The Mt Kenya Times 
By Njonjo Mue
Worth Noting:
- To entice the officials to cooperate, we inserted a clause in the draft law that provided for amnesty to those who would disclose that they had money banked abroad by a particular cut-off date.
- We also inserted a clause providing that anyone who disclosed that they had siphoned money from the public purse and banked it abroad and brought it back home would be allowed to keep 15% of it provided that it was invested in Kenya.
- After we had drafted the law, I travelled to Nairobi and I was invited by ICJ – Kenya to formally launch the Misappropriated Public Funds Repatriation Bill and the BOMB campaign during one of ICJ’s monthly public lectures that took place at The Stanley Hotel towards the end of the year 2000.
Corruption has been a perennial problem in Kenya’s body-politic.
Every year as the twentieth century drew to a close, the publication by the Controller and Auditor General of a list of officials named in connection with stolen public resources had become a painful ritual commonly referred to the ‘list of shame’.
The list of shame would elicit the usual grumbles from the public for a few days following its publication before it was overtaken by other events in the national news headlines.
The culprits therefore always knew that they just had to lie low for few days and ride the tide, or simply issue bland denials, and the public would be none the wiser.
However, in 2000, I decided to adopt a more proactive approach. At the turn of the century, one of corruption’s main mutations was the stealing of public funds by officials in the Moi government and siphoning and banking them abroad, far from the reach of Kenyan authorities even if they had the intention of trying to get it back.
During the annual conference of Kenya Community Abroad in St. Paul, Minnesota, USA, in July 2000, where I delivered the keynote address, I challenged Kenyans in the Diaspora not to despair about the sorry state of our homeland but rather to ask themselves what they were uniquely placed to do to aid the struggle for good governance.
I suggested that one way we could help was in starting a campaign to locate public funds stolen and banked abroad and returning them back to Kenya.
When I returned to Johannesburg, I recruited two friends of mine, Mary Chege who was then reading for her LL.M degree at the University of Witwatersrand, and Ken Mwige, who was visiting South Africa, and together we began a campaign that we gave the catchy title, ‘Bring Our Money Back!’ or ‘BOMB’. This campaign had three components.
First, we encouraged Kenyans all over the world, especially in countries where our money was likely to be banked in private accounts belonging to politicians and senior officials, to start or join in campaigns to compel the banks to disclose if they had Kenyan officials among their clients.
This was intended to help us quantify the extent of illicit financial flows from Kenya.
Second, we drafted a bill that provided a legal framework for Kenyan officials to voluntarily return any monies that they had banked abroad.
To entice the officials to cooperate, we inserted a clause in the draft law that provided for amnesty to those who would disclose that they had money banked abroad by a particular cut-off date.
We also inserted a clause providing that anyone who disclosed that they had siphoned money from the public purse and banked it abroad and brought it back home would be allowed to keep 15% of it provided that it was invested in Kenya.
After we had drafted the law, I travelled to Nairobi and I was invited by ICJ – Kenya to formally launch the Misappropriated Public Funds Repatriation Bill and the BOMB campaign during one of ICJ’s monthly public lectures that took place at The Stanley Hotel towards the end of the year 2000.
Shortly after my presentation, as I was taking questions, someone discretely passed a note to me at the high table.
It was from my friend Nyaguthii Chege who had been in the audience for the talk but whom I could no longer see. The note explained why.
“Sorry, I can’t stay till the end,” she had written before slipping out of the room. She had then added ominously, “You are sticking your neck way out.”
Today, this may sound like an overstatement of the risk that my friends and I were taking, but one has to recall that this was in the year 2000.
The KANU regime which had been known to arbitrarily arrest, torture and eliminate its opponents, had been in power for thirty-seven years with no sign of going anywhere any time soon.
Reading my friend’s ominous note sent a shiver down my spine. Was I terrified at taking such a public stand against corruption? Of course I was.
But in such instances, my coping mechanism was usually to remind myself that there was a fear greater than that of what Kanu might do to me: the fear of having to face our children some day to explain to them what we did to salvage their country from the kleptocrats of our day.
The following day, 17 September 2000, The People Newspaper reported on the launch of the BOMB:
[BOMB identifies banks with stolen Kenyan cash
By SOLOMON KYENZE
The Bring Our Money Back (BOMB!) has identified European banks suspected to hold secret accounts in which cash stolen by influential Kenyans from the public coffers are stashed. And it has drafted a bill to help Kenyans reclaim the money and property bought with embezzled funds.
