Eyes on investigative agencies as MPs unmask firms in Kemsa scandal

Anti-graft agencies quietly trade blame on the actionable elements of the case file

In Summary
  • DPP has maintained the checks for sufficient evidence is a process.
  • EACC says the primary responsibility to prevent corruption rested with Kemsa officials.
Kemsa depot in Nairobi's Industrial Area
Kemsa depot in Nairobi's Industrial Area

The Directorate of Public Prosecutions and the Ethics and Anti-Corruption Commission have come under sharp focus following MPs’ fresh recommendation for investigations into the Sh7.6 billion Kemsa PPE loss.

Investigations commenced August last year but not a single person has so far been prosecuted as state officials engage in push and pull.

However, the Public Investments Committee of the National Assembly last week recommended the investigation and possible prosecution of Kemsa board members and some of the authority’s senior staff over the alleged loss.

The Mvita MP Abdulswamad Nassir-led committee recommended that the EACC investigates former chairman Kembi Gitura, Joel Onsare and former Kemsa board members.

Also facing probe are suspended CEO Jonah Manjari, director of procurement Charles Juma, Finance director Waiganjo Karanja, and head of legal Ferdinand Wanyonyi for what MPs said was dereliction of duty.

PIC also invited the anti-graft agency to investigate the top Kemsa management on how it processed payments to some suppliers as well as officers that forged documents.

The recommendations by PIC have cast spotlight on the investigative agencies’ delays in concluding the Kemsa case.

The events attributed to a push and pull between the agencies has seen those implicated remain free months after investigations by EACC were concluded.

President Uhuru Kenyatta had on August 26, 2020 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," he said.

"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,” Uhuru added.

Whereas DPP Noordin Haji recently said the Kemsa file is at the EACC, the latter holds that it had concluded the matter.

The DPP told journalists on September 13 that there was a lot that needed to be done on the Kemsa file to come up with a watertight case.

“Investigations are not completely finished. We are working together with the EACC to ensure we are able to bring a case that has evidence,” Haji said.

“It will take time but on the day we will present it, it will be a strong case,” he said, citing the Kimwarer dam case that took nearly two years over documentation and mutual legal assistance.

But for its part, EACC holds that it had concluded the initial stages of the investigations targeting those with primary responsibility as communicated in March 2021.

EACC says the primary responsibility to prevent corruption rested with Kemsa officials, and is thus is in agreement with PIC in the recommendation to charge the officers.

The commission in December 2020 recommended the prosecution of several directors of companies implicated in the PPE scandal.

In a gazette notice published on March 26, EACC recommended that the directors of the firms be prosecuted for flouting procurement rules.

The probe, the commission said, revealed that the tendering process was commenced by suppliers who submitted intent letters before being given commitment letters.

“We believe we have done our part as EACC and concluded the probe with recommendations for action against the persons with primary responsibility. That remains our official position,” said a senior EACC official who did not wish to be named as he is not authorised to speak to the press.

But the DPP has maintained the checks for sufficient evidence is a process. “Where we feel there is no evidence, we cannot forward the file to the court.”

In its report released last week, PIC said owners of non-prequalified firms were paid part of the Sh4 billion irregularly expended by Kemsa.

PIC argued that Kemsa irregularly used direct procurement to source for the supplies where commitment letters were issued to suppliers and processes followed after the goods were delivered.

“Use of commitment letters is not provided for in the procurement law, a fact that was admitted by all suppliers that appeared before the committee,” the PIC report reads.

PIC observed that requisitions were not done, there was no prior approved budget, and irregular use of direct procurement.

“There was no evidence that  Kemsa contacted and exhausted existing prequalified suppliers to deliver the Covid-19 response items,” PIC said.

“Further, there was no advertisement or notification for all prospective suppliers.”

MPs have thus recommended that the firms refund the cash, more so in instances where they sold to Kemsa above the prevailing market rates at that time.

The MPs said one the firms irregularly netted Sh270 million while another was unprocedurally paid Sh180 million.

Another non-prequalified firm did a business of Sh180 million but was paid Sh182 million.

Some of the firms under review had been in existence for less than one a year hence “could not be deemed to have had the necessary qualification and experience in the supply of specialised medical equipment.”

-Edited by SKanyara