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Delayed cases dull Uhuru pledge to slay corruption dragon

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Summary

  • The wheels of justice have been slow despite former Chief Justice David Maraga raising the number of magistrates at Milimani to hear graft cases.
  • Other than the case against Dr Wario and his co-accused, which has been concluded and the prosecution securing two convictions, all the others have been going on at a snail-pace partly due to disruptions caused by Covid-19.

When President Uhuru Kenyatta started his second term in office, he made a promise to strengthen the fight against corruption. He said billions were being siphoned annually through corruption, denying Kenyans services.

And to walk the talk, President Kenyatta ensured heads started rolling, and in a few months, Cabinet secretaries, PSs, governors and senior government officials were arraigned over charges of corruption, in what came to be known informally as Kamata Kamata Fridays.

Some of the big names taken to court included CSs Henry Rotich (Treasury), Hassan Wario (Sports), former Youth and Gender PS Lillian Omollo, Richard Lesiyampe (Agriculture), Sammy Itemere (Broadcasting) and Richard Ekai (Sports).

Governors included former Mike Sonko (Nairobi), his predecessor Evans Kidero, Sospeter Ojaamong (Busia), Moses Lenolkulal (Samburu) and Ferdinand Waititu (Kiambu).

But other than the case against Dr Wario and his co-accused, which has been concluded and the prosecution securing two convictions, all the others have been going on at a snail-pace partly due to disruptions caused by Covid-19.

Dr Wario was found guilty together with Chef De Mission to the Rio Olympics in 2016 Stephen Arap Soi. He was sentenced to six years with an option of paying a fine of Sh3.6 million, which he paid and got back his freedom. Mr Soi was sentenced to 17 years in jail after he failed to pay a fine of Sh105.6 million.

Another win for the prosecution was the jailing of Grace Wakhungu and Sirisia MP John Waluke. She was sentenced to jail for 69 years after chief magistrate Elizabeth Juma found her guilty of five counts in connection to theft at National Cereals and Produce Board (NCPB).

Mr Waluke was equally found guilty and sentenced to 67 years in prison, with both fined more than Sh2.1 billion as an alternative to the jail terms.

The two were later released on cash bail after spending about three months in jail and have appealed the conviction and sentences, saying it was excessive and that the prosecution shifted the burden of proof to them.

But many other cases are yet to be concluded. They include those facing former National Land Commission chairman Muhammad Swazuri, former Kenya Railways boss Atanas Maina and former managing directors Joe Sang (Kenya Pipeline Company), Ben Chumo and Ken Tarus (Kenya Power).

Director of Public Prosecutions Noordin Haji also promised to secure convictions by proving how the acts and omissions by those implicated were not only negligent but also well-calculated schemes to siphon public funds.

But when the first case of Covid-19 was reported in March last year, courts were among the hardest hit as the Judiciary was forced to scale down its services to stop the spread of coronavirus.

Chief Justice David Maraga later announced virtual hearings for urgent matters but criminal cases that had a large number of accused persons were suspended.

When the open court resumed in June last year, judges and magistrates were forced to conduct sessions at the Judiciary car park as opposed to courtrooms. This is because the courtrooms are not big enough to accommodate a huge number of accused persons and litigants while observing social distancing measures.

Before resorting to open spaces, officials from the Health Ministry conducted a check at Milimani Law Courts and recommended open-air court sessions. They warned open court sessions could expose more people to Covid-19.

And for cases that must be heard in open court, the ministry advised the Judiciary to take major precautionary measures, including reorganising sitting arrangements and limiting the number of people allowed into the premises, to ensure social distancing.

Chief Registrar of Judiciary Anne Amadi later directed courts to handle a maximum of five criminal cases a day and that witnesses would be given the specific dates and time to testify.

With the new directives, big corruption cases, which Kenyans expected to see concluded quickly, are hardly making traction.

This has seen some of the accused persons, among them Ms Omollo, file applications to strike out their cases for the long delay.

The law — Section 62(1) of the Anti-Corruption and Economic Crimes Act — states that a public or state officer who is charged with corruption or economic crime shall be suspended at half pay with effect from the date of the charge until the conclusion of the case. The law further says the case shall be determined within 24 months.

Ms Omollo argued in her application that the court has no authority to handle the case since the statutory timelines have since lapsed.

“The jurisdiction of this court has been extinguished by effluxion of statutory timelines for determination of the case. This court has ceased to have jurisdiction to hear and determine the charges,” she said through her lawyer.

Ms Omollo was charged on May 29, 2018, together with other senior officials at the National Youth Services staff such as former director-general Richard Ndubai, and suppliers with various counts including misuse of office, conspiracy to commit felony and money laundering.

The cases were divided among three months with the more than 30 civil servants, ranging from senior, middle and lower cadre, appearing in all the 10 files but the traders implicated in the matters, placed in different files.

The traders alleged to have received funds include Ameri Traders, belonging to James Katululu and George Mvuli (Sh28,766) and Ms Catherine Kamuyu and Sarah Murugu of Ersatz Enterprises (Sh26.6 million for goods not supplied).

Ann Wambere Wanjiku of Annwaw Investments was accused of receiving Sh59.8 million, while Lucy Wambui Ngirita of Waluko Investment, Phylis Njeri Ngirita and Jeremiah Gichini Ngirita of Jerrycathy Enterprises were said to have received Sh72.2 million for goods not supplied.

Others are Anderine Grace Nyambura of Kalabash Food Supplies (Sh9 million from NYS), Firstling, whose directors are Kenneth Mwathi Mburu, James Thuita Nderitu and Yvonne Wanjiku, accused of receiving Sh115.5 for goods not supplied.

Peter Wagurah Kimani and Anthony Makara Wamiti of Arkroad Holdings allegedly received Sh24.8 million while Catherine Wanjiku Mwai of Kunjiwa Enterprises is accused of receiving Sh23.4 million.

Another accused person, Benson Muturi, who is facing charges together with former Kenya Power CEOs, Dr Chumo and Mr Tarus, has also filed an application to quash his charges on grounds of the delay in the conclusion of the trial. They were charged on July 16, 2018.

Mr Muturi says it’s been three years since they were charged and the indefinite pendency of the matter, suspension and his half-pay as a suspended public officer amounts to infringement of his constitutional rights to be presumed innocent until found guilty.

It is the same scenario for 26 people, among them former Devolution PS Peter Mangiti, former NYS director-general Nelson Githinji, businessman Ben Gethi and Josephine Kabura, who were charged earlier with the loss of Sh791 million at the State agency.

The wheels of justice have been slow despite a move by former CJ Maraga to increase the number of magistrates at Milimani, to hear the graft cases.

But in a recent address, Chief Justice Martha Koome acknowledged that more Judges and magistrates alone will not solve the slow wheels of justice.

“Improved procedures alone will not ease the backlog, to accomplish 100 percent case clearance rate, will require a combination of various factors such as effective use of technology, inter-agency coordination, adequate staffing and funding, habitable courtrooms and working stations, in addition to the single most important ingredient — the service of dedicated judges, judicial officers and supporting personnel in courts,” she said.

The CJ said the Judiciary must continue to expand the use of trained court administrators, modern technology and modern business methods.

The office of the DPP has also been exploring the use of alternative dispute resolution mechanisms and plea bargains to help cases move along faster.

For instance, in the case facing former Treasury Cabinet secretary, Mr Rotich, over the Kimwarer and Arror dam scandals, the State withdrew charges against his co-accused — former PSs Kamau Thugge (Treasury) and Susan Koech (Tourism) — and turned them into State witnesses in the matter to improve he chances of securing a conviction.

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