Former PS Ethics and Governance John Githongo discuss the the impact on the political Ideology of violence, exclusion and inequalities in Kenya of the New Constitution and ICC process. Photo/ Jack Owuor
Q: It is almost a decade now since you had to leave the country and went into exile. A child who is 12-years old then is now a grown-up who can vote. They may not know so much about John Githongo and why your story made headlines for so many months back then. Why don’t you start by telling us about the events leading to your departure from high office?
I won’t go into all the details of my education background. But I started my training as an economist and worked as an economist and went into consultancy for myself focusing very much on issues of corruption. I set up Transparency International here in Kenya as the first Executive Director of the chapter after the government allowed it to be registered.
What year was that?
I999. But we operated without registration from around 1996 but the founders had been going since 1993. Transparency International was founded in Kenya, by a guy called Peter Eigen who was the head of the World Bank here in the 80’s.
And what he saw happening here in terms of corruption particularly around things like the Turkwel Dam, caused him to actually raise the issue within the World Bank.
He was told by the legal department within the World Bank ‘We don’t use the word corruption’ it was not legal. He then quit the World Bank to start Transparency International.
When he was debating setting it up, he was engaging with people like my father and others here. That is when I meet him. He quit his job at the World Bank and set up TI in his house in Germany in 1993. I was very skeptical at the beginning that any civil society organization could have any impact on corruption.
And it is actually the London chapter of TI - it is a federal structure - quietly sort of sucked me in. So I got involved heavily in the area of anti-corruption at the same time I was a columnist for the East African for over 8 years; Associate Editor of Executive magazine; and correspondent for The Economist. So I was doing quite a lot of things at the same time.
Well, thanks to this background you ended up as the first ever Permanent Secretary, Governance and Ethics in the Office of the President. Having got into that office, at that time it was considered you are uniquely qualified to do this. It was widely assumed you had 100 percent presidential backing. What went wrong?
I think, I found myself in a situation where I not only felt that I had 100 percent presidential backing but more or less 100 percent backing of Kenyan people because the 2002 elections had seen the Narc coalition elected by an overwhelming majority of Kenyans from across the ethnic divide.
Which was important and it gave the administration the legitimacy to go after the issue of corruption in a way that no other administration since the Kenyatta administration after the end of the colonial rule had and as a critical pillar of its manifesto, was the fight against corruption.
It was at the heart of what Narc had promised the people of Kenya that it would deal with. And so for the first several months, actually my job was mitigation, not even investigation or advising the president.
The job was, Kenyans were the ones fighting corruption which was the ideal because we had Kenyans around the country arresting policemen for asking for bribes.
Civil servants were being arrested by ordinary Kenyans for taking bribes. The people were effecting civilian arrests because they had been solicited for bribes.
So one felt a tremendous sense of optimism and confidence on the part of the population that the government was committed to the fight against corruption.
To be honest my focus became advising, working closely with the President and Minister of Justice Kiraitu Murungi at the time. Putting up the legal and legislative infrastructure to be able to systematize the fight against corruption
. So eventually that saw what was the anti-corruption police unit transformed into the Kenya Anti-Corruption Commission; we saw the passing of the Public Officer Ethics Act; we saw the passing of the Anti-Corruption and Economics Crimes Act; we saw the establishment of Commission on Harambee’s headed by Koigi Wa Wamwere; we saw the beginning of the Ndungu Commision into land; we saw the beginning of the Goldenberg Commission.
Essentially, what we wanted to do was, we had a challenge of how do we deal with the past, which could hold us hostage. We had to move forward.
We said lets package it all together and create instruments that will be able to bring closure and the country can move forward without becoming a prisoner to the past.
How long did it take to establish this entire institutional infrastructure for fighting corruption? How long did it take to pass all those laws, to staff all these organisations?
By August 2004, we were done. There were few who came in later like the pending bills closing committee. By the time we came into office, the office of the Attorney General had not won a civil case against contractors for over five years. So the government owed billions upon billions to contractors.
And looking at these figures it is obvious there were questions to be asked: Was this money really owed? Did Kenyans really have to pay for this? So a committee was set up. A report was eventually published, I’m given to believe, after I had resigned.
The committee was headed by the former Comptroller and Auditor General, D,G Njoroge, who did a thorough job in cleaning up our books as it were. Because sometimes we found ourselves in situations where the government was paying bills which were questioned by other arms of government.
So we had the Comptroller Auditor-General questioning certain transactions and processes but at the same time line ministries proceeding to pay out monies despite these serious questions being asked .
