Sh300bn loss linked to fraud

Extravagance, fraud and long outstanding balances in government expenditures are among key issues that led to the loss of billions of shillings during last year’s financial year, a report by the Auditor-General reveals.

The report was tabled before a special session in the National Assembly on Tuesday and revealed that a third of the government’s expenditures could not be accounted for due to unsupported evidence.

State House, for instance, used over Sh145 million for fuel, oil and lubricants, while over Sh1 million paid subsistence allowances to State House staff.

MOTOR VEHICLES

State House also used over Sh44 million in buying and repairing motor vehicles.

According to Auditor-General Edward Ouko, the Sh13,574,804 used in the repair of vehicles should have been charged under Routine Maintenance of motor vehicles and other transport equipment.

“No explanation has been given for the unauthorised reallocation of funds,” the report reads.

The report also reveals that expenditure totalling Sh131,066,524 out of Sh181,250,065 incurred on Other Expenses could not be confirmed due to absence of vouchers and inadequate documentation such as supplier’s invoices.

The report also revealed that State House had long outstanding debit and credit balances totalling Sh48,007,208 and Sh61,116,860 respectively.

“No explanation has been provided for failure to clear the long outstanding balances from the department’s records,” the report said.

About Sh4 million could not be accounted for during the construction and refurbishment of State lodges and State House buildings in Nairobi and Mombasa.

In the Ministry of Foreign Affairs, bills amounting to more than Sh79 million were not paid during the financial year 2011/2012 and were instead carried forward to 2012/2013.

“Had these bills been paid and the expenditure charged to the accounts of 2011/2012, the Appropriation account would have recorded a reduced net surplus of Sh122,283,888.45 instead of an amount of Sh201,357,341.35 now shown,” the report read.

Joseph ole Lenku introduces new security plan

The government is working on new community policing to curb runaway insecurity, Interior Cabinet Secretary Joseph ole Lenku said on Wednesday.

Mr Lenku said this would be the Nyumba Kumi (household cluster system) practised in neighbouring Tanzania. (VIDEO: Govt turns to clustered homes plan)

Under Nyumba Kumi, each Tanzanian is required to know people living in 10 houses around them and what they do for a living. It was established by Tanzania’s founding President, Julius Nyerere.

Mr Lenku has, therefore, asked all county commissioners to start implementing it.

On Monday, he said that this would help step up security and assist in smoking out criminals, including terrorists.

Mr Lenku told security chiefs to ensure the current system of villages under a village elder is restructured into 10 household units, with a clear leadership that will be responsible for the security of the households.

“As regional coordinators and county commissioners, you should urgently mobilise and sensitise your grassroots staff to immediately embark on the implementation of the concept as a strategy to enhance security,” he said in Nairobi.

“The concept will be rolled out in both rural and urban areas with the aim of encouraging Kenyans to know their neighbours.”

In Tanzania, each village elder is required to know people in 10 houses around them and what they do. In this arrangement, families are required to provide information on their visitors, where they came from and their stay period.

The system makes it easy for residents to know each other.

