Rotich graft case collapse scary sign of State Capture of courts

If the Director of Public Prosecutions Renson Ingonga had any sense of pride or shame, he should have resigned forthwith following a severe indictment delivered by a Nairobi Court over wilful dereliction of duty in the corruption case facing former National Treasury Cabinet Secretary Henry Rotich.

In freeing Mr Rotich and eight co-accused in the Sh63 billion Arror and Kimwarer dams scandal, trial magistrate Eunice Nyutu noted that the prosecution had conducted a “well-choreographed” strategy to undermine its own case.

With the prosecution effectively abandoning its quest, the magistrate was left with no option but to acquit the accused for lack of evidence. Rotich and the others were, thus, set free but the Office of the Director of Public Prosecutions (ODPP) was indicted and found guilty of deliberately sabotaging its own case. 

“I find there is a need to check the unfortunate and reckless habit of the ODPP commencing proceedings which they have no intention of pursuing to its logical conclusion. Such conduct is an upfront to the administration of justice. It is an insult to the dignity of the court and all stakeholders of the criminal justice system,” said Ms Nyutu.

The magistrate did not stop there. She directed that her ruling be perused by relevant organs of the justice system to probe the conduct of prosecution authority, which she found in breach of the powers granted by the Constitution.

The final outcome was not the first time Ms Nyutu had taken issue with misconduct on the case. In September, she declined an application by the prosecution that she remove herself from the case on grounds of alleged bias, describing it as “calculated at compelling the court to grant an adjournment by any means necessary. This is abuse of the court process”.

Previous applications for adjournment had been denied, following which the prosecution declined to cross-examine its own witnesses, citing instructions from superiors to halt the matter until then-incoming DPP Ingonga had reviewed the file and given instructions.

It is apparent now that Ingonga did review the file, after which the prosecution adopted a strategy of ensuring that the case did not succeed.

They may well argue, with some justification, that the Arror-Kimwarer dams scandal was one of the politically motivated cases against allies of President William Ruto’s, then the Deputy President, inherited from the previous regime. But there was the option of formally seeking to withdraw the case, instead of taking the court round in circles with a lengthy and very expensive circus of a mock prosecution.

Read: Kenya defaults on Sh5bn Arror, Kimwarer dams loans

The saga badly exposes Ingonga, who came to office this year and took an oath to operate professionally and independent of pressure from any quarters. But like his predecessor Noordin Haji, he seems to have come under the sway of political forces.

The advent of the Kenya Kwanza regime last September saw Mr Haji swiftly move to abandon several corruption and other criminal cases facing political allies of the then-newly installed President Ruto.

The withdrawal of the cases was attributed to the claims that they were products of political harassment driven by then-Director of Criminal Investigations (DCI) George Kinoti. Indeed, Haji had in the previous regime had long-running battles with Mr Kinoti over criminal investigations and case files that seemed to have been grounded more on political vendetta than any provable offence.

But despite his stated reservations, Haji proceeded to prosecute the cases, as was his sole prerogative, only to hastily abandon them with the change of guard at State House when President Uhuru Kenyatta gave way to his estranged erstwhile deputy Ruto.

Read: President Ruto revives Sh63bn Arror, Kimwarer dams projects

Ingonga, a career ODPP insider unlike most of his predecessors, inherited the Rotich case from Haji and, after a period of pussyfooting and wasting court time, evidently allowed the accused to become beneficiaries, like many others before them, of the Kenya Kwanza campaign slogan ‘Freedom is Coming’.

But in the process, he has disgraced his office, which in the public eye will now never be seen as anything but a willing tool of the new ‘Deep State’ in town.

Every decision made henceforth to prosecute or not will be viewed from the political angle rather than the dictates of an office created by the Constitution to function free of influence and direction from any other power and authority.

With the Ruto-era Inspector-General of Police Japhet Koome and DCI Mohammed Ibrahim Amin also seeming to owe their loyalty to political patrons rather than the oath of office, the Kenyan justice, law and order is firmly under the grip of ‘State Capture’. That is scary.

[email protected]. @MachariaGaitho