State witness against former CS Henry Rotich, warning that it was a deliberate ploy by the government to throw away the case since a CS does not bear legal responsibility for financial matters.

“The move does not make legal sense,” Makueni Senator Mutula Kilonzo Jr said during the committee session over the matter that was investigated by the DCI.

“In strict financial terms, the PS is the person who is authorised to incur expenditure. He is the one who signed off the release of funds and is ultimately responsible under the law. The case is going nowhere in a strict legal sense,” Kilonzo added.

Some MPs have also reportedly been threatening heads of parastatals over graft claims, and even forcing them to part with millions of shillings to sanction their budgets, with the recent accusation being directed at a member of the Budget and Appropriations Committee for demanding Sh50 million from a parastatal head. The official reportedly declined, leading to his budget being slashed by almost half.

Dens of corruption

Pundits and even some MPs have argued that while Parliament has a role of over-sighting public institutions and its officers, they have gone rogue and were intimidating the concerned people as well as extorting from officials accused of corruption.

In November 2018, Interior Cabinet Secretary Fred Matiang’i accused members of the National Assembly of abusing the oversight role to settle scores.

“I have appeared before that one committee a record 39 times this year alone. I have all the records of my appearances and those of the officers from my ministry,” Matiang’i said.

Dr Samuel Nyandemo, a senior lecturer at the School of Economics at the University of Nairobi, says Parliament has become a disgrace, terming some MPs as “busybodies” who have turned the two Houses into dens of corruption.

“They have been purporting to fight for public good yet they have been aggressively seeking avenues to be silenced,” he said.

For instance, committees of both Houses, notably Public Investment Committee and the Health committees, have been grilling officials the Kenya Medical Supplies Authority (Kemsa) officials and suppliers over loss of billions of shillings, yet EACC has been probing the theft which Mbarak once described as complex.

The Senate Committee chaired by Trans Nzoia Senator Michael Mbito, the National Assembly’s chaired by Murang’a Woman Rep Sabina Chege and the Public Investments Committee (PIC) chaired by Mvita MP Abduswamad Shariff have been probing the scandal where Kemsa officials and suppliers, who are the likely suspects and witnesses, have appeared and even produced publicly what would easily pass as evidence in court.

Nyandemo opines: “Their actions have ripple effect on the investigations and the cases once in court because in Parliament, potential evidence is leaked, it’s given out which puts it at the risk of being adulterated or lawyers getting a chance to interfere with the cases to the disadvantage of investigating agencies.”

For instance, the PIC committee, which has been investigating the Kemsa bosses, has grilled suppliers who have treated Kenyans to bizarre claims on how they won multi-million-shilling tenders without bidding for them while EACC has been investigating the same people who have also been giving their evidence before live parliamentary sessions.

Muturi warning

The Senate Health committee, in a parallel investigation, indicted suspended Kemsa CEO Jonah Manjari and Kemsa’s board, which was chaired by former Murang’a Senator Kembi Gitura in the Sh7.63 billion scandal.

The committee recommended that the DCI and ODPP investigate Manjari and some directors for the loss, yet the matter was already active with EACC.

The Sabina-led committee also interrogated the same people.

Abduswamad agrees that sometimes Parliament and investigating agencies’ work could clash and have negative effects, particularly where they are probing the same scandal, but said EACC and DCI can write to the chair of the committees whenever they think public hearing could hurt their investigations.

“Whenever the DCI and EACC feel that investigations by committees can jeopardise their probes, they can request the sessions to be held in camera. But so far that has not been brought to my attention.

In the event that were to happen, definitely as a chair, I am supposed to give directions because we would not want one arm of government to suffer,” the MP said.

Speaker Muturi maintains that all State entities will have to appear before Parliament to answer audit queries.

“By failing to appear, and there is evidence that they have been invited and they have failed deliberately, then they should not blame Parliament in making whatever recommendations it will make,” Muturi warned.

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