Raila Odinga’s New Book- The Flame of Freedom

In The Flame of Freedom, his autobiography to be launched in Nairobi on Sunday at the KICC, Mr Odinga paints a picture of five years of torment at the hands of his Party of National Unity (PNU) partners. They appeared bent on frustrating and humiliating the Orange party wing at every turn, from the day the National Accord was signed in February 2008.
Sources of conflict included the extent of Mr Odinga’s powers and his position in the government pecking order, the size and composition of the Cabinet, dealing with the Mungiki menace and the fight against corruption.
Mr Kibaki fired the first salvo, apparently meant to show that he was in charge, with a letter appointing Mr Odinga to the post of Prime Minister, weeks after the signing of an internationally mediated 50-50 power-sharing deal that brought an end to the violence that followed the disputed December 2007 presidential election.
“On April 13, 2008, I received a four-page communication from the Office of the President,” writes Mr Odinga, who now leads the opposition Cord. “It was dated that day, marked “Confidential” and, to my amazement, was headed “Letter of Appointment for the Prime Minister”.
The letter, signed by Mr Kibaki, detailed the PM’s roles and responsibilities. Mr Odinga declined to sign the letter.
“I was astonished that such a letter could be sent by one Principal to another in a coalition of equal partners. Under the [National] Accord, Kibaki and I were in a power-sharing arrangement, and I found it preposterous for one Principal to purport to be appointing the other, and to be spelling out his duties,” Mr Odinga says in The Flame of Freedom.
But that, according to Raila’s book, was just the beginning of what would be a tumultuous political marriage. The next source of tension was a statement released by then head of Public Service, Francis Muthaura, indicating the pecking order in government.
Mr Odinga writes in The Flame of Freedom, that the hierarchy placed the President on top with Vice-President Kalonzo Musyoka second. Mr Musyoka of ODM-Kenya (now Wiper) was a distant third in the 2007 presidential election and had joined the PNU side of the coalition.
“I as PM would be number three, with the title ‘The Right Honourable’. My coalition partners were apparently determined to cut me down to size at every turn, but I considered the fact that they felt compelled to do this showed their fear of the Accord and of the equal partnership between Kibaki and me under the Grand Coalition Government,” says Mr Odinga.
Citing the law that recognised him as co-principal, Mr Odinga rejected the pecking order. The Flame of Freedom details how the weeks that followed were marked with a public display of power intrigues.
Mr Odinga said the practice of calling him to address public meetings before the Vice President spoke and then invited the President was meant to frustrate and humiliate him.
He gives two examples of events in the Rift Valley in 2009 when he was forced to publicly object to the practice and insisted that the VP speak first, by inviting him to address the gathering and then invite the President.
Another was at a rally in Eldoret: “The organisers had planned a repeat of the previous day’s slight to me, and called on me to speak before the VP. I objected, and said the VP should go ahead of me. It became a tense and ugly public scene when Kibaki intervened and said that, no, I should speak first.”
In the end, Mr Odinga took to the podium and explained himself, winning the supremacy battle.
“The President’s men from the outset were determined to pay little more than lip-service to the power-sharing arrangement spelt out in the Accord, and the partnership started out on the wrong footing. As the weeks went by, it seemed that instead of dealing with the bigger issues, we were increasingly forced to engage in turf wars,” writes Mr Odinga.
CABINET BATTLE
But it was in the formation of the coalition Cabinet that a full-blown battle would take place. The National Accord did not specify the size of the Cabinet, only stating that there would be portfolio balance and that both sides would share positions on a 50-50 basis.
President Kibaki had already unilaterally named his “half” of 17 ministers, meaning the Cabinet size would have to be large enough also to accommodate 17 ODM appointees. Mr Odinga said his party in fact wanted the total number capped at 24, but PNU had other ideas. “We were shocked. Kibaki now wanted 24 posts, which would mean a bloated Cabinet of 48 ministers.”
But even after agreeing on the Cabinet size, the two sides started wrangling over who would get plum appointments to Internal Security, Local Government, Finance, Roads, Foreign Affairs, Agriculture and Energy dockets.
“Our side argued that, since PNU, with the President as Commander-in- Chief of the armed forces, would be taking Defence, ODM should have Internal security as a counter. The OP was insisting on having Local Government, so we said we wanted Finance,” he writes.
The endless negotiations caused further anxiety and Mr Odinga says his side of the coalition had eventually to cede some ground “in the best interests of the country”.
Mr Odinga says, “PNU had also begun under-the-table negotiations with several of my Pentagon [ODM top leadership] members, making them offers they were finding difficult to refuse, and some were even beginning to soften. Najib Balala came to me to plead that we should take the deal and move on. The others, [Musalia] Mudavadi, [William] Ruto, Charity Ngilu and Joe Nyagah, were likewise not averse to making a deal.”
At a point in the course of the negotiations, Mr Kibaki asked everyone else to leave the room at State Lodge, Sagana, where discussions were taking place, and leave him alone with the PM.
Mr Odinga recalls President Kibaki saying that, having spent many years at the Treasury, he was the de facto Finance minister and wanted to retain the docket, which was supposed to go to ODM for “balance”.
Mr Odinga writes: “Kibaki put all this in a way that made it difficult to say no. Here was an old man, practically on his knees. So I said I understood, but in that case, ODM should get Local Government.”
Mr Odinga says instead of being treated as an equal partner, he was increasingly being regarded as the “head prefect”. He also thinks the Cabinet was “too large and too unwieldy to transact any business efficiently”. The Flame of Freedom lends credence to the belief that ODM ministers were being undermined by PNU-leaning Permanent Secretaries (a position since renamed Principal Secretary).
“Certain crucial projects that would have promoted ODM’s image were being sabotaged. These instructions were coming from the Office of the President. I received continual complaints from the agriculture, lands, water, immigration, local government and roads ministries. In health services, Minister Peter Anyang’ Nyong’o went as far as demanding the replacement of his PS.”
The former PM also accuses the Treasury of delaying project funds and Mr Muthaura of bypassing the PM’s office to issue directives on behalf of the President to Cabinet ministers on how to perform their functions. He says he initially raised the issues with President Kibaki, but the frequency of their one-on-one meetings began decreasing as part of the obstacles placed before him.
Mr Odinga says he did not want to be a lame-duck PM and he consulted widely on his role. “In (2008) July, I was invited to visit the UK by the British PM, Gordon Brown, and one department we visited there was the PM’s Delivery Unit.” Some of Mr Odinga’s staff subsequently went to the Unit for training.
Mr Odinga says his vision for the PM’s office was that it should play the role of “catalyst in injecting efficiency into management of the government, so that it could deliver on its campaign promises”.
He describes how “People in the OP were initially resistant. They mistook my enthusiasm concerning change and positive development for an attempt to duplicate government activities and ‘take over’.”
The former PM says he found President Kibaki “stiff and unresponsive” when he went to discuss the strategic plan for his office. “I knew Kibaki from working with him previously and I understood that pressing him further would be futile. So I told him I was going to get the staff from his office to work with my people to revise the draft.”
HOSTILE RECEPTION
Mr Odinga also says in his book, that his pledge to dialogue with the Mungiki sect soon after being sworn in as PM received a hostile reception from Mr Kibaki’s side. He describes a meeting with the President in the OP soon afterwards as a tense affair, with Mr Kibaki clearly angry at his decision.
The ex-PM says he had raised questions about the alleged extrajudicial killings by police of suspected Mungiki members and got support from the US embassy for the FBI to be brought in to investigate the killings.
As the coalition struggled to remain together, it seemed destined to lurch from one crisis to another. The restoration of the Mau Forest, for example – which some analysts have said cost Mr Odinga and ODM significant support in the Rift Valley – was yet another area of conflict.
Having agreed to go ahead with the project at Cabinet level, some ministers, notably the then Agriculture minister William Ruto, now Deputy President in the Jubilee government, disowned the project during visits to the area.
“They went to the area and incited title-less settlers in Phase Two not to leave until they had been paid compensation. The agitators ferried forest families to makeshift camps, called in the media, and blamed the ‘inhuman’ exercise on me. A compliant media went along with it, regrettably too lazy to research the facts, or too inept or partisan to point out this was a necessary and collective Cabinet decision to which everyone was party,” he writes.
The Flame of Freedom book will be launched on Sunday at KICC, Nairobi. The chief guest at the event is former Nigerian president Olusegun Obasanjo

