It’s disquieting! Whichever way you look at it, the recently released report of the Commission of Inquiry on the Britam sale unearths suspected grand corruption and forgery at the highest level. But there is more!
Naturally, one should not idealise the intention behind setting up the commission or the choice of assessors, one of whom, Sattar Hajee Abdoula may be in a situation of conflict of interest as a former administrator of BAI. Nor should one undermine the timing of its release. We also all recall that the hearing of Dawood Rawat’s testimony was cancelled at the last minute on grounds that did not convince anyone. Rawat had crucial information that could have been used by the commission and which is even more relevant now in the light of its findings. The BAI, according to him, had two critical vetoes enshrined in the articles of association of the company: it was the only final decision authority for the appointment of the CEO and CFO – the two most important positions in any business. In other words, BAI had the right to control Britam through the election of its two most senior executive positions! Did those who disposed of Britam Kenya know about these two conditions which they could have used to push the price much higher than its value on the market? It’s a pity that the commission did not quench our thirst in that respect.
Be that as it may, and irrespective of the bias the commission may be accused of, and which could be used to fuel communiqués, statements and possibly be the basis for a judicial review, one fact cannot be denied: the evidence of suspected corruption has been established through facts and documents. Even if we did not dwell on the flowery, surprisingly literary language used, the documents – if they check out – clearly first debunk the claim of no foreign sales – repeated by ministers in parliament – and show that there was an offer from MMI Holdings Ltd (South Africa) at Rs4.3 billion which the Kenyans were asked to match, before a Rs2.4 billion agreement was settled for! Where the difference went is now up to the police to establish in its criminal investigation into forgery and the use of forged documents. You bet they will show much more efficiency than they did in the Kistnen murder case!
But more than the suspected fraud, corruption, forgery and abuse of power, what the report also highlights – and which is even more worrying – is that cronies and advisers took over the whole state and started playing with its laws at will. “Crucial decisions regarding the rule of law was [Sic] taken by political advisers…There is no record that the text was duly voted by the SLO…It is this legal aberration which culminated in the enactment of the …Insurance Amendment Act.”
Please forgive me for quoting myself but in April 2015, in an editorial entitled Match Fixing, I raised the alarm about the Insurance Amendment Bill: “What the bill basically means is that the supervisory powers that the commercial courts have under the Insolvency Act have been given to the minister of good governance, through the special administrator! That is the separation of powers among the legislative, the executive and the judiciary have been weakened tremendously. And, since this new Act will apply to the BAI saga – a case already in court – what this effectively means is that the government is changing the rules in the middle of the game and hogging more powers, strengthening the already strong perception that the BAI saga is not just about justice.” It was then only a bill. The sheep in parliament gave it their blessing and it became an Act.
“It is a matter of serious disquiet that such an inroad could take place,” the commission concludes. I fully agree! And it’s a matter of even more disquiet that those advisers the assessors are talking about have been replaced by even more powerful ones doing pretty much the same thing. And the sheep continue with their ‘ayes’ without a care for the country. All is well, as long as their bellies and pockets are full.
Disquieting indeed. Not just the revelations in the report but the fact that we are being served more of the same.