Law Professor Advises Kenyan Graft Buster

BUFFALO, N.Y. -- In the quiet of his office in the University at Buffalo Law School, Makau Mutua contemplates his role in exposing an elaborate scheme of government fraud in his native Kenya, where high-ranking officials have resigned in recent weeks, rocking the country's ruling government headed by President Mwai Kibaki.

"I always tell my students that the purpose for practicing law should always be to work at the intersection of power and powerlessness, to make sure we hold accountable those who are powerful and reduce the deprivation of those who are powerless," says Mutua, professor of law who teaches international law and directs the Law School's Center for Human Rights. "We must always use law for the social and political good."

Mutua has made several visits to London to serve as legal and political advisor to John Githongo, the Kenyan government's former anti-graft czar. Githongo, with the legal counsel of Mutua, first presented evidence of the fraudulent scheme before a Kenyan parliamentary committee at Kenya's High Commission in London in mid-February. According to media reports, part of the evidence included secret audiotapes of high-ranking officials implicated in the fraud.

Intensive media coverage of that meeting, as well as a BBC broadcast of a snippet of audiotape released by Githongo after consultation with Mutua, have sent shock waves throughout Kenya and the international community. Public outcry over Githongo's claims now threatens to topple the highest reaches of the Kenyan government. So heated is the political climate in Kenya that Githongo and Mutua decided to present their evidence in London to the Kenyan High Commission, which is considered Kenyan soil, rather than in Kenya.

"The evidence of corruption that is available against senior government officials is incontrovertible, overwhelming and conclusive," Mutua says.

Central to Githongo's allegations is a government contract for $37 million awarded in 2003 to a nonexistent company, Anglo-Leasing and Finance, to produce passports for Kenya. Appointed Kenya's anti-corruption czar by Kibaki in 2003, Githongo uncovered the Anglo Leasing deal in March 2004. Though the contracts listed Anglo Leasing addresses in multiple jurisdictions, including England and Scotland, Githongo was unable to trace them to an actual entity.

Over the next six months, Githongo discovered several other suspect or fraudulent contracts that the government had entered into with "fictitious, nonexistent or dubious companies," according to Mutua. Some of the fraudulent contracts and shady business contacts were inherited from the previous Kenyan regime; other contracts appear to have been initiated by the current regime. According to evidence gathered by Githongo, money from the contracts was meant to fund the political activities of Kibaki's ruling party.

"This is a classic government procurement scam," Mutua explains. "It is the kind of script used by many corrupt governments to steal from the public purse. Kenya did not invent it, but government officials have used it extensively for decades."

This is the first time, however, that a claim of this nature has produced high-ranking government resignations in Kenya.

According to Mutua, soon after Githongo learned of the fraud he disclosed it to high-ranking officials, including Kibaki. Githongo fled Kenya in January 2005 when, according to press reports, it became clear that Kibaki would not protect him. In self-imposed exile in London, Githongo is now a senior associate member at Oxford University.

Over the past year, Mutua has worked closely with Githongo to prepare legal documents and evidence, including evidence presented at a hearing before the Kenyan parliamentary committee in London in mid-February. The two men have been friends and associates for years, with each holding prominent human-rights and government-reform positions in Kenya.

"It has been sobering to work with John on this issue," says Mutua, who in 1981 was exiled from Kenya for a decade after speaking out against the country's one-party rule. "John has the commitment of a visionary to a Kenya free of corruption. He is committed to renewing the promise of Kenya as a democracy, and his sense of self-sacrifice is immeasurable.

"He has been uprooted from his own country and now leads a much less exalted life far away from the comforts of the State House in Nairobi. I think it takes a person with a singular conscience to make these kinds of sacrifices."

Ironically, both Githongo and Mutua supported the candidacy of Kibaki in 2002. Together they helped oust the notoriously corrupt Kenya African National Union (KANU) regime. Githongo and Mutua's initial support of and service to the Kibaki government makes their role in exposing the current scandal particularly painful.

"John and I were part of a group of reformers that helped the current regime come into power," Mutua explains. "That is why it is particularly disappointing that senior members of the Kibaki government have turned out to be as corrupt as the people they replaced.

"It was inconceivable, I think, at the beginning that we could find ourselves on such opposite sides of the struggle against corruption and for democracy in Kenya."

Whether or not the investigation eventually forces the resignation of senior officials of the Kibaki regime prior to the next presidential election in 2007, the fall-out from this scandal may be enough to produce profound changes in Kenya's political landscape. For the first time in Kenya's 43-year history as an independent nation, the notion of political accountability may finally have started to take root. "The most important thing is that this scandal may begin to change Kenya's political future," Mutua says.

In cases of grand governmental corruption, there are two types of accountability: political accountability and legal accountability.

"The resignations have started a process of political accountability," Mutua says. "However, it remains to be seen if the judicial system can affect legal accountability through effective prosecutions of senior officials."

The unfolding government corruption scandal is far from over. The question now is whether the momentum it has created will cleanse Kenya and lead to the emergence of corruption-free leadership, without which democracy and human rights cannot be realized in this pivotal East African Nation.

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