President Uhuru Kenyatta puts incompetent state officers on notice

President Uhuru Kenyatta has put on notice civil servants sleeping on their jobs asking those who are not equal to the task to leave.

He said the government will not tolerate incompetent officers who cannot deal with challenges slowing delivery of services to Kenyans.

“It is irritating to observe that part of our national challenges is caused, not by unavoidable or elemental phenomena, but sheer incompetence and corruption by people who ought to know better.  This mediocrity lies to waste the efforts of committed, diligent and professional public servants and inflicts misery on thousands of taxpaying Kenyans,’ he said.
“It is not desirable at this stage of our journey to progress, to be obstructed by characters who give no value for public money spent on them.  The time has come to detect and cull them.  On the other hand,” he added.
“If you find yourself suited for the call, I assure you of my government’s full support going forward.  My Administration will recognize and reward those who are conscientious and hard working.”
Uhuru said his administration has outlined government’s goals and will be rewarding success and heavily penalizing failure. “The government will no longer refuge to loafers and joy riders,” he said.
From the 2014/15 financial year, Government will simultaneously conduct public consultations on Medium Term Expenditure Framework and Plan targets.  This means that the consultations will happen at the same sitting.  The public will have a sit at the table when the consultations happen.  “We will, therefore, have a smooth cycle starting with planning, then resource allocation and tracking of results, concluding with a Government framework of rewards and sanctions for the public service.”
The President was speaking during the launch of the second Medium Term Plan.
The Medium Term Plan is the basis for ministerial strategic plans, which in turn guide the performance contracts. The Second Medium Term Plan of Vision 2030 will run on the theme, “Transforming Kenya: A Pathway to Devolution, Socio-economic Development, Equity and National Unity.”  It carries on the system of incorporating critical aspects of each governance pillar at each phase of implementation of Vision 2030.

President Kenyatta orders inquiry into mall terror attack

President Kenyatta on Tuesday ordered the establishment of a commission of inquiry to investigate the Westgate Mall terror attack.

At the same time, eight body bags were delivered to the City Mortuary from the ruined mall. The number of those missing has also been revised to 28, although no official announcement has been made.

The commission, the President said, would seek to address the security lapses that could have led to the terror attack even as he maintained that Kenya Defence Forces would not pull out of Somalia.

The President, who was speaking at the Kenyatta International Conference Centre during an Inter-Religious Council prayer service for the victims of the attack, did not indicate when the commission would be set up and its membership.

It will likely seek to establish whether National Intelligence Service reports had warned that Al-Qaeda-linked Al-Shabaab terror group planned to attack Kenya and if adequate measures were put in place to prevent it.

Interior Cabinet Secretary Joseph ole Lenku has declined to respond to the allegations, saying intelligence matters could not be discussed in public.

Other claims include that elite squads of the GSU and the military which responded to the attack did not have a common assault plan resulting to fatalities from friendly fire.