The BOMB, an initiative by Kenyans living abroad and which is helping track down monies banked abroad, says it has identified prime properties in leading Western capitals bought with the stolen money which it will lobby using international legal action to reclaim for the Kenyan people.
An official of the BOMB, Njonjo Mue, made the disclosure on Friday night at The Stanley Hotel when he launched the BOMB campaign in Kenya. Mue, the coordinator of the organisation, also addressed a public lecture titled, “Bring Our Money Back (BOMB): Proactive strategies for tracing and repatriating looted Kenyan monies in foreign banks.”
He said following the discovery of the property plus the suspected bank accounts, pressure will be mounted by Kenyans living abroad and locally to lobby the authorities in those countries for action.
The coordinator said the efforts will be actualised through a draft Bill already drawn and which specifies the direction through which the money and property is to be reclaimed and sets in place a legal set up in Kenya to oversee the area.
The draft Bill, which is titled The Misappropriated Public Funds Repatriation Bill is ready and will be presented to the attorney-general soon for onward transmission to Parliament.
Mue said the BOMB was finalising a list of possible culprits suspected to have stolen public resources during both the Kenyatta and Moi regimes. The list will form a basis for lobbying the international community into action.
Real Estate also suspected to have been purchased in certain Western capitals using looted cash has also been identified and legal measures are to be deployed both locally and internationally to claim it back for the Kenyan people.
Giving the details of the draft BOMB Bill, Mue said it establishes a repatriation board, which will administer the Bill, and coordinate all efforts to claim the looted cash and property.
The Bill provides for amnesty to the culprits. The culprits must, however, first explain how they stole the money and then agree to refund 85 per cent of it within six months to the Consolidated Fund. They will be allowed to keep the remaining 15 per cent on condition that they invest it locally.
Once the draft Bill becomes law. the repatriations board will institute legal proceedings locally against persons who own the property in foreign lands and which is suspected to have been acquired using embezzled funds. The board will then use the judgement to lobby the authorities in those countries to have the particular property liquidated and the money reverted to the Consolidated Fund.
Mue said experts working with the BOMB were studying various international banking laws plus the various treaties that Kenya has signed that will help in efforts to launch international legal action against the looters.
European banking institutions that are suspected to hold the stolen cash will also be petitioned to overlook confidentiality clauses and open up their books for inspection to allow secret accounts belonging to the looters to be revealed.
The coordinator noted that the tide was presently against public resource looters as the international community was now actively collaborating in efforts to trace funds stolen from the people. He gave the example of Nigeria and the Philippines where he said the international community had managed to track down billions of dollars stolen by former despotic rulers and stashed in secret accounts.
Mue said BOMB will present to the A-G, the Kenya Anti-Corruption Authority (KACA) and the Central Bank of Kenya (CBK) governor a list of the property bought using illegal funds so that they may help have it liquidated and the money returned to the Consolidated Fund.
Participants at the lecture included the co-convenor of the National Convention Executive Council (NCEC) Davinder Lamba and the director of the International Commission of Jurists (Kenya Section) Kagwiria Mbogori, among others. ]
Third, we knew that the problem of illicit financial flows was not unique to Kenya but was pervasive throughout the African continent. We therefore hoped that the model we had developed would be transferable to other countries facing a similar challenge.
Indeed in early 2001, Transparency International invited me to Nyanga, Zimbabwe, where all eleven TI national chapters in Africa were meeting for their annual conference, to make a presentation on BOMB.
After my presentation, the gathered delegates resolved that it would be good to develop and adopt a formal declaration on repatriating funds illicitly siphoned from African countries and banked abroad.
I was tasked with drafting such a declaration and I had to work through the night so that it would be ready for debate and adoption before the conference came to an end the following day.
Thus one of the concluding resolutions of the conference was the adoption of the Nyanga Declaration on Tracing and Repatriation of Public Funds Illicitly transferred from African countries and banked abroad, or in short, The Nyanga Declaration.