Now to the many who do know you, what you would be most famous for is that you are the man who blew the whistle on the Anglo Leasing scandal. We are well aware that certain issue surrounding this might still be before the courts but is there anything you can tell us about this scam? Very briefly what was the essence of it?
Anglo Leasing scam is a bit like Goldenberg: it’s a word that is used describe a type of transaction which saw government essentially enter into transactions for the procurement of goods and services through intermediaries whose value added was dubious.
In other words it was questionable why if I want to procure something for the Kenyan people I would go to Wycliffe who would then go to Grace to buy the same thing.
And Wycliffe charges me interest and Wycliffe actually borrows the money to be able to pay Grace. And the payments from me to Wycliffe are at such a rapid rate that you actually wonder why Wycliffe is charging any interest at all.
When I’m providing him with his working capital, he would be able to essentially pass on to Grace directly and get the good and services provided.
That was one question. The other question was why I’m I going to Wycliffe at all? Why don’t I go to Grace since she is the expert and in many cases she is a legitimate company in a country with whom Kenya enjoys good relations and therefore some guarantees can be obtained from the government, from which she hails perhaps even reducing our interest or improving the terms in which the government is getting into that transaction.
So remove Wycliffe from the transaction completely and deal with Grace alone for the benefit of the Kenyan people. This introduction of middlemen into these transactions was at the essence of what Anglo Leasing was.
These middlemen took many forms: individuals and corporates or, let me say, entities, sometimes of dubious provenance. In other words when they claimed to be registered in a particular jurisdiction, when one searched using competent authorities like the Attorney General of that jurisdiction to ask whether Wycliffe and company exist in their jurisdiction and they would say ‘No’. So the question became, Who I’m I dealing with?
And really Anglo leasing started when I first asked that question. Somebody provided me with information showing that a payment made of about Ksh91 million to an entity, which was nonexistent. I won’t go to all the details, but I called the minister concerned, sometime in February and I said ‘Sir, I think we have a slight problem that can be stopped because this payment is about to be made. This entity to whom you are making the payment does not exist.’
My argument, my position at the time was that if this comes to public light that we are giving Wycliffe, dishing out to Wycliffe all this cash and Wycliffe is manifestly incompetent to produce these goods or services, then it will undermine our credibility as an administration that had been elected on a platform of a fight against corruption. That was in February; and the matter died.
So I forgot about it, to be honest. My job was advisory. I have given advice. As far as we are concerned we have stopped the matter. The next thing I heard is the payment has been made to Wycliffe and the matter was raised in parliament by Kanu Member of Parliament - an opposition member.
So it was very embarrassing to us because we had known all along. I thought it was something we had stopped. It came as some embarrassment to me and to my memory it came as some embarrassment to the president as well. When I met with him I said, ‘This has happened we need to move on it because this is our first big corruption case within our administration.
And the way we deal with it…everyone is watching. If we make a mistake on this one then people’s confidence in us will be undermined.’ And he gave a go ahead for the investigation to be embarked upon which I wrote to the then Anti-Corruption Police Unit to embark on an enquiry which was started very quickly, very aggressively and it wasn’t long before we realized that this company – the Anglo Leasing – doesn’t not really exist. It was merely a holding address in Liverpool and it uncovered a myriad, a hornet’s nest, of very dubious transactions.
They had been used yes, during the Moi administration to defraud the Kenyan people of hundreds of millions of dollars of tax payer’s money.
There is an argument that is used that these are simply a Moi-era corruption-related transaction that was carried over into our administration.
And my response is, ‘If somebody gives you a bowl of porridge that you have just seen them eat and get very ill and you happen to take the same bowl of porridge there must be something you know about that porridge that I don’t know or the rest of us don’t give the glee and the efficiency, speed and enthusiasm with which you take it’.
There was a seamless transition in terms of the way these transactions were assumed by the new administration. Which meant the middlemen – the Anglo Leasings – were the same. I had changed perhaps but the rest remained the same. So we began to ask serious questions about it.
That caused considerable unhappiness and this was not … Unhappiness even though some of it came from the Moi administration it was communicated to me in various ways.
My attitude was that I was worried about us and our reputation. The previous administration did not have a reputation to protect vis-a- vis against corruption.
I was surprised that senior figures around me, and around the president…went to considerable lengths; went out of their way; bent over backwards; stopped what they were doing to protect these transactions despite the fact that the more we dug the more dubious transactions were.