The collapse of a section of the mall and reports of looting have also placed the military on the spot.

IN FOR THE LONG HAUL

A tough-talking President Kenyatta said terror attacks would not deter the country’s efforts to stabilise Somalia, adding that KDF was in the war-torn country for the long haul. (TIMELINE: A history of terrorist attacks in Kenya)

Al-Shabaab has demanded that Kenya withdraws its forces of face more terror attacks. “I want to be categorically clear; we will stay there (in Somalia) until they bring order to their nation. We will not be intimidated. We will not be cowed. If their desire is for Kenya to pull out of Somalia, all they need to do is what they should have done 20 years ago which is put their house in order and we shall come back,” said the President amidst applause.

As he spoke, forensic teams recovered more bodies. It is not clear whether the eight bags taken to the mortuary contained different victims.

Earlier reports said three bodies were taken out of the rubble. One was thought to be that of a KDF soldier because of the remains of his uniform and a G-3 rifle similar to those issued to soldiers deployed at the mall. It was taken away at around 1pm in a military ambulance.

Meanwhile, the UK High Commission spokesman John Bradshaw on Tuesday discounted reports that foreign experts had been barred from collecting crucial evidence.
“None of this is correct. The relationship between the UK Metropolitan Police and the Kenyan CID is excellent,” Mr Bradshaw said.

An official at the American embassy also discounted claims that US experts had been barred from accessing crucial information.

Deputy President Ruto ICC trial resumes

The trial of Kenya Deputy President William Ruto at the International Criminal Court resumes on Wednesday.

The Trial Chamber V(A) had adjourned proceedings to allow Mr Ruto to travel back home in the wake of the Westgate Mall terror attack.

The defence for Mr Ruto had asked for the trials to be adjourned until October 14, a further two weeks on top of the one week the chamber had granted Mr Ruto last week following the terrorist attacks.

However, the Chamber rejected the application.

"The Chamber will partially grant the request. The adjournment is until Tuesday October 1 and the hearings to continue on Wednesday October 2,” presiding judge Chile Eboe-Osuji ruled last Friday.

The first prosecution witness is expected to continue with her testimony during a closed session.

More pain as VAT pushes up cost of living for Kenyans

The new Value Added Tax (VAT) Act increased the cost of living in September by a bigger margin. Inflation rate went up for the sixth consecutive month in September to 8.3 per cent from 6.67 per cent in August.  This coupled with an increase in fuel prices mid September resulted in steep rise in the cost of living.

Data by the Kenya National Bureau of Statistics ( KNBS) shows that the cost of food and other general items went up 2.87 per cent in September. The price of books and magazines went up by 6.62 per cent. Other items that went up include electricity and cooking.
Essential commodities
The surge in prices of the items was largely due to the enactment of the VAT Act 2013, that imposed 16 per cent VAT on essential commodities that included processed milk.
The new tax came into effect September 2. “The implementation of the VAT Act and seasonal factors affecting supply  of common food crops were the main causes of rise in the food index…,”  said  KNBS statement.
“In aggregate, rises outweighed falls in the average prices of various food items,” Notable is the price of milk that went up 22 per cent to retail at Sh57 per 500 millilitre, up from an average of Sh47 in August. Kenya Revenue Authority has since removed processed milk from the list of VAT exempt items. In turn, milk processors have reduced the price of milk to Sh45 per half-litre. The inflation rate is way above Central Bank’s medium-term target range of five per cent.
Other factors that caused a rise in the general price of goods and services include an increase in the retail price of fuel mid-September.  Prices of diesel, super petrol and kerosene went up by an average of Sh2 per litre of each.
“The recreation and culture index went up by 6.62 per cent over the same time mainly due to increases in the costs of newspapers, books and magazines among other items,” said KNBS. “Similarly, on account of notable rises in the prices of cooking gas, kerosene and other cooking fuels, the housing, water, gas and other fuels index rose 0.87 per cent.”
“Likewise… the transport Index increased by 0.77 per cent mainly due to increases in the public transport fares that were attributed to higher prices of petrol and diesel.”
Devolution and Planning Cabinet Secretary Anne Waiguru yesterday said the government sought to keep inflation within the single digit. “At the macroeconomic front, Kenya will seek to maintain inflation below double digits,” she said at a conference in Nairobi.

Westgate Mall victims to miss out on compensation for lack of terror cover

Businesses that have not insured against terrorism, including those at the Westgate Mall, will have to bear with huge losses and costs.

