Senators played the ethnic loyalty and corruption cards to save Interior Cabinet Secretary Fred Matiang’i and Education Principal Secretary Belio Kipsang from censure over the Sh1.5 billion Ruaraka land scandal, sources have told the Nation.
Their controversial decision on Tuesday last week has left the Senate sharply divided and the committee investigating the scam — in which the government is suspected to have lost billions of shillings through the dubious decision to pay for land it already owned — disappointed and frustrated.
The report by the Senate’s County Public Accounts and Investments Committee chaired by Homa Bay Senator Moses Kajwang had indicted Dr Matiang’i and Dr Kipsang for being criminally liable for the loss of public funds.
But senators who rejected it said Mr Kajwang and his team had gone beyond their powers and mandate in making the recommendations.
The Sh1.5 billion was released in January this year as down payment to businessman Francis Mburu’s Whispering Palms Company for the land, LR NO 7879/4, where two schools — Ruaraka High School and Drive-In Primary School — stand.
A similar probe by the National Assembly’s land committee also found that the controversial land is public utility and the government should not have paid a dime for it.
The committee, chaired by Kitui South MP Rachael Nyamai, recommended that National Land Commission Chairman Muhammad Swazuri and officers from Treasury and Education ministries be held responsible.
Dr Matiang’i and Dr Kipsang are accused of not following due diligence in the acquisition of the land and ignoring the recommendations of a task force they put in place to advise on the acquisition of the land.
On Sunday at least five senators, mainly from the Minority side, claimed that their colleagues from across the political divide had been given between Sh30,000 and Sh50,000 to stay away from the House when the report came up for voting. The Nation could not independently establish these claims.
Before the voting, lawmakers from the Rift Valley had ganged up to save Dr Kipsang, and had made it clear that they will vote against the report.
Mr Kajwang told the Nation that he felt “frustrated” by the turn of events as “adoption of the report would have shown that Parliament is an active player in the anti-graft war, especially now that President Uhuru Kenyatta has shown commitment and is providing leadership on the issue”.
By rejecting the report, the House had failed the test, Mr Kajwang said. “There is nothing on record to explain the rejection. In fact, all the senators who contributed to the debate supported it.”
His worst indignation, however, is directed towards Deputy Speaker Kithure Kindiki, who presided over the House business on the material day.
First, Mr Kajwang argues, Prof Kindiki made a procedural mistake when he ruled that the matter concerned counties, and thus required secret voting.
Senate rules provide that at the end of debate on every motion the Speaker ought to rule on whether the matter concerns counties or not.
Where it does, the voting is restricted to delegations, which are 47 in total, bringing together only the elected senators.
Prof Kindiki said that after examining the report and the circumstances under which the matter was investigated by Mr Kajwang’s team, he was satisfied that it touched on the administration of counties.
Mr Kajwang also faulted Prof Kindiki for refusal to postpone the vote after it became clear that there was no quorum to give the bill a fair chance of success or failure.
“There is a tradition established in the House since 2013 that when the Speaker rules that a matter concerns counties, there must be at least 24 senators in the House before the vote is taken,” he said.
On Tuesday there were 19 senators in the chambers, and even if all of them had voted for the report, it would still have failed on a technicality because all motions concerning counties must be approved by a half of the elected senators, which in this case is 24.
Fifteen senators voted in support while four rejected the bill. Those who rejected were Mr Samson Cherargei (Nandi), Ms Susan Kihika (Nakuru), Mr Gideon Moi (Baringo), and Mr Kipchumba Murkomen (Elgeyo-Marakwet).
The bone of contention is a recommendation that Dr Matiang’i and Dr Kipsang be “held responsible” for the loss of the down payment to Mr Mburu, the alleged owner of the land in the outskirts of Nairobi.
While the senators argue that the recommendations on the two should be restricted to “being investigated”, they also want National Land Commission officials “held responsible” as it is the only constitutional body mandated to acquire land.
Majority Leader Kipchumba Murkomen led those who disagreed with the committee on these conclusions.
“The problem with this country is that in every corruption or purported corruption investigation, there is always a desire to find the big fish,” Mr Murkomen said, arguing that this has led to the reputations of many people being dragged through the mud simply because of their positions in government.
“When the culpable are found, people say: ‘He is too small; we are looking for a bigger fish,’” he lamented.
Faulting the recommendation, Mr Murkomen further argued that the committee had changed its mandate from an inquiry into an investigation for purposes of criminal culpability.
“Those are constitutional issues that we must find ways of separating. The duty of our House is to inquire and provide information that will be used by the institution of the Director of Public Prosecutions, who cannot be directed, not even by us, to do proper investigations against any individual,” Mr Murkomen argued.
He defended the two public officers, noting they had written to the NLC for guidance on the land matter.
Kericho Senator Aaron Cheruiyot said anger and investigations into the saga should be directed to the NLC because it needed to have all the right documents in its possession before making the payments.
But Mr Kajwang rejected the arguments by the two senators, describing them as dishonest.
Not once, he said, had the same Senate adopted motions which recommended that some county governors be barred from holding public office after the Auditor-General indicted them for misuse of public funds.
“Dr Matiang’i and Dr Kipsang are appointees of Parliament. It is not out of order for this Parliament to demand accountability from its appointees. Asking them to take responsibility was a genuine argument and is in line with well-established traditions,” Mr Kajwang said.
On Sunday, Nominated Senator Millicent Omanga, who is accused by some of her colleagues of being used to mobilise the naysayers to leave the chamber shortly before the vote, also said the attention should turn to the National Land Commission.
“Why would I defend a person who is not guilty?” she responded when we asked her whether she had sought to defend Dr Matiang’i.
“Defend him from what? He did nothing to warrant being investigated. He had no role in the acquisition of the land.”
She said the media should instead focus on the National Land Commission, which is constitutionally mandated to deal in land transactions.