Pressure continues to pile on the Ethics and Anti-Corruption Commission (EACC) for an update on the Sh7.8 billion Kemsa scandal, with two organisations protesting at the Office of the Director of Public Prosecutions (ODPP) last week.
Transparency International Kenya, Inuka Kenya Trust and The Kenya Legal & Ethical Issues Network on HIV and Aids (Kelin) staged a protest at the DPP's office demanding to know the status of the investigations into the Kemsa scandal after attempts to get feedback from the DPP failed.
Speaking as they presented copies of signatures, Mr Timothy Wafula, the programme manager for Health Governance at Kelin, said the protesters sought to understand why there was no progress on the Kemsa scandal.
“In 2021 we wrote a letter to the ODPP asking for an update but we did not receive any response. We started an online petition in which we wanted to see what was happening and which was signed by over 2,000 people. Today, we have come here to present physical copies of signatures and the online petition asking the ODPP to update the public on the status of prosecution,” said Mr Wafula.
“Our concern is that maybe this money that was stolen during the Covid period is being used in [the ongoing] campaigns and if we do not address this problem now it will be a big problem [later],” he added.
Speaking to the protesters, Senior Assistant Director of public Prosecutions Lilian Obuo said that after reviewing the letter from the EACC, they had questions which made them right back to the commission.
“We received a file from EACC but after reviewing the file, we had questions and we wrote back to the EACC in September 2021 [and] we have not gotten any feedback. We have a joint task force that is working closely with the EACC,” said Ms Obuo.
In a letter to the EACC, the ODPP said they found “the evidence inadequate to support the recommended charges for the breach of procurement procedures”.
Further, the ODPP said the evidence in the file showed that the Covid-19 items were procured as an emergency procurement.
“The procurement of the said Covid-19 items happened at a time when covid-19 had been declared a national health emergency and a global pandemic. Mere breaches of the law at such a period would be met with strong defence. It would be, therefore, important to establish that the alleged breaches were meant to facilitate the siphoning of the funds set aside for purchase of the items. This evidence is still lacking,” the DPP said.
The DPP also noted that it would not be in the public interest to present a case of mere breaches in court without ensuring comprehensive investigations in the matter, more so the beneficiaries of the funds.
The EACC had initially recommended for the prosecution of eight companies.
Not been exhausted
However, the ODPP found that the financial investigations had not been fully exhausted and only the first layer of payments had been covered.
“The distribution of the funds from the accounts of the suppliers and beneficiaries thereto still remains unclear,” the DPP said.
The ODPP said that in order to successfully prosecute the matter, crucial evidence against Kemsa officials and the suppliers/beneficiaries of the Sh7.8 billion has to be fully investigated.
The DPP also faulted the EACC for failing to include information contained in the reports by the Auditor-General the parliamentary Public Investments Committee regarding the names of several companies and their directors as well as payments allegedly made by Kemsa.
“Such information is not contained in the two inquiry files and can, therefore, not be taken into account in the decision making in this matter,” the DPP said.
In August, 2020, President Uhuru Kenyatta asked government agencies to expedite investigations into alleged theft of funds at Kemsa.
"Given the public interest, the relevant agencies should expedite investigations and conclude the same within 21 days. All persons found to be culpable from the ongoing investigations on Covid funds should be brought to book notwithstanding their social status or political affiliations," President Kenyatta said.