This is despite  terrorism cover being one of the cheapest in the market.  Insurance industry players yesterday warned that those who lost properties and were not insured against terrorism will mostly likely not be compensated.
Association of Kenya Insurers  Chief  Executive Tom Gichuhi said the uptake of terrorism cover in the country, which is being offered by about 20 companies, is still low.
 This has led to huge loss of properties damaged in terrorist attacks. “In the Westgate Mall incident, if vehicles and businesses were not insured against terrorism they will not be compensated,” he said.
Seek payment
Gichuhi made the remarks yesterday during the opening of the third insurance village at the Nairobi International Trade Fair grounds.
 “Currently we have between 15 and 20 insurance companies offering terrorism cover,” he said. “However, not many consumers have embraced the product; they are only rushing to seek payment when terrorism attacks their properties.”
He said demand for the cover is expected to go up after the Westgate Shopping Mall attack. Two days after the incident at Westgate, clients started calling underwriter offices reporting damage to their vehicles, businesses and tools of work as well as to seek compensation.
But by yesterday, it emerged that most people may not be compensated from the losses incurred. Underwriters will most likely apply the proximate cause principle.
This means that if a car was insured against theft or fire, the owner may not be compensated by his insurance company even if it got damaged through an inferno while parked at the ill-fated mall.
This also applies if a car was stolen in the confusion arising from the attack.
Insurance Regulatory Authority Chief Executive Officer and the Commissioner of Insurance Sammy Makove said the demand for the terrorism cover is likely to go up.
This is as people realise the importance of widening their protection cover. “We expect more uptake of terrorism cover in the near future. This will help them avoid incurring losses in case their property is damaged in a terrorist attack as happened in the Westgate incident,” said Makove.

Changing dynamics
Insurance industry captains say the terrorism cover ought to be embraced by more businesses owing to the changing dynamics in the global markets.
UAP Managing Director James Wambugu said the price of the cover is small compared to the total rate of the sum insured of the other products. “For example, if a client is paying four per cent of previous premium for a vehicle he or she needs to add 0.25 per cent as cost of the terrorist cover. This makes it the cheapest product in the industry,” said Wambugu.
He said even individuals who have covers on various issues, for example, personal accidents, can still widen the cover to embrace terrorism.
 Makove said the insurance industry has a low market penetration level of 3.1 per cent compared to the global benchmark of more 6 per cent.
However, Kenya is doing better compared to the rest of East Africa.  The regulator boss called on industry players to simplify the language used for the products.

Pan-African bank says Kenya economy strong despite security setback

Kenya has the capacity to absorb the shocks it has been dealt in the recent months and analysts say the economy will achieve projected levels economic growth.

According to African Development Bank ( AfDB) the economy has fundamentals in place that will cushion it from devastating effects or even slow economic growth.
A senior government official also noted that the economy would only suffer a minor setback in the short term and would soon be back on accelerated growth track.
The terror attack at Westgate Shopping Mall that has seen key tourist source markets warn their citizens on travelling to Kenya and the fire in early August that burned down the arrivals terminal at the Jomo Kenyatta International Airport ( JKIA), were expected to deal significant blows especially to the tourism sector.
It was also feared it would dampen the mood among investors planning to put their money in Kenya.
AfDB’s Regional Director for the East Africa Resource Centre, Gabriel Negatu, said Kenya’s economy had in the recent past become increasingly diversified, with different sectors making significant contributions, a factor that has made it more resilient.
Long term
“There will be short term shocks but the economy will be able to withstand these shocks in the long term. The shilling has for instance remained stable throughout last week which is a clear indicator that the fundamentals are right,” he said.
He observed that economy is also getting more diversified with different sectors now playing larger roles in the economy, making it well cushioned to withstand the shocks, adding, “The growth prospects are good.” Negatu spoke yesterday when the bank launched its African Economic Outlook 2013 report that projects the Kenyan economy to grow at between 4.5 per cent and 5.5 per cent this year.
The growth rate is however lower than the regional average, with Africa projected to grow 4.8 per cent in 2013.
The economy experienced moderate growth of between 4.4 per cent in 2011 and 4.2 per cent in 2012 and is expected to reach 4.5 per cent in 2013 and 5.2 per cent in 2014.
According to the report, having witnessed drastic currency depreciation and rapid inflation in 2011, the economy experienced stability for both indicators in 2012. The stability is expected to continue in 2013.
The bank expects inflation to average at 6.3 per cent this year and 6 per cent in 2014. This is against a Central Bank of Kenya’s of 5 per cent.The Government however holds the position that the economy will post a growth rate of over 6 per cent.

Devolution and Planning Cabinet Secretary Anne Waiguru said the government had put in place measures that would ensure sustained economic growth.
“There is a great deal of optimism in the economic performance in the current period, with an economic expansion of 4.6 in 2012 and projections of 6.1 per cent in 2013,” she said.
She said to ensure that the economy remains vibrant, the government is moving towards policies that will ensure less vulnerability to exogenous shocks by addressing structural challenges of the economy.
“At the macroeconomic front, Kenya will seek to maintain inflation below double digits and maintain debt at manageable levels and maintain fiscal discipline,” added Waiguru.
The AfDB report projects a 4.8 per cent economic growth rate for the whole of Africa in 2013 and 5.3 per cent in 2013.
East African countries are expected to post slower growth rates of 3.9 per cent in 2013 and 4.3 per cent in 2014.

