Persons named in NYS scam want DPP to order fresh investigations, Mugwanja fired

Some time in October last, we reported to you how investigations into the NYS scandal had been bungled by the head of the Banking Fraud Investigations Unit Mr. Joseph Mugwanja. Today, with new revelations into the scam, and the expose that Mugwanja bagged sh80 million for covering up the scam, ostensibly on the instructions of former Devolution CS Anne Waiguru, focus now turns to the Director of Public Prosecutions Mr. Keriako Tobiko.

Already, Mr. Tobiko has revealed that 11 suspects, curiously excluding Mr. Mugwanja, will be charged with the offence of money laundering in the sh791 million scam. Tobiko’s office, which has often been referred to as a ‘revolving door’ for the corrupt, is finding itself in a very awkward position in the ongoing saga.

Already, there are murmurs in the manner the DPP office deleted the name of Deputy President William Ruto’s aide – Farouk Kibet – from the list of the people to be charged. In less than an hour, the DPP provided two lists of people to be charged, deleting Farouk Kibet’s name and claiming the inclusion was a ‘human error’.

Be that as it may, the elephant in the house is how DPP intends to use ‘investigation report’ from Mr. Mugwanja to successfully prosecute the NYS scam.

Documents seen by Kenya Today reveal that apart from Ms. Josephine Kabura, who has so far badly destroyed Anne Waiguru with her ‘saying-it-as-it-happened’ affidavit, which has so far led to the Ethics and Anti-Corruption Commission (EACC) re-opening the saga once again despite recently dubiously clearing Ms Waiguru, all the 11 people named in the scam want not only Mr. Mugwanja fired from bungling the investigations but also urge that he be committed to a long prison sentence.

As early as October, one of the persons charged, a Mr. Kago, had warned that the manner Mr. Mugwanja was conducting the investigations was meant to cover up for the real culprits. In a letter directed to him, Kago warns of the consequences of a discredited investigator.

“We take the view that your conduct in the purported investigations is in itself not only criminal but borders on reckless abuse of powers bestowed on you as it clearly demonstrates your intention to shield the real culprits to hide the proceeds of their criminal activities at Nys by tipping them off,” Kago had warned. “As you deliberately bungle your investigations, you are assisting real culprits escape prosecution while at the same time quite shamelessly widen the net of your investigations to swallow in innocent third parties,” he said. 

In Kabura’s affidavit, which is now widely publicized, Mugwanja’s actions – including stage managing arrests, warning of planned EACC swoops etc – are graphically narrated. Mr. Muganja so bungled the investigations that when he was done, the one person who got vindicated was the very person at the centre of the scam -Anne Waiguru.

At the crux of these demands is the question: How will DPP successfully prosecute a scam where the lead investigator is himself under probe for dipping his hands in the corrupt cookie jar? If, as Josephine Kabura’s affidavit indicates, Mr. Mugwanja received a whooping sh80 million; who was he covering? And why?

In a letter to the DPP,  advocates of some of the persons named in the scam warn the DPP against potential miscarriage of justice if he goes ahead to use Mugwanja’s ”bogus and deceptive” investigations to charge the culprits.

“Our client is utterly shocked and is strongly opposed to the recommendations because of the suspicious manner in which the investigations that gave rise to these recommendations were carried out. The purported investigations initiated at the behest and instigation of former Devolution and Planning Cabinet Secretary, herself a suspect, through the Directorate of Criminal Investigations and [the] stage-managed Kangaroo-like investigation under the supervision of the Banking Fraud Unit led by a Mr.Mugwanja were bogus and deceptive and cannot be the basis of any legitimate criminal process”.

Already, there are those who believe anyone who Anne Waiguru, while she was still powerful, wanted fixed in the scam, was fixed. Those who have followed this scam from the beginning know that Ms. Kabura was a decoy, a pawn in a multi-million shilling scam whose centre was occupied by none other than CS Anne Waiguru. But it is the actions of state institutions in the scam that should annoy whoever thinks President Uhuru’s war on graft would amount to anything tangible.

The challenge in fighting graft in Kenya is a challenge of holding big fish accountable. In the NYS scam, while we’ve seen very small fishes being paraded in courts and in the press, there is still a big fish – Ex-CS Anne Waiguru – out there. Investigations into the NYS scam which leaves CS Anne Waiguru unscathed are mere choreographies meant for public relations purposes.

Such investigations are like the ‘D’ in Django.

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