Director of Public Prosecutions Noordin Haji has handed politicians a major reprieve after he slammed brakes on their prosecution over graft until after the August polls.
The DPP, in an exclusive interview with the Star, said his office has halted approval of corruption files linked to any politician during the electioneering period.
"We don’t want to be accused of making decisions based on political leanings,” Haji said.
The DPP said his office will uphold international best practices on the prosecution of politicians accused of corruption, especially during election campaigns.
“As ODPP, we have a policy that in the run-up to the election, political files will not be acted on until after the elections. This is the practice globally,” he said.
This means that the DCI and the EACC will proceed with their anti-corruption investigations but the ODPP will not grant prosecution, at least until after the polls.
The directive will slow down the arraignment of political heavyweights currently facing prosecution for graft-related charges.
Last month, the EACC said it had concluded investigations into corruption allegations involving three governors.
The agency said the files were ready for the immediate prosecution of governors Anne Waiguru of Kirinyaga, Tana River's Dhadho Ghodana, and Lamu’s Fahim Twaha.
However, the DPP's order will jolt the prosecution plans.
Haji said there would be no harm waiting for some months for the political season to slide away.
“Most of these files have taken two, three years to be investigated. Another three months for us to make the decision to charge cannot harm anyone,” he said.
The DPP defended his decision, insisting that given that prosecution does not lead to an automatic ban of any politician from running for office, there should be no hurry.
He said Kenyans should be allowed to make their own choices on the kind of leaders they will elect in a democratic manner.
"The fact that the files have been forwarded, the public would be able to make a decision on whether such individuals should be elected or not,” he said.
"Even in the case this office was to make any decision to charge, these individuals can still run for office.”
This is a big win for politicians eyeing governor, MP, senator and MCA seats but who are under investigation over corruption.
Deputy President William Ruto has been accusing investigating agencies, including the Directorate of Criminal Investigations and the Ethics and Anti-Corruption, of running political errands.
Some of the DP's allies, including some governors and MPs, are either facing prosecution or under graft investigations.
Ruto has said they are being persecuted for standing with him after falling out with President Uhuru Kenyatta.
Speaking in London last month, Ruto alleged that the country's criminal justice system had been whipped to hound his allies with the aim of harassing and intimidating them into submission.
On his part, Haji said none of the cases under review fall within the threshold for debarment.
“We are reviewing the files and we will make the decision to charge. Some of the files have not reached the threshold that we require so they will be returned to the EACC for further investigations,” he said.
The move would be a blow to efforts to enforce the integrity and leadership law to bar graft suspects from running for political office.
The Independent Electoral and Boundaries Commission has been under pressure to strictly block politicians facing corruption cases from the ballot.
But the DPP warned that only those who have been convicted for corruption cannot be allowed to run for any office.
“Constitutionally, it is only when you are convicted for six months and above, then you will be barred from vying for elective office,” he said.
“You will only be barred if a conviction is delivered. There is nothing that we can do about it. At the end of the day, it is the voter who will make that decision.”
But impeached governors are permanently banned from running for any political office.
“Those ones can’t run. Once impeached by the Senate, they are barred from running. That is something that IEBC will make a decision on,” Haji said.
Some of the governors who were impeached include ex-Kiambu county boss Ferdinand Waititu and former Nairobi Governor Mike Sonko. Waititu is seeking Ruto's UDA party ticket to recapture his seat.
Wajir Governor Mohamed Abdi, who was impeached, was reinstated by the courts.
At least 25 MPs face charges relating to alleged infractions at the National Government-Constituency Development Fund (NG-CDF).
The Constitution says that anyone found to have “misused or abused a state office or public office or in any way contravened Chapter Six” should be barred from seeking elective office.
However, it is IEBC that will make the final decision when clearing candidates for election.
Governors and other politicians who are yet to be charged have a reason to smile following Haji's brakes.
The EACC had last month recommended 12 counts of abuse against Lamu's Twaha.
The governor alongside the county secretary and the head of county public service are accused of employing staff without following recruitment procedures.
In Kirinyaga, EACC wants Waiguru charged with irregularly receiving travel imprest amounting to Sh10.6 million.
It is alleged that the trips were either non-existent or non-official, hence, were not a proper charge on public funds.
In a report published in the Kenya Gazette, EACC said its investigations revealed there were no documents indicating that the governor was invited on the trips.
“There were no documents supporting the inclusion of other county officials who attended the trips,” the anti-graft agency said.
In Tana River, EACC recommended charges against the governor and the Roads executive over irregular procurement of motor vehicles and motorcycles.
EACC said its investigations revealed that the tendering process was flawed, citing issues with the evaluation and professional opinion.
The anti-corruption commission sought speedy action by the DPP on the files.
“We have our facts, let the DPP give his consent and we believe our cases against most governors are watertight,” EACC chief executive officer Twalib Mbarak said.
But Waiguru accused the Ethics and Anti-Corruption Commission of being used to settle political scores.
This came barely days after Deputy President William Ruto accused the EACC and other state agencies of being used to stifle dissent.
As ODPP, we have a policy that in the run-up to the election, political files will not be acted on until after the elections. This is the practice globally
There has been a prevailing assumption that persons seeking reelection or fresh mandates risked being barred from vying.
Stemming from the Obita Dicta of Mumbi Ngugi in her July 25, 2019 ruling, graft suspects holding state offices have had to stay away from office when charged.
The High Court ruling dealt a blow to governors facing graft charges.
The EACC had also recommended the prosecution of Gatundu South MP Moses Kuria on charges of fraudulent acquisition of public property, conflict of interest, and dealing in suspect property.
Another investigation was into allegations that Kuria’s siblings and close allies’ companies did business with the Gatundu South NG-CDF.
Governors Muthomi Njuki of Tharaka Nithi and Garissa’s Ali Korane have their graft cases pending in court.
When asked about the investigations into the multibillion-shilling queries into Covid-19 purchases by the Kenya Medical Supplies Authority, Haji said EACC has the answer.
“The files are with the EACC. We had forwarded them back with areas to cover and recommendations of how the investigations should proceed,” the DPP said.
“Once they return them to us and we are satisfied, we will proceed and charge,” he said.
The DPP said there was no need to rush, pointing to insufficient evidence to sustain a charge against those implicated in the Kemsa losses.
“We cannot simply rush to make decisions to charge without the requisite evidence. The problem has been that we do that, the cases are bound to fail in court,” Haji said.
Edited by Henry Makori