Lawyers give Judicial Service Commission one-week ultimatum over Gladys Shollei saga

Lawyers have waded into the crisis at the Judiciary, warning the Judicial Service Commission (JSC) commissioners that they risk being sent packing if they do not resolve the stand-off with Chief Registrar Gladys Shollei.

The Law Society of Kenya (LSK) Monday threatened to initiate the removal of the current JSC members if they don’t determine the fate of Shollei in one week.
LSK warned that public confidence in the Judiciary was at stake following damning revelations that Chief Justice Willy Mutunga’s close aides had hatched a plot, with his blessings, to oust Shollei.
The LSK Council gave the JSC a one-week ultimatum to decide whether or not to remove the Chief Registrar, failing which they would petition the President through the National Assembly for the removal of the commissioners.
Speaking after a council meeting, LSK chairman Eric Mutua said although it was clear that the JSC had committed acts of misconduct in the past few days, it was the only body that could legally determine whether to remove Mrs Shollei or let her carry on with her duties.
“In the event that there is no determination on this matter and the fighting continues, the LSK will take up its obligation to petition for the removal of the commissioners,” he added.
The Standard last week reported that a team hand-picked by the CJ had drafted a ‘war strategy’ aimed at giving Dr Mutunga absolute power by ousting Shollei.
The mission was revealed in a detailed, six-page document titled, “War Strategy: The 31-Point Plan”, in which Mutunga is advised to kick out Mrs Shollei in order to reassert his allegedly diminished role in the running of the Judiciary.
The Standard obtained several email correspondences between Mutunga and the four-person team.
But even as the LSK leadership demanded an end to the wrangling in the Judiciary, it asked the public to distinguish the latest fight between Mutunga’s camp and that of Shollei, from an ongoing disciplinary process instituted by the JSC against the Chief Registrar.
“This is hurting the Judiciary as an institution and should stop. If it does not the credibility and the integrity of the Judiciary will be severely affected,” Mutua told reporters at a Nairobi hotel. The LSK said if the JSC decided the fate of the Chief Registrar, she would have her right to challenge the decision of the JSC in court or to abide by the same.
Only then can the process of removing the current JSC members proceed without affecting the rest of the judicial functions.

The LSK said though other institutions, including the police, the Anti-Corruption and Ethics Commission and Parliament had a role to play in the investigations, it was only the JSC that could deal with the disciplinary process against Shollei.
“If she is demanding to have a public hearing, that should be granted to her as she is entitled to it. However, other people should not derail the process,” Mutua said.
The LSK is represented in the JSC by lawyers Ahmednassir Abdullahi and Florence Mwangangi.
The JSC has 11 members. Two of them, the CJ and the Attorney General are permanent members who cannot be removed as long as they hold their respective offices.
Mutunga’s inner cabinet drafted the plan at the Norfolk Hotel in a marathon overnight session on September 20.
According to the documents, the initiative is the brainchild of Duncan Okello, Prof Joel Ngugi, Dennis Kabaara and Kwamchetsi Makokha. Mr Kabaara and Mr Makokha are not formally employed by the Judiciary.
Mr Okello is the Chief of Staff in Mr Mutunga’s office while Prof Ngugi is the head of the Judiciary Transformation Secretariat and the director of the Judiciary Training Institute.
Mr Kabaara is a financial analyst in the same office, while Mr Makokha, a columnist in one of the local newspapers, is currently engaged as a communications consultant in the Office of the Chief Justice.
The War Strategy Plan states: “By the conclusion of these activities and implementation of these strategies, the single most important driver of resistance to Judiciary Transformation (“Darth Vader” or DV) shall have been removed.”
“Darth Vader” is a monstrous character in the children’s movie, Star Wars and has been adopted by Mutunga’s kitchen cabinet as their nickname for Mrs Shollei, whom they claim has totally eclipsed Chief Justice Mutunga.
In the documents seen by The Standard, the four describe themselves as the “War Council” and the Chief Justice as its “Commander-in-Chief.”

The documents show that after initial prevarication, Mutunga signed off the plan via an email to the four on September 20, at 9:02 pm.
“As your commander in chief I say my generals, let us start the initial battles in this war. Let word go round those who we want to mobilise that the principle of the war has been accepted by the general,” reads his email.
The previous day, on September 19, he had indicated his readiness to accept the plan advanced by the four in an email he sent to Ngugi at 7:32 pm.
“Thank you for this war plan. I like its tone, angry, loyal, frustrated, but eyes on the prize, the transformation of the Judiciary. It is a great blueprint for battles ahead and I love it,” he said.
The strategy, the email exchanges suggest, has been weeks, if not months, in planning and seems to have crystallised during an evening meeting by the five on September 20, at Norfolk Hotel.
“I am frankly quite frustrated by your oft-repeated line that you are trying to protect the OCRJ (Office of the Chief Registrar of the Judiciary). Does the OCRJ ever protect you? Is your middle name “Fait Accompli”?  You must wake up and smell the coffee,” wrote Ngugi on July 28.

House team told Kenya Defence Forces yet to find bodies of five Westgate Mall attackers

The mystery of Westgate terror attack deepened Monday as it emerged that State has not retrieved five bodies of attackers who were killed last week.

The Kenya Defence Forces (KDF) Monday revealed to MPs that they suspected the gunmen had retreated to one corner, where they died and their bodies are covered by rubble.
“There is stench from the area covered by rubble and the military has informed us that they suspect the five bodies of the terrorists are stuck there,” Rongo MP Dalmas Otieno said.
Otieno said after touring the ill-fated mall, KDF had told them they were moving with speed to clear the rubble and recover the bodies, which will help forensic experts who were still combing the area to gather crucial evidence.
The revelation raises more questions over the progress of investigation to unearth the perpetrators of the terror attack that led to the death of 67 people.
On Sunday, Interior Security Cabinet Secretary Joseph Lenku reiterated the government’s position that five terrorists had been felled by gunfire but refused to divulge any information on whether the State was in possession of the bodies.
Special forces from KDF, Interpol and forensic experts from the US, UK, Germany and Israel and local investigators were still at the mall as the probe intensified.
 And Monday, a joint Parliamentary Committee of Defence and National Security began a probe into the Westgate attack, with claims and counter accusations between government agencies over the manner in which the operation was handled.
Intelligence lapses
The MPs say they will inquire into all questions that have been raised, from intelligence lapses and the operation that lasted for four days.
MPs will further seek to establish if the speedy deployment of the military derailed the operation, after a senior GSU officer who was commanding the elite Recce squad was fatally shot by what is said to be a ‘friendly fire’ by the military, at a time when police had taken control of 70 per cent of the mall and pushed the terrorists to one corner.

Defence Committee Chairman Nung’u Githinji and his National Security counterpart Asman Kamama said they will summon all top security chiefs involved in the operation and any member of the public who may have useful information.
The parliamentary committee has also extended its mandate to investigate massive looting in the mall in the aftermath of the attack after the public and police were ordered out.

Deputy President William Ruto trial resumes on Wednesday

Deputy President William Ruto returns to The Hague today after the Westgate attack for what is likely to be his last trial session this year.

 

The trial against Ruto and radio journalist Joshua Arap Sang resumes on Wednesday with no break. Initially, the schedule had provided for a break from October 4-14.  This now means that Ruto may be away at the International Criminal Court (ICC) for a whole month.

 “Hearings will continue on the week of October 7-11, 2013, contrary to what was initially scheduled, except for October 9, due to other proceedings that will take place in this courtroom,” Presiding Judge Chile Eboe-Osuji ruled last Friday in a status conference.
 Sang’s counsel, Katwa Kigen, predicted that they are likely to lose the ten-day break to compensate for the lost time.
This is because the trial against President Uhuru Kenyatta is set to open on November 12, and will alternate with Ruto’s trial every four weeks.
On Wednesday, the first prosecution witness is expected to continue with her testimony in a closed session.

Jubilee politicians step up campaign to have Uhuru skip The Hague hearing

President Uhuru Kenyatta is under pressure from his allies and supporters not to attend his forthcoming criminal trial at the ICC.

Uhuru’s political allies cite efforts by the African Union and regional presidents, who are opposed to trying a democratically elected president in a foreign land.
Yesterday, Nairobi Senator Mike Mbuvi Sonko, former Kamkunji MP Simon Mbugua and Jubilee county representatives drawn from Nairobi held a press conference to dissuade the President from honouring his date with the Hague-based court.
Embarrassing
“Kenyans overwhelmingly elected His Excellency Uhuru Kenyatta and his deputy William Ruto in the March 4 General Election, and it would be embarrassing to arraign them in court,” Sonko said.
The flamboyant senator said members of the Senate and National Assembly have since passed a Motion to withdraw from the Rome Statute, which should be a signal to the ICC that Kenyans are ready to chart their own cause.
Although President Uhuru has reiterated his co-operation with the ICC, the leaders argued that the Kenyan Constitution does not envision a situation where a sitting President is put on trial.
“What we are telling our President is that he should not at all travel to the ICC, having been elected by the people of Kenya to lead. Alternatively, ICC should drop the charges,” Mbugua said.

CORD leader Raila Odinga slams court verdict on Wetangula election

CORD leader Raila Odinga has condemned a court ruling that overturned the election of Moses Wetangula as Bungoma senator.

“Hakukuwa na haki. Ilikuwa siasa tu. Wameharibu muda wetu bure tukikaa kortini. (There was no justice. It was all politics. They have wasted our precious time in court.),” said Raila, who then made reference to the Biblical story of Jesus Christ who was led to the top of the mountain and asked by Satan to kneel down before him and the whole world would be his.
“Kama Yesu tunasema shetani aende mbali. (Like Jesus we say Satan should go far from us.) We cannot kneel before anybody. We won’t go to any other Kenyan court but the people’s court, who voted for our coalition and Wetangula,” said Raila in a thinly veiled attack on the Jubilee government.
But Musikari Kombo who filed the petition cut the forlorn figure of an underdog in the courtroom during the hearing of the case.
Kombo who sat at the benches was flanked by his wife and no other politician in tow, unlike Senator Wetangula who had the entire CORD brigade by his side.
Hitting out at CORD leaders for going around the town causing ‘unnecessary tension’, Kombo distanced himself from being prodded by the Jubilee Government and denied being their project, as the rival coalition leaders claimed.
“Did you see any Jubilee leaders with me in court? I was alone,” he said

Big blow for CORD as co-principal Bungoma Senator Moses Wetangula’s win overturned

CORD suffered a setback Monday after the only co-principal who made it to Parliament, Mr Moses Wetangula, was stripped of his Senate seat.

Wetangula had been elected Bungoma Senator as CORD co-principals Raila Odinga and Kalonzo Musyoka were locked out of Parliament after their unsuccessful presidential run in the March 4 General Election.

But yesterday, the High Court in Bungoma nullified Wetangula’s election, citing a litany of electoral offences after a successful petition by United Democratic Front’s candidate, Musikari Kombo.The judgment by Justice Francis Gikonyo threw the Coalition for Reforms and Democracy (CORD) into crisis, as Wetangula was also the Senate Minority Leader.

Arguably among the most closely watched and controversial poll petitions, Raila led a group of CORD MPs who sat in the courtroom as the verdict was read out.
Wetangula, also the Ford Kenya party leader, was slapped with Sh4 million costs of the suit. He becomes the first elected Senator to lose his seat through an election appeal. Raila condemned the court judgment, regretting it had cost the only elected member of the CORD Summit his seat.
Injustice exhibited
“The open injustice exhibited by the High Court was expected. Hakimu amefanya tu mambo aliyoamrishwa. (The Judge only acted on orders to nullify his election). After the Supreme Court threw away our petition after the March 4 polls, the only remaining elected member of the CORD Summit was Wetangula, they were aiming at him and now they have hit the target,” Raila claimed.
An elated Kombo, however, said: “The county residents had been denied justice and fairness in the March 4 polls. I am happy with the High Court’s verdict. The people now have an opportunity to exercise their constitutional right of choosing the leaders they want.” But in his ruling, Justice Gikonyo cited evidence supporting a wide range of malpractices, including double-registration, vote tallying manipulation, double voting, voter bribery and ballots pre-marked in favour of Wetangula.
The judge blamed the irregularities on Wetangula, Independent Electoral and Boundaries Commission and the County Returning Officer Madahanna Mbaya during the three-hour ruling. There was no evidence to show that Kombo was culpable, he added.
Lawyers Ochieng Oduol, Henry Mahakara, Amos Makokha and John Masinde represented Wetangula.

Kombo’s lawyers were Alfred Ndambiri and the late Peter Wanyama who was murdered two weeks ago. There was tight security before and after the ruling. Security officers had a hard time controlling the crowds that jammed the court.
The court heard that Wetangula was involved in voter bribery on February 22 in a Kanduyi hotel where 21 clerics were attending a political meeting. They were given Sh260,000 to influence them to vote for candidates aligned to CORD.

“The giving out of money amounts to bribery, which is against the electoral rules, which influenced the voting pattern of the voters to vote for some candidates. The integrity of voting was compromised and it did not amount to an accurate accountable, transparent election,” Justice Gikonyo said.
“Giving of tokens to voters is a serious electoral offence which should not be condoned,” he added.
There were also cases of discrepancies in filling out results in electoral forms that the court ruled amounted to electoral malpractice.
“In Kimilili, Bumula and Kabuchai constituencies there were no Forms 36 but the Returning Officer went ahead and announced the results. In Sirisia there was Form 36 but the returning officer only relied on one page to announce the results,” the judge said.
“It doesn’t matter the number of votes a candidate garnered; what matters is the integrity of the whole process. IEBC also played a role in the election malpractices,” Justice Gikonyo added.
At St Patrick Naitiri High School, a witness told the court that he saw the returning officer setting aside two ballot papers and also cutting the seals of the ballot paper. The officer was later arrested and charged with the offence.