The adoption of the Nyanga Declaration was announced by Transparency International in a press statement dated 12 March 2001:
[TRANSPARENCY INTERNATIONAL
LAUNCHES CAMPAIGN TO REPARTRIATE
AFRICA’S STOLEN WEALTH – NYANGA
DECLARATION
12 MARCH 2001
TI in Africa to lead international campaign to trace laundered money
The members of the United Nations should adopt an international treaty to expedite the tracing, recovery and repatriation of wealth stolen from developing countries and transferred abroad, declared the representatives of Transparency International from eleven African countries, following a meeting held in Nyanga, Zimbabwe, on 1 – 4 March 2001.
The Nyanga Declaration, released today, calls for “the sealing of all loopholes, requiring the banks to open to their books for inspection where there is reasonable cause to suspect illegal activity, and mandatory liquidation, and repatriation of assets known to have been corruptly acquired.”….
The Declaration calls upon the Organisation of African Unity to “take a leadership role in representing the interests of Africa with regard to the return of Africa’s stolen wealth wherever it may be found on the globe and, as a first step, should adopt all reasonable measures to prevent the illegal appropriation and transfer of monies from Africa’s treasuries.”
The Nyanga Declaration was adopted by representatives of TI from: Botswana, Cameroon, Ethiopia, Ghana, Kenya, Malawi, Nigeria, South Africa, Uganda, Zambia and Zimbabwe. ]
Looking back, the BOMB campaign was both a success and a failure at the same time.
On the success side, we mobilised Kenyans in the Diaspora to go beyond merely reacting to and complaining about the Auditor General’s annual list of shame on corruption and the siphoning of public funds by politicians and senior officials and banking them abroad.
The campaign was a shot across the bow to corrupt officials to put them on notice that they would be held to account by the Kenyan people if not at present, then at some point in the future, and that we would get our money back just as Nigerians had started to take back what had been stolen from them by the Abacha regime.
It was also a success insofar as it had provided a transferable model that could be used by other countries in Africa as had been done through the adoption of the Nyanga Declaration by Transparency International which became a tool for addressing the problem of illicit financial flows and money laundering.
However, the campaign failed in that we were unsuccessful in getting foreign banks to cooperate in disclosing accounts that might contain illicit wealth from Kenyan politicians and their cronies.
Also, while we drafted a Bill that would have provided a framework for repatriating such illicit wealth home, our Bill was never tabled in parliament but the government, under pressure from the World Bank and foreign donors, did pass its own Anti-Corruption and Economic Crimes Act in 2003.
When President Kibaki came into office in 2003 on an anti-corruption platform, it initially appeared as if the BOMB campaign, or a semblance thereof, would be taken up by the new NARC Government when it commissioned the international risk consultancy firm, Kroll and Associates, to uncover where former dictator, Daniel arap Moi, and his family and cronies had stashed away the hundreds of millions of dollars they had stolen from Kenyans during his quarter of a century rule.
However, the Kroll Report was never made public after it was presented to the Kibaki Government in 2004. The report was eventually leaked and it showed that Kroll had traced $1.3 billion siphoned to over 30 countries by Moi and his family and associates.
I had first mooted the idea of BOMB in July 2000 during the annual conference of Kenya Community Abroad in St. Paul, Minnesota.
In October 2005, the President of KCA at the time of that conference, Dr. Matunda Nyanchama, succinctly summed up in an open email our effort in mounting the campaign:
“At the same conference, he (Njonjo Mue) talked of the BOMB (bring our money back) initiative. We supported this and directed efforts as a strategy to
get the necessary information to shame the country’s looters and thieves! It was a noble cause but which required extensive investment for investigative work. Indeed, as has been seen with the NARC government, the process for discovering where money has been stashed abroad can be protracted, despite spending huge sums of money in the process. BOMB remains a noble cause; results have yet to come.”
The challenge of tracing illicit financial flows from developing countries to tax havens abroad remains a daunting one. Every once in a while, investigative journalists uncover billions of dollars as having been siphoned abroad by the global, including Kenyan, political and business elite.
Two recent examples of such exposés are the Panama Papers in 2016 and the Pandora Papers published in 2021 implicating the Kenyatta family.
Unfortunately, opaqueness in the name of confidentiality remains the rule insofar as banking rules and regulations governing tax havens and incorporation of shell companies that are used to funnel stolen wealth abroad are concerned.
In the absence of political will both at home and in these tax havens, the possibe repatriation of public funds illicitly siphoned abroad will remain a pipe dream.
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