2023 has been quite a year for Dr. Margaret Nyakang’o, Kenya’s Controller of Budget. After two explosive revelations of her strong suspicions of illegal dealings at the heart of government, she now faces criminal charges herself as the first senior scalp of Renson Ingonga, the new Director of Public Prosecutions (DPP). At the moment, there is no way of judging the veracity of the claims against Dr. Nyakang’o, but history makes me smell a rat.
The powers that be have a range of tried, tested and true tools within the criminal justice system suitable for application on top officials who refuse to remain silent in the face of corruption at the top. For example, in the early years of the Daniel arap Moi regime, Charles Njonjo, the then Attorney General, liberally arrested and charged Members of Parliament he did not like with fudging the mileage claims on their transport allowance. In fear of this retaliation, many MPs who desired to combat corruption remained silent and served out their tenure ignobly, but safely. Others preserved their consciences by resigning, like Joseph Murumbi, our second Vice –President who quit in August 1966 as he could not stand the corruption of the first Republic, and would no longer reconcile himself to serving with the men behind the assassination of his friend and comrade Pio Gama Pinto. Murumbi’s trade off was a complete retreat from politics in return for being left unmolested.
Although independent constitutional office Bearers are now freer to do the work of holding government to fiscal account, there remains risks to poking the beehive without appropriate protection, as Dr. Nyakang’o’s predicament demonstrates, meaning there are limits as to how far one can push in our current environment of impunity and state capture.
On two occasions this year, Dr. Nyakang’o has drawn back the official veil to reveal state capture and impunity for all to see. She was bound to run into some trouble before year end. In March this year, Dr. Nyakang’o told Parliament that she was coerced by Ukur Yatani, the then Cabinet Secretary for Finance, to sign off on KSh 22.4 billion in unapproved expenditure four days before the 2022 general election. Yatani is alleged to have given Dr. Nyakang’o a 26 minute ultimatum to authorize the payments. I can find no report that this serious allegation is under any investigation by the DPP or the Ethics and Anti-Corruption Commission (EACC).
Just last month, Dr. Nyakang’o exposed an unlawful alteration of the budget to enhance salary budget lines for State Officers, and a massive KSh 62 billion variance between the payroll records of government ministries, departments and agencies and the overall IFMIS system run by the National Treasury. She bravely said that across government, a practice has developed of making payments “outside the prescribed payroll management system.” Mostly these are “payments for casual employees, salary advanced to staff and other staff allowances.” There is a persistent rumour about town that the illegal Chief Administrative Secretaries (CAS)are being paid in this manner under the table, so to speak. But this allegation too failed to spur either the EACC or the DPP into action. Instead, it is Dr. Nyakang’o who has been charged with “operating a SACCO without a license, forgery and conspiracy to defraud”.
I hope Dr. Nyakang’o is innocent, but I also know that officials who probe corruption have a history of being set up with charges designed to smear them with the same corruption taint or with disloyalty to the nation. The smear is intended to turn the public against them and to nullify or at least dull the effect of their revelations. It increases public cynicism and taints the official’s testimony before any future proceedings. The uncritical public is cleverly presented with yet another fallen angel by the devils in charge; and the corruption game plays on.
Recall the foul treatment of former Permanent Secretary for Governance and Ethics, John Githongo, who in 2005 tried to get President Mwai Kibaki to take action against ministers and top finance and security bureaucrats who had pulled off a KSh 56 billion heist called Anglo Leasing. Githongo was subjected to death threats and fled for his life into exile, upending a promising public career. Despite publishing a detailed dossier on Anglo Leasing in 2006, neither the then anti-corruption commission nor the then DPP ever seriously pursued the matter when it was hot. Instead, the prosecutions were dragged out half- heartedly over the next 17 years whilst Githongo continued to be smeared as a disloyal whistleblower. The truth is that Anglo Leasing was clumsily covered up, with the unfailing aid of our collective amnesia.
More recently, Edward Ouko, who served as the Auditor General between 2011 and 2019 warned us that “high-level corruption across all levels of government in Kenya threatens the integrity and basic functioning of the state.” Barely three years in office, Ouko drew our attention to the $2 billion Eurobond fiasco of 2014, in which the essential fact is that over $1 billion vanished in American banks, drawing a personal presidential rebuke, and the immediate commencement of an investigation against him by the EACC. Today, we are a couple of weeks away from making the first $300 million installment payment on this sovereign debt, even though we have no evidence that any of the debt was used for our benefit, and may have evidence that it was embezzled. That is the rule of law in operation; we honour our sovereign debt as good global citizens.
For his efforts, Edward Ouko was harassed and snubbed by the establishment. They plainly hated him, and to destroy his reputation, they found an individual and a civil society organization unscrupulous enough to lend their names to Ouko’s persecution. Among the sensational charges against him (all eventually disproved) was that he ran up a one million shilling phone bill on his iPad; was allocated five cars; and tribalism. These sensational charges were meant to destroy Ouko’s image in the eyes of the public. Keriako Tobiko, the then DPP, refused to prosecute Edward Ouko on the false allegations. Can his successor Mr. Ingonga do the same? As he exercises his constitutional prerogative to file charges against Dr. Nyakang’o, I sincerely hope that he can be as fair-minded as Tobiko then was.
I strongly believe we should all demand the DPP apply the same energy he has brought to bear on Dr. Nyakang’o to the far more important business of finding out what’s going on with the KSh 62 billion cash payments she documented, pursuing the clear leads provided by Edward Ouko that the 2014 EuroBond was embezzled, and immediately activate the appeals he has pending against the recent acquittal of the chief Anglo Leasing suspects.
That the DPP has not made any public effort to investigate the obviously culpable in Dr. Nyakang’o’s most recent official reports suggest to me that she is being set up as the latest victim of political justice.