Will Haji's latest arrest orders help Kenya win war on graft?

The arrest of Cabinet Secretary Henry Rotich and his Principal Secretary Kamau Thugge has put President Uhuru Kenyatta’s fight against corruption in the spotlight once more.

Rotich is the first sitting Cabinet Secretary to be arrested on alleged corruption and the question is whether this will fade off like other high profile cases before.

The latest move by the Director of Public Prosecutions Noordin Haji adds to the large pile of corruption cases pending before the court.

Close to 1,000 individuals have been charged in court over corruption since Uhuru took over power in 2013.

However, Kenyans are still waiting for these cases to be concluded with the Judiciary being put on the spot over the slow resolution.

But Chief Justice David Maraga has maintained that the prosecution has to be strategic when bringing the cases before the courts.

According to Maraga, some cases have been laced with sideshows singling out what Kenyans have come to know as 'kamata Fridays' where DCI appears to make most arrests on Friday.

Judges have also defended themselves saying they have a good record of dispensing off with corruption cases.

In February, the judges said that between July 2017 and December 2018, a total of 91 corruption cases were determined with 46 leading to convictions.

At the time, they said that 94 cases are still pending at the courts.

‘List of Shame’

Uhuru's journey to fight corruption kicked momentum during his first term when he surprised parliament with a list of individuals who were to be investigated and prosecuted.

During a State of the Nation address on March 26, 2015, Uhuru ordered the over 100 public officers in the list he had tabled to step aside.

He went ahead to give a 60-day ultimatum to investigate the said individuals and charge them in court – a deadline that was never met.

Among them were five Cabinet Secretaries who promptly left office leaving Uhuru with three-quarters of the Cabinet he had picked in 2013.

They were Charity Ngilu of Lands and Settlement, Michael Kamau of Transport, Felix Koskei of Agriculture, Kazungu Kambi of Labour and Davis Chirchir of Energy.

In May 2015, EACC cleared Ngilu but asked the DPP to charge Kambi and Kamau with abuse of office.

In the same communication to the DPP, the EACC exonerated Koskei over the leasing of 100 acres of Kenya Agricultural Research Institute land at Tigoni, and Ngilu over the exaggeration of the price of 10,000 acres of Waitiki Farm, Mombasa.

On September 10, 2015, then DPP Keriako Tobiko recommended the closure of Chirchir’s criminal file for lack of evidence in corruption allegations.

Also cleared by the DPP at the time was Kenya Power MD Ben Chumo.

The two had been accused of embezzling Sh90 million and irregularly transferring money from Kenya Pipeline Company to Kenya Power.

On the same day, Tobiko also cleared National Water Conservation and Pipeline Corporation CEO Evans Ngibuini and former Chief of Staff in the office of the Prime Minister, Caroli Omondi.

Ngibuini was accused of improper handling of funds in the construction of Muruny-Siyoi Dam in West Pokot county, while Omondi was being investigated for alleged irregular acquisition of land belonging to Kenya Commercial Bank.

Of the five Cabinet Secretaries, only Kamau was charged for abuse of office but the court in April this year urged the DPP to reconsider the charges.

Justice John Onyiego termed as ambiguous the charge that Kamau failed to stop a Sh33 million tender award for a road in Bungoma County.

Today, Ngilu is the Governor for Kitui while Koskei is a member of the Judicial Service Commission on the nomination of Uhuru.

Kambi unsuccessfully ran for the Kilifi governor seat in 2017 and was in 2018 appointed chair the board of the Coast Development Authority by Uhuru.

Chirchir has not gotten any other government job but was Uhuru’s chief agent in the 2017 presidential poll.

Uhuru's list to Parliament contained six Principal Secretaries, 12 governors, Senators, members of the National Assembly and parastatal heads – most of whom are still walking free.

NYS I

Despite this action, corruption continued to dog Uhuru’s administration in 2016 when a major scandal was revealed in the National Youth Service.

In February 2016, the key suspect in the Sh791 million alleged scandal at NYS, Josephine Kabura, implicated among others, former Devolution CS Anne Waiguru in the scam.

Waiguru, who is now Kirinyaga governor, has been fighting to clear her name especially after EACC revealed that Kabura lied in her affidavit.

Last year, former Devolution PS Peter Mangiti and 23 other suspects had their case dismissed on March 9 after the prosecution failed to link them to the charges they were facing.

Chief Magistrate Kennedy Bidali ruled that for conspiracy to be proved, the prosecution must provide evidence that the accused persons held a meeting, mooted the idea, and agreed to commit the said offence.

In March 2016, the EACC had revealed that it was investigating the procurement of the establishment of NYS camps at Mukuru kwa Njenga, Kiandutu and Korogocho slums worth Sh147.8 million.

The EACC was also probing a Sh302.4 million tender for consultancy on education drives to enhance access of 30 per cent reservation of government procurement.

Also being probed was the awarding of a Sh4.4 million tender for a training retreat and another Sh33.4 million tender for supply of training materials in automotive engineering.

The EACC was also looking into a Sh58.3 million tender of contracts for the supply of cutter grinder accessories. Also being investigated at the time was a Sh97.7 million tender of a contract for the supply of shaping machine and cylindrical grinders.

A tender for the supply of power sheet machines worth Sh79.8 million and another of Sh37.5 million contracts for the supply of oven equipment were also being probed.

By October 2016, there were 873 individuals, 22 companies facing varying charges of corruption in different cases.

In the case of NYS 1, the case, according to the prosecution, was to proceed last week, but didn't. A total of 18 witnesses have testified so far.

For NYS II, the case was divided into three clusters. At least four witnesses have testified in each.

Enter Haji

As those charged in court saw their cases drag in the corridors of Justice through 2017, Kenya had not witnessed any major arrests until Haji took over in April of 2018.

Since coming into office, Haji has taken a number of high profile cases to the courts. Among his big fish catches is Deputy Chief Justice Philomena Mwilu who was charged with financial impropriety in August last year.

Last month, the High Court ruled that the DCJ will not be prosecuted over corruption and abuse of office charges on grounds that the evidence presented was obtained illegally.

The DPP has moved to the Court of Appeal faulting the judges for dealing with a matter that was not before them.

Former Sports CS Hassan Wario and other sports officials were charged with the Sh55 million scandal and abuse of office. The case was mentioned on Monday.

Their case where they are accused of unlawfully authorising payment in excess of Sh15,907,500 as allowances to members of the Kenyan team is on trial and came up for hearing last week.

Former Youth PS Lillian Omollo and former NYS Director-General Richard Ndubai and 35 others were charged in relation to the loss of Sh225 million at NYS. 

The case is still at the prosecution stage with the prosecution calling in witnesses from its list of 43.

Former Agriculture PS Richard Lesiyampe and National Cereals and Produce Board managing director Newton Terer and former general manager for finance Cornel Kiprotich were charged with irregular purchase of maize. 

The three and five others were charged on August 30, 2018 but their case only kicked off on February 4 this year.

In August last year, National Land Commission chairman Muhammad Swazuri and Kenya Railways MD Atanas Maina were charged alongside 16 co-accused with conspiracy to defraud the government of Sh221.3 million.

The anti-corruption team in Nairobi also charged them with abuse of office, breach of trust, unlawful acquisition of public property and neglect of official duty.

In April this year, Swazuri was arrested again after the DPP said he has sufficient evidence to charge the former lands boss and 23 others over compensation claim to Tornado Carriers Limited in respect to compulsory acquisition of land referenced MN/VI/3810 in Mombasa. His case is ongoing.

In July, Kenya Power MD Ken Tarus, his predecessor Ben Chumo and nine senior managers were charged with various offences including economic crimes, abuse of office and conspiracy to defeat justice in the purchase of substandard transformers worth over Sh409 million.

At Kenya Pipeline Company, a Sh2 billion scandal last year triggered the arrest of former MD Joe Sang, company secretary Gloria Khafafa, supply chain manager Vincent Cheruiyot, infrastructure manager Billy Aseka and procurement manager Nicholas Gitobu.

They are out on a cash bail of Sh2 million each and the prosecution has lined up 33  witnesses.

At the National Health Insurance Fund, it was estimated that close to Sh1 billion might have been stolen in fictitious transactions, the irregular award of tenders and manipulation of systems.

The insurer’s CEO Geoffrey Mwangi and finance director Wilbert Kurgat were arrested on November 23 last year for obstructing investigations.

Mwangi, former CEO Simeon Kirgotty and others are in court for procuring an integrated revenue collection system for Sh49.5 million without planning.

Haji has also taken political leaders to court with the most prominent being former Nairobi Governor Evans Kidero and current Governors Ferdinard Waititu (Kiambu) and Moses Lenolkulal (Samburu).

Their cases are still active in court.

Lenolkulal’s case went on pre-trial on June 5 and the hearing is set to begin next month.

Waititu is yet to be arraigned in court. On July 22, the EACC urged the anti-corruption High Court to dismiss an application by the governor challenging his investigation.

The commission defended itself saying the search warrants to investigate the governors accounts were done so lawfully.

 Kidero Sh213 million graft case ongoing. Eight witnesses have testified so far.

Other corruption cases before court involve officers at various cadre in both the national government and county government.

The DPP, who was deputy director of the spy agency, the National Intelligence Service, says politicising the graft war is his biggest headache.

When announcing his decision to order the arrest of Rotich, Thugge and other government officials, Haji warned that the state would deal with those seeking to politicise the case.

"Being cognizant that corruption always fights back and that there may be elements who may seek to exploit these indictments to instigate social unrest we have put in place mechanisms to monitor any such attempts, which will be countered with whole of government response!" Haji said.

Haji has even hired former DPP Philip Murgor, ex-Mayor Taib Ali Taib and lawyer James Kihara to provide special legal services to the Office of the Director of Public Prosecutions.

Taib was the one prosecuting Rotich and his fellow accused in court on Tuesday.