That was very unusual to me. The person who communicated this unhappiness in the most consistent way was Kiraitu Murungi. And at that time, remember, we were partners. I felt we were working together. Only to realize later that we were not.
Speaking of Kiraitu Murungi, he was of course a key player in the Kibaki administration and in the fight against corruption just as you were. He is currently Energy Minister; then, he was Minister for Justice and Constitutional Affairs. A book has been written about him, a kind of official biography, if you have read excerpts of this book in the local press or got your hands on a copy…
I haven’t managed to get a copy, yet.
Well, you have been mentioned in the book. It is titled, “Kiraitu Murungi an Odyssey in Kenyan Politics”. Is there anything that has been said about you, for which you would like to give an alternative narrative? For example, he may have said something that you consider to be misleading. Or maybe there is something he said you would like to concur with...
Mr. Murungi in this book alleges that he invited me out of the goodness of his heart to discuss with me the matter of a loan in which my father had defaulted.
A matter that had been brought to his attention by a local lawyer. The tone that he uses there is not entirely correct but I’m not going to contest it at this point.
Only to ask the question here, because there is a fundamental dishonesty in the characterization of the exchange that we had over some days with Mr. Murungi about this matter.
Because first of all the issue that he was bringing to my attention had nothing to do with my official position as a Permanent Secretary in the Kenya government; it had nothing to do with any of the enquiries that I was currently carrying out at all until he presented it. I was very surprised.
He calls me; says it’s urgent; so I rush to his office and in front of me there sits my father’s file – a personal file, a legal file, which he should not have.
He should not be in possession of the file. But he has the original. And I went through it and copied it. And he knew the case better than me. So clearly he had taken considerable time to appraise himself of all the facts.
Naturally I was upset first of all and felt a sense of betrayal. Because his essential position was: you are investigating many things, stepping on my toes, I have come under considerable pressure.
That was a narrative he had been pursuing for several months: considerable pressure from people within government and people around including the president’s personal assistant and especially the Minister of Internal Security; pushing it harder and harder that this money was their money. And because of my intervention treasury has refused to release the money.
My argument was, to whom are we releasing the money? Instead of answering the question, I’m presented with what is a personal situation here to which the point that is made …
I’d like for you to clarify something, this file and the contents thereof had nothing to do with the government whatsoever?
None.
It was between two private individuals
Correct
So really it was up to the two private individuals to resolve it
Correct
Nothing to do with your position as PS of Governance and Ethics and nothing to do with Kiraitu Murungi’s job at all?
None.
Nor would it have come to your attention in your everyday work. I mean people owe money every day. People repay debts everyday…
I know, I love my father so knew he had debts and I never had an inkling that he would have a debt to that that chap called Anura Pereira, whose name had been raised severally by Kiraitu Murungi and others in a range of transactions some of them which were under investigation actively.
How the two came to be the subject of discussion, huddled in a corner, in the evening, in the office of the Minister of Justice and Constitutional Affairs who has far more important things to do as he says in his book.
That he was willing to spend a considerable amount of time on this…the most important thing was that his understanding of the file far exceeded mine.
It so exceeded mine that I asked him, ‘Please could you share with me the file so that I can take it so I can apprise myself of these facts. However I was categorical.
This idea of “going slow” or “relieving the pressure” on the instigations that were ongoing in exchange for this loan being forgiven was not something that I could consider at all. I would like to make that as categorically clear as possible. So I find the characterization that I have read in the serialization of the book to be disingenuous and dishonest.
So if you were speaking to Kiraitu Murungi about his book - say he was sitting right here, next to you. What would you say to him?
Shame on you. Shame on you.
This is one of the brightest men we ever had in the reform movement in this country. If you read some of the writings that Kiraitu wrote in the 90’s published by the Kenya Human Rights Commission…there are very few people, in terms of just intellectual veracity, commitment to the rights of Kenyans and the reform agenda…there was no one who was more eloquent than Kiraitu Murungi.
There was no one who at the beginning in the fight against anti-corruption when Narc came to power, who was more consistent. Even in defending me.
That I will give him. Absolutely consistent and with a capacity to translate the abstractions into reality. I would give him that. And when I look now were we are; where Kenya had come to where we almost had a civil war in 2008 because of the combination of promises that were not kept one of the promises being to fight corruption.
One of the other things promised being to have an inclusive administration that includes people from all ethnic groups. And to see his attempt at trying to rewrite history with regard to his particular role in this particular incident that he had described in one of the other papers is shameful.
