Of Caesar’s wife, Ruto’s land gift and a whiff of scandal land gift should revert to State

The pound of flesh, which I demand of him,

Is dearly bought; 'tis mine and I will have it.

If you deny me, fie upon your law!

There is no force in the decrees of Venice.

I stand for judgment: answer; shall I have it?

Merchant of Venice, William Shakespeare

In admitting he was gifted 2,536 acres in Taita Taveta by Basil Criticos, Deputy President William Ruto voluntarily re-gifted the land to the public for free. His additional rider that the gifting was for assisting Criticos resolve a loan issue with Agricultural Finance Corporation, a state corporation, gave the eventual transfer to the public a legal nihil obstat (nothing stands in the way). On August 10, once the presidential election results are announced, Hon. Ali Hassan Joho, Minister for Lands (designate, for the Azimio la Umoja One Kenya coalition) has to begin the compulsory acquisition of the land for free and distribute it to the people of Taveta for free.

Chapter Six of the Constitution on Leadership and Integrity sets out the minimum moral and legal bar for those in public office.

A state officer should conduct themselves in such a way that they don’t bring public scandal or odium to the office.

Julius Caesar, the great emperor of Rome, hosted a religious festival in which only women were invited.

Publius Clodius Pulcher, a Roman noble, disguised himself as a woman and sneaked in.

It was said he seduced the women present, including Pompeia, wife of Caesar. Rome was scandalised. Though he didn’t succeed in having coitus with Pompeia, the Emperor divorced his wife for, as he said, Caesar’s wife must be above suspicion. As in the royal palace of Julius Caesar, there should be no suspicion or whiff of scandal in the affairs of a state officer.

Article 79 of the Constitution anchors the establishment of EACC.

Article 80 anchors The Leadership & Integrity Act, No. 19 of 2012.

The Act clearly and without equivocation states that all gifts and donations given to a state officer in a public function or whilst carrying out a public function belong to the state. The Act also enjoins state officers accepting gifts from those who have an interest in the government department under the state officer. Where a state officer receives any gift or benefit, he shall report to the Ethics and Anti-Corruption Commission (EACC) immediately.

The EACC is supposed to maintain a register of gifts and benefits to state officers.

The Deputy President, by dint of the Constitution, is the principal assistant to the President. If the President be the CEO of the Republic, then the deputy is the COO. All government ministries and departments are basically under them.

A Minister for Energy cannot be said to have any duties in the Ministry of Agriculture. It would not, therefore, be wrong for a farmer to gift the Minister for Energy with maize and she doesn’t need to disclose it. But it would be wrong for the farmer to give maize to the Minister for Agriculture without the minister disclosing to EACC.

Disclosed to EACC

Thus, all gifts to the President and Deputy President from locals or foreigners, whether they be money, guineafowl, cows or land must be disclosed to the EACC to be entered in the register.

Eventually, when both leave office, the gifts escheat to the state.

For now, we don’t know how much Basil Criticos owed AFC, or how much was written off or how much he paid. Being a state corporation, we will eventually know.

We don’t know how much William Ruto paid Criticos for the land, whether peppercorn or a few millions. But what we know is that the transaction was not a commercial one. The land didn’t change hands after true consideration was paid. The full value of the land wasn’t paid. This in and by itself is corruption, as it is a bribe.

There were always whispers and rumours that Ehud Olmert, Prime Minister of Israel from 2006 to 2009, was incorrigibly corrupt. But corruption being an omerta transaction, it is very hard to catch the doers in the action. But as they say, a thief has 40 days. In Israel, property prices are transparent. Prices are per square feet. Houses of same size in a building are therefore same price. A developer cannot sell them at different prices. Ehud Olmert purchased an apartment at a price that was $325,000 less than other similar apartments. He was charged with corruption for the under-pricing and fined $400,000 and jail imprisonment of six years. Selling land or house to a state officer below its market price is bribery.

In America, the courts have held that if you had been gifting a friend before he joined public office, you can continue gifting him and this wouldn’t count as corruption. It would be corruption if you hadn’t gifted him before. In Australia, Barry O’Farrell, the premier for New South Wales, was forced to resign after he failed to disclose a gift of a bottle of wine worth $2,800.

In the Integrity Act, a breach of the laws therein is misconduct. A breach of the Act is a violation of the Constitution.

It is ground for removal or impeachment of a state officer. In passing the 2010 Constitution and enacting the enabling Acts thereunder including The Integrity Act, we laid our bed and must lie on it.

By publicly confessing he was gifted the land by Basil Criticos who owed money to a state corporation, the Deputy President unwittingly gifted the landless of Taita Taveta County come August 9. The Book of James 1:17 says:

Every good and perfect gift is from above, coming down from the Father of the heavenly lights, who does not change like shifting shadows.

Let the good people of Taita Taveta enjoy ownership of Mata Ranch with the water flowing through it. What a time to be alive for the long-suffering squatters of Taveta. The heavens truly smile.

Donald B Kipkorir is an advocate of the High Court of Kenya and supporter of Raila Odinga's presidential candidacy. Twitter: @DonaldBKipkorir