A new anti-corruption hero – and a judge who holds the line

16 October 2020 · Carmel Rickard

A woman who held firm against a shady 'fronting' scheme has been vindicated by the high court in Mombasa. After Rachel Ndambuki refused to become part of the scheme she was demoted and sent to another office. However, she persisted with her legal action, saying her transfer and demotion had infringed a number of her rights and that she should be paid damages. The case also saw a prominent civil servant be declared in contempt of court, and be fined, after ignoring a court order not to effect Ndambuki's transfer until the court had heard full argument in the case.

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I’ve never met her, but Kenya’s Rachel Ndambuki has become a hero. That’s because of the way that she has stood up strongly against corruption. Likewise, I’ve not met Judge James Rika, but he has my respect because of how firmly he has held the line against government officials who flout court orders, and even ignore contempt findings.

In 2017 Ndambuki was posted to Taita Taveta County where she was in charge of the survey office. The big task of the office had been to deal with land donated by the family of President Uhuru Kenyatta – 2224 acres of land in all – to resettle 850 people living in informal settlements.

But by the time she arrived, that work had been done. Then she discovered that some of the land had not been properly allocated. Some people who should have been given land were allocated nothing.

Evicted

During July 2018, one of her superiors drew up a new list of people, proposing that there should be ‘fresh allocations’ of the settlement scheme and that they should also be considered. Ndambuki said she would have nothing to do with the proposal because those on the new list were not among the original list of beneficiaries. In addition, the plots that would be re-allocated were already occupied by people entitled to them. And the only way that the new people could get the land would be for the present occupants to be evicted.

In the view of Ndambuki, the land had already been registered to the people now living there, and in any case, the correct forum for disputes of this sort would be the courts. Further, she argued, the Ziwani Settlement Scheme had been concluded and so any further re-allocation would have been irregular.

As the court would later find, certain ‘third parties’ wanted to grab the land, and they were ‘fronted’ by a senior local official. Though invited to become part of the ‘grabbing’, Ndambuki ‘stood her ground and conscientiously declined to advance the grabbling of land’.

'Fronting'

The official who was ‘fronting’ for the would-be land grabbers came up against a public officer, Ndambuki, ‘who would not budge an inch’. So, in retaliation, the official wrote ‘a malicious complaint’ against her to the Ministry.

In what was a clear demotion, Ndambuki was transferred to another office. As Judge Rika put it, ‘It can safely be concluded that (she) was being moved because she was an impediment to certain vested interests, fronted by the Deputy County Commissioner.’

She was transferred and demoted in one move, all because she had done her duty in accordance with the constitution and the law, said the judge. ‘She protected genuine squatters against deprivation of what the settlement scheme offered. She thwarted land grabbers. She acted in promotion and protection of constitutional order and rule of law. She was transferred and demoted for it.’

Contempt

Her right to fair labour practice was violated, along with a number of other rights.

But Ndambuki was not the only one to hold firm to what was right and legal. The judge had issued an order staying the transfer of Ndambuki pending the hearing of an application she had brought. But the cabinet secretary, ministry of lands and physical planning did not obey the order and the transfer went ahead. In a ruling some months later, the court found the cabinet secretary to be in contempt.

The court then gave her time to purge her contempt, before a date was set for her to be sentenced for her contempt. She did nothing to purge her contempt so she was fined and ‘banished’ from the proceedings of the case, until she had paid the fine.

Firmness

When the case was heard in full some six months later, the fine had not been paid. Though counsel argued that her clients should be heard as the Principal Secretary ‘had now approved payment of the fine’, the court was having none of it.

‘The court swiftly rejected the contemnor’s entreaties,’ the judge noted, ‘and ordered that (Ndambuki) proceeds ex parte.’ This is a key moment, with the court holding firm to its position that its orders had to be obeyed, and building on its earlier firmness in finding the Cabinet Secretary had committed contempt of court, and imposing a fine.

The court’s decision to refuse to hear counsel for the cabinet secretary meant that Ndambuki’s version was essentially unchallenged, and was accepted by the court.

'Scant regard'

Judge Rika said he would grant Ndambuki’s application. The government parties had shown ‘scant regard’ for the rule of law, first by transferring her, then by disregarding the interim court order staying her transfer, then by adding to their contempt of court by not paying the fine imposed on them. He said there had been ‘multiple violations of a grave nature’, suffered by Ndambuki, and that she should be awarded general damages.

His ordered that she was not to be transferred or deployed, nor was disciplinary action to be taken against her in relation to the original complaint about the squatters’ allocation list. She was also to be returned to her original post. And, for good measure, she was to be paid general damages of Kshs 3.5m

Ndambuki will surely be happy for her vindication, not to mention the damages she was awarded - but her refusal to become party to a shady 'fronting' scheme, and her determination in going to court to protect her reputation have illustrated to a much wider audience what can be achieved when someone stands firm against corruption.

Carmel Rickard

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