Is it something you can understand? He was one of the most idealistic young politicians in the 90’s. You are now describing a defender of the status quo and a facilitator of the Moi-era status quo at least in terms of government contracts. How do you explain a change like that? And how did you resist the temptation you must have had to fall in line?
I don’t know, I cannot say I have an understanding of what goes through the mind of someone like Kiraitu, I would be lying and I don’t want to put words in his mind or try to understand his thoughts.
I do remember however, in September of 2004, I think this is an incident which is clear to me. He had travelled to China and he came back and he had told me he had learnt the philosophy of Tao while he was in China. He looked very deflated. And he had decided not to fight anymore.
So I said, What do you mean? He said, ‘It is not worth it, this fight. Because all rivers lead to the sea. No matter how they twist and turn and meander they all head to the sea.
This thinking that we can push it directly to the sea will not yield anything.” For me that was a breaking point. That I remember very very clear.
How did you resist the urge to falling line as well? What message would you give someone who is in office now has aspirations to play a similar role as you did within government.
Look at the cost we are paying. Just look at the cost we are paying. I have a friend who describes us Kenyans as warthogs with short memories.
A warthog will run away from a leopard and after a few minutes of running forget and run in the opposite direction heading right back to the leopard mouth.
We are paying the price for lying to ourselves as Kenyans even now, Kenya is a country on the brink of a takeoff or a collapse there is not going to be any ambivalence with regard to Kenya.
I would like to think that we are on a brink of a take-off because there are certain huge decisions that are before us with regard to the constitution and the elections, major reforms that are underway and I think that abandoning some of the reforms that were at the heart of Narc administration lead to the contradictions that face us today. When I travel around the country it reminds me of the story of Faust, it is a 13th century story of a German. It is told in several ways; I’m not sure which the most accurate one is.
It is always the same kind of story which is there was this guy who wanted wealth, fame and fortune and he wanted it very badly. So the devil sent one of his most powerful demons, Mephistopheles to go down and promise him ‘If you want this I will give it to you but after 20, 40 years I shall come back and own your soul.’
When I travel I ask Kenyans, Is that us? Did we do that? Did we have the opportunity at independence when some of our neighbours were struggling to stay true to the promises they had made to their own populations who had struggled for independence in terms of equitable distribution of resources, distribution of public positions, implementing of policies to ensure that growth and development is shared by entire populations.
Did we abandon that? Did Kenya’s primary ideology become greed?
Thereby in 2008, Mephistopheles returned to Kenya and said, ‘I have come for my soul. We made a deal and I’m back’. There is a friend who said, “John you are a superstitious African who believe they pay for their sins in your own lifetime.” And perhaps that is what we as Kenyans are doing.
But how does one resist? I had a particular problem because I had been involved articulating anti-corruption positions in writing, for a long period of time. I had been involved in anti- corruption organizations – and then got sucked into the government.
Then I was faced with a situation where corruption is being perpetrated and encouraged by individuals who you thought were allies and it is all around you.
Now I never went to government thinking there is no corruption: there is always going to be corruption. I was surprised by the scale of it. To the point that today, there is really no senior government officer who talks about fighting corruption. Because you know you will be laughed at because it is not something you can say with a straight face.
That is unfortunate because there is a price to be paid. And the price to be paid in Kenya with our particular type of colonial history and our inequalities which are very ethnicized is to worsen our politics along ethnic lines.
And that price we are paying even as we sit here today. We can talk about the procurement of very important items necessary for the transition, that we are about to go through but we are stuck in the mud. Deep down everyone knows this.
Have you any regrets about how you handled Anglo leasing? Do you wish you had handled it differently? You paid a huge price with the exile ….what not?
The moment you are in a situation where you are surrounded by people of power and you are opposed to activities that they are engaged in that they have a hand in, that they are profiting hugely from, then vindication and loneliness is part of your course there is no room for saying would you have done it differently? You are either with them or against them.
So there never was any other option?
There was no middle road, I mean we had our situation for a few months in 2004 where money was being paid back by these Anglo Leasing entities.
Who are these people paying back? To this day we have never been told who these people who are paying back this money are. But even when this administration goes, those questions have to be answered because we would find that this baggage will continue to undermine our efforts at moving key elements of our reform process forward unless we can deal with them and deal with them conclusively.
If you look at the entire coast and the way it has become a very and unfortunate and ugly situation, I believe Narc had the credibility and legitimacy to engage issues at the coast with the trust and confidence of the local communities there.
That is the price we pay. Vilification, once you take the job? Get used to it. When I was in government I used to walk down corridors in government ministries and people would jump into their offices to avoid me.
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