Was it all hot air? Freedom for suspects but where is the Sh15 billion 'lost'?
Director of Public Prosecutions (DPP) Noordin Haji. Inset are DP Rigathi Gachagua, Businesswoman Mary Wambui, former Kenya Power MD Ben Chumo, CS Aisha Jumwa, former Nairobi Governor Mike Sonko and Kenya Pipeline acting MD Joe Sang.
Mega corruption and tax evasion cases cumulatively worth Sh15 billion have been withdrawn or crumbled since President William Ruto’s administration came to power, raising questions of whether the taxpayer has lost the colossal amount of cash.
At least 11 cases against government officials and businesspeople have been withdrawn by Director of Public Prosecutions (DPP) Noordin Haji or collapsed on legal technicalities. Other cases have been put in abeyance by the public prosecutor.
With the charging of the individuals, it had been hoped that alleged proceeds of corruption and pending taxes would revert to the taxpayer, but the amount now appears to be a phantom figure.
Some of the beneficiaries of the recent successive withdrawal of court cases are allies of the President and they claim the cases were meant to punish them for associating with and supporting Dr Ruto. Top on the list of withdrawn cases is that of former National Health Insurance Fund chief executive officer Geoffrey Mwangi over a Sh1.1 billion scandal. The case involved procurement irregularities of an online payment system at the state-run insurer.
Also withdrawn is the Sh2.2 billion tax evasion case against Communications Authority of Kenya board chair Mary Wambui Mungai. She had been accused by the Kenya Revenue Authority of evading taxes through her company, Purma Holdings.
The DPP withdrew the case after Ms Mungai and KRA entered into a deal whose details were never shared in court. KRA only said it had compounded the fine a tax offender would have been handed by the courts. Also withdrawn is the trial of Deputy President Rigathi Gachagua who was facing charges of over Sh7.3 billion.
Others who faced corruption charges are former Kenya Power managing directors Ben Chumo and Ken Tarus (Sh400 million) and Public Service Cabinet Secretary Aisha Jumwa (Sh19 million). In other instances, the cases have collapsed, and the accused have been cleared by court. Kenya Pipeline Corporation acting managing director Joe Sang was acquitted in a Sh1.9 billion corruption case.
A Sh20 million money laundering case against former Nairobi governor Mike Sonko has also collapsed. The court found no money was taken from the county government because no proof of the theft was offered by the public prosecutor in court.
Others whose criminal cases have crumbled are five Kiambu County Government employees who had been charged alongside former governor Ferdinand Waititu in a Sh588 million corruption case. They are Zacharia Mbugua, Joyce Ngina, Simon Kang’ethe, Anslem Wanjiku and Samuel Muiga. They were members of the county government Tender Evaluation Committee.
Additionally, the DPP has put on hold the extradition of former Kenya Power & Lighting Company Managing Director Samuel Gichuru to the United Kingdom over alleged corruption and theft of Sh1.5 billion.
After putting Mr Gichuru’s extradition in abeyance, attempts to extradite former Finance and Energy Cabinet Minister Chris Okemo over the same corruption allegations proved futile. City Court Chief Magistrate Roseline Oganyo discharged Mr Okemo from the extradition process after the DPP failed to adduce either oral or documentary evidence to demonstrate why the former minister should be taken to Britain to face criminal charges in the Island of Jersey.
The prosecution of former National Olympics Committee of Kenya official Stephen arap Soi over the loss of Sh55 million in the Rio 2016 Olympics scandal crumbled after the High Court quashed his conviction and a 17-year prison term. Most of the cases started during the administration of President Uhuru Kenyatta.
The DPP has defended his actions, saying, he withdrew cases following frustrations by witnesses and police investigators. He said investigators failed to fulfil their pledge of providing additional evidence, while some witnesses recanted their evidence.
As to why he allowed the filing of the criminal cases without conclusive evidence, Mr Haji said his office authorised commencement of the prosecution based on the evidence available at the time and with the expectation that the investigators would provide additional evidence to sustain the charges.
Mr Haji explains that the cases were dropped under the “threshold test” of prosecution, where a case is filed in court even though it does not meet the evidential test, but there is reasonable prospect that additional evidence will be provided by the investigating officer.
