Haji now seeks court direction on CSs facing criminal cases

Director of Public Prosecutions Noordin Haji wants the High Court to determine whether a Cabinet Secretary should be held accountable individually for the exercise of his powers in the performance of his functions.

In an application before the High Court, Mr Haji also wants the court to determine whether CSs are immune to criminal prosecution for acts and omissions in the course of their duty.

The DPP made the application in a petition filed by former Treasury CS Henry Rotich, who has challenged his prosecution over the Sh63 billion Arror and Kimwarer dams’ scandal.

The former CS has argued that he was not responsible for procurement of the tenders and that he was not the accounting officer at Treasury but only discharged his duty, at the tail end of the process, as required by law.

Mr Rotich also questioned why the DPP left out key players in the deal including former Attorney General Githu Muigai, solicitor general Njee Muturi and Environment CS Judi Wakhungu.

And after filing the case, the DPP wants the court to determine whether a decision to prosecute a CS can be faulted on account of pronouncement by political leaders that have no connection to the case or the evidence available to the DPP.

In the application, Mr Haji says various courts have given different interpretations as to the extent in which they can review the decision to charge graft suspects.

“Recently, some courts have reviewed the DPP’s decision to charge not based on proof of violation of constitutional powers in the decision-making process but based on ‘lack of sufficient evidence’, issues which should conclusively be determined by the trial courts,” he said in the application.

Mr Haji says the decision to review graft charges for lack of sufficient evidence has opened a floodgate of litigations, such as the case filed by Mr Rotich.

“The DPP in executing his mandate works at safeguarding the best interest of the public through prosecution of criminal matters, which include prosecution of corruption and economic crimes that have led to the loss of colossal sums of monies with devastating effects to the economy,” he said.