Who's blocking justice? EACC-ODPP rift stalls high-profile corruption cases

The Ethics and Anti-Corruption Commission (EACC) has made proposals to have prosecutorial powers that would see cases they investigate go through to court, even as it decried withdrawal of cases without being consulted.

This came during a session where Senators questioned what it considered as strained relations between EACC and Office of the Director of Public Prosecutions (ODPP), which has come in the way of fighting corruption in the country, citing concerns of unilateral withdrawal of corruption cases without consulting the Commission.

The issue was raised yesterday when EACC officials, led by Chairman, David Oginde and Chief Executive Officer Abdi Mohamud appeared before the Senate County Public Accounts Committee to provide updates on corruption investigations originating from counties.

Mohamud said that from 2017 to now, 17 cases have been withdrawn from court by ODPP and only one consent was issued and subsequently withdrawn by ODPP compared to zero withdrawal between 2013 and 2016.

In some instances, he said cases are withdrawn without even calling a single EACC witness.

Oginde said EACC has severally found itself on the receiving end as Kenyans seek to understand why cases don’t proceed, with the public raising concern that they are not seeing results of the work the Commission, yet taxpayers’ funds are being utilised.

He said one of the issues of concern for EACC is the design of the legal framework, explaining it is such that it would appear to be for the accused persons or the suspects rather than to fight corruption.

The Chairman said the Commission spends a significant amount of money to investigate cases and when they don’t come through, it is not only a discouragement but also loss of public resources whereas Kenyans want to see the fight against corruption succeed.

“We have said before that it would be good for us if we take our cases all the way through to court,” Oginde told the committee.

“Even after we have done our work to the best of our ability, and our processes are quite rigorous and as a person who has been in the Commission for more than two years, and coming from the outside where I was among those complaining against corruption cases, but after joining EACC, I can tell you that our teams work hard,” he added.

He said the process for a case to be taken from the point of a reporting to the ODPP is rigorous and when the Commission sees cases that move to the point of getting to court, then it does not succeed, EACC officers are disheartened.

“Sometimes our investigators are discouraged when they see their work failing to bear fruit. Something needs to be done to ensure that the work done by our teams succeeds, because some of these cases, especially in big corruption cases, a lot of money is spent in the investigative process with some going across borders to collect evidence,” he said.

Oginde explained that in civil cases, the law allows EACC to take their cases all the way through the courts.

“Our counterparts in Zambia, who visited us recently, take their cases all the way to court,” said Oginde.

He explained: “This is something that we need to look at but at the moment, the Constitution, provides that the prosecution, the DPP, is the only person who can prosecute and have the sole responsibility to decide which case goes forward or withdrawn, and there’s no other person who can intervene on that matter.’’

Nandi Senator, Samson Cherargei questioned the relationship between EACC and ODPP saying there could be bad blood between the two and there is need to establish the weakest link in the fight against corruption.

“If there is a problem, tell us because we are the law makers. If ODPP is the weakest link against the fight against corruption, accept it, so that we can know where the problem is. There is a disconnect from that action you say you are not consulted. You need to tell us if EACC needs prosecutorial powers so that the fight against corruption can be achieved, so be it,” said Cherargei.

Nyamira Senator, Okong’o Mogeni decried the manner in which some of the matters are run in the country saying that if there is need to amend the Constitution for EACC to have prosecutorial powers.

“How can we run the country so casually? If there is a problem between EACC and ODPP let us know so that we can agree on how to fix it, if we sweep the matter under the carpet and we will not be helping the country. It seems there is a disconnect,” he said.

Isiolo Senator, Fatuma Dullo also said: “It is like EACC is toothless and since tax payers’ money has been used to investigate then we end up losing the cases, we are here to fill the loopholes.”

EACC cited the inquiry into allegations of abuse of office and fraudulent acquisition of public funds by six Members of Makueni County Assembly and other County Assembly officials for a trip to United Arab Emirates (Dubai) which had been fully funded by the then Member of Parliament as one of the cases that was dropped without any consultations.

The CEO said no witness had testified at the point of withdrawing.

“The DPP made an oral application on February 13, 2023, seeking to withdraw charges against a seventh accused person, citing insufficient evidence to support the charges against the seventh accused person. The court allowed withdrawal of the case against the seventh accused person on February 13, 2023 and the matter was withdrawn entirely on February 12, 2024,” said Mohamud.

Another case they cited the inquiry into allegations of corruption and procurement irregularities against Tharaka Nithi Governor, Muthomi Njuki and Government officials in the procurement and award of tender to supply, install and commission a waste incinerator.

The case was later referred to Embu and no witness had testified.

The DPP made an application to withdraw charges against all accused persons following a request from the first accused person. The reason given was to review the evidence in the file on request from the first accused person. The court allowed withdrawal of the case against all the accused persons on August 6, 2024,” said the CEO.

Another one was on inquiry into allegations of embezzlement of public funds amounting to Sh233.5 million by officials of Garissa county.

The CEO told the committee that on May 8, 2023, an application for withdrawal of the case was filed by the DPP, adding that review of the evidence had established that the funds misappropriated had been refunded.

“DPP indicated that review of the evidence had established that the funds misappropriated had been refunded. The case was withdrawn under Section 87 (a) of CPC against the accused persons on May 23, 2023,” the CEO said.