A civil society group now wants the DPP to resign, saying the mass withdrawal is not justified and is questionable. Lawyers, governance experts and the civil society have also raised concerns on whether public funds were looted in the mega corruption scandals as previously alleged by the prosecutor and police.
With its new report released yesterday, Transparency International Kenya becomes the latest to criticise this development saying it “has caused a precipitous fall of public confidence in the justice system in the country and anti-corruption efforts.”
Also questioned is whether, by withdrawing criminal charges involving politicians who were in bad books with the former administration and who have claimed that the court proceedings were politically motivated, the DPP is admitting that his office can be used to mount trumped-up charges against persons who have fallen out with the Executive.
“The DPP should take responsibility for the withdrawal of these charges as they demonstrate gross incompetence and unprofessionalism in his conduct,” said Ms Sheila Masinde, the executive director of Transparency International.
The activists add that an independent inquiry ought to be carried out into the agencies involved in the withdrawal of cases — the ODPP and the Directorate of Criminal Investigations (DCI) — alongside an audit of the dropped cases as well as the available evidence.
Ms Masinde further called for suspension of the withdrawal of high-profile criminal cases until such an inquiry is complete.
Yesterday, following release of the latest corruption index that shows a slight improvement by Kenya, TI regretted that “almost nine publicly known corruption and other criminal cases of high-profile individuals, have inexplicably been dropped by the Office of the Director of Public Prosecutions (ODPP) in less than five months since the new government came into power, and the individuals exonerated from graft charges appointed into various public service positions.”
Constitutional lawyer Charles Kanjama said withdrawal of the corruption cases concerning people in government and well-connected individuals suggests that there might be political considerations in the withdrawals. He stated that, at the time the DPP approved the charges, it is possible he was convinced there was sufficient evidence, or he acted under pressure or misapprehension of the law of evidence.
“There might be valid reasons for the withdrawal of the cases but, because most of them are linked to people who are in the new administration and were not favoured by the old administration, it creates a question whether there might be political considerations. What we do not know as onlookers is whether the political consideration was there when the cases were being brought or it was by some kind of pressure. We do not know whether the pressure is on both times, or none of those times,” said Mr Kanjama.
He added that the DPP should not fear withdrawing charges because of the thought that it may make him look bad and that there is no wrong or right time to drop a case.
In addition, he said, if there was a mistake made before or new evidence and factors have come to light that support a review of the decision to charge, the DPP should go ahead and review the case.
Though the Law Society of Kenya (LSK) had three months ago pressurised the DPP to explain why he was dropping charges against corruption suspects allied to President Ruto, the pressure dwindled.
Non-disclosure
Shortly after threatening to sue the DPP over non-disclosure of why corruption cases were being dropped, LSK top officials, led by its president Erick Theuri, held a meeting with the DPP at his office in October and later at State House in Nairobi and the pressure disappeared.
Efforts to reach Mr Theuri for a comment on what the DPP and the President told the LSK were futile because he did not respond to phone calls or text messages.
Mr Javas Arafat Bigambo, a lawyer and governance expert, observed that the DPP should disclose the reasons behind the flurry of withdrawals and confirm whether he is being coerced now or was coerced by the previous administration to open the cases.
“Kenyans would like to know what happens to the various witnesses who had sworn affidavits and statements or were state witnesses in the withdrawn cases. If people had been listed as witnesses it means there was evidence against the accused,” stated Mr Bigambo.
“As cases have been withdrawn, what happens to the money that was allegedly lost. Does it mean DPP will refer case to the DCI to conduct fresh investigations and bring it again for prosecution? Does it mean the public will lose the money,” he asked.
Lawyer Danstan Omari said the DPP should not be faulted for doing his job and that pressure should be directed to the Judiciary on why it is allowing the withdrawal of the cases.
He said the public outcry came from a lack of communication on why cases are being withdrawn.
“Before making an arrest, the DPP gives reasons why it is authorising the arrest and charging suspects. Kenyans equally have a right to know why the DPP has decided to withdraw a case,” said Mr Omari.
