Prosecute minister for CDF fraud, says judge

The State can now prosecute an assistant minister accused of misusing Constituency Development Funds in his constituency.

Judge Mumbi Ngugi on Friday ruled that the prosecution of West Mugirango MP James Gesami in a Kisumu magistrate’s court was not a violation of his constitutional rights.

She also said the Director of Public Prosecutions, Mr Keriako Tobiko, was justified in preferring corruption charges against the Health and Sanitation assistant minister.

“I find no evidence to show that Dr Gesami’s rights are being violated or his arrest and subsequent arraignment in a court will expose him to inhuman and degrading treatment,” ruled the judge.

In July last year, the Kisumu court issued a warrant of arrest for Dr Gesami for not appearing in court to answer allegations of failure to comply with a tendering law.

It was alleged that as patron of the West Mugirango CDF committee, the MP procured the services of a construction company to repair the Kebirigo –Mogobeti road at a cost of Sh2.4 million without prior planning in 2010. (READ: Warrant of arrest: Gesami sought for misuse of CDF)

The MP then moved to the High Court claiming that it is prejudicial to be taken to a criminal court since he was a public officer and risked losing his post as an assistant minister.

He got a reprieve after Justice Fred Ochieng issued a conservatory order restraining the police or the Kenya Anti-Corruption Commission from arresting or prosecuting him in connection with the misappropriation of CDF funds until the case was heard and determined.

The MP had submitted that investigations that resulted into proceedings in the resident magistrate’s court in Kisumu were done in gross violation of his constitutional rights and with ulterior motive meant to expose him to inhuman and degrading treatment.

However, Lady Justice Mumbi ruled that there was nothing wrong with the MP being investigