By Henry Owino
Nairobi, Kenya: Kenya Human Rights Commission (KHRC) and Transparently International-Kenya (TI-Kenya) in a joint press statement have given the Office of Director Public Prosecution (ODPP) two weeks to pick up and review the collapse case of Arror and Kimwarer dams. This follows the pressure from the public who are demanding to know reasons behind the defeat of the controversial case involving senior government officials.
Across the country, Kenyans have been up in arms from December 14, 2023 when the anti-corruption court dismissed the dams case. The case linked former Treasury Cabinet Secretary Henry Rotich and eight others to fraud worth Ksh 63 billion.
The court’s decision meant that the prosecution failed to lead the case and called only 8 out of 49 witnesses. Consequently, the other 41 witnesses were not cross-examined in what appeared to be a carefully choreographed prosecution-led acquittal.
The 63 Billion Kshs would have been used to build two major dams in Kenya, Arror and Kimwarer which were to sort the inadequate water supply in the country.
KHRC and TI-Kenya in a joint press statement said from the outset, the court observed that the prosecution’s approach was designed for failure, characterized by reckless dereliction of duty. This hinted to the Human Right Organizations that the collapse of the Arror and Kimwarer case is due to ODPP politically captured and part of a conspiracy to defeat justice.
“From our keen observation as KHRC and TI-Kenya, the DPP is responsible for the collapse of the case we hereby give the ODPP two weeks to pick up the matter and review it. Kenyans want to know if money was actually stolen or not and who is responsible for the theft,” KHRC and TI-Kenya said.
The Human Rights Organizations however said, they had foreseen the outcome and so the verdict did not come as a surprise to them. This is because even various stakeholders including the civil society, the judiciary, and the public, had consistently voiced concerns regarding the ODPP’s handling of the high criminal cases, especially those with political connections.
“We observed a worrying pattern emerging where cases have fallen apart due to withdrawal by the prosecution or ended in acquittals because of poor prosecution,” the two-organizations affirmed in one accord.
According to Davis Malombe, KHRC at some point, the case became evident that the prosecution was committed to deliberate failure. The trial faced continuous frustration, prompting both Magistrate Eunice Nyutu and High Court Judge Nixon Sifuna to openly call out the prosecutors in charge of the case; Geoffrey Obiri and Oliver Mureithi.
The management of the case exemplified what can be termed as “prosecution -assisted acquittals”. The prosecution mischievously outdid the defense counsel’s efforts in securing the release of the suspects.
Malombe calls upon DPP Renson Ingonga to know that prosecutorial powers are not a play that can be exercised at whims between his office and political power holders to absolve suspects with political connections. The deliberate undermining of cases for political reasons is not recent development, the pattern began in the reign of former DPP Noordin Hajj.
Malombe regretted that despite the former DPP’s public assurance that charges were only filed when fully satisfied, the cases met the evidentiary threshold to secure a conviction which in criminal cases must be beyond a reasonable doubt. Unfortunately, his office frustrated the same matter with the same evidence and the same witnesses that informed their decision to charge.
“ODPP is such a critical component in the criminal justice system, and the right to justice and so to the fight against corruption must not be handled with such casualness,”Malombe pointed out.
On behalf of the general public, Sheila Masinde Executive Director, TI-Kenya said the demand from DPP are as follows: Assert authority, by seizing the Arror and Kimwarer case, redirecting it towards its foundational principles, raison d’etre, and constitutionalism. Immediate and decisive actions are required. This entails promptly assuming responsibility for the issue and undertaking urgent remedial measures.
It is crucial to identify any personal culpability among his officers that led to the wrongful identification of the 41 witnesses as credible if indeed they were- subsequently, the DPP should initiate a swift process to ensure that the actual culprits are brought to court and charged accordingly. If Rotich and eight others were the real suspects, they must face the law again.
Sheila emphasized that if the DPP does not act swiftly, then they will take the requisite legal measures including individual action against the relevant officers in the ODPP who acted outside the principles of the Constitution and the law in handling the case.
Sheila said the dropping of the case has led to the loss of public resources including financial and human resources spent on the investigation, prosecution, and adjudication of the matter.
They further demand that former CS Rotich and the eight other suspects involved in the Arror and Kimwarer dam case should be barred from public office appointments. Their acquittal is suspect and requires a comprehensive, independent investigation to examine the circumstances surrounding the collapse of the case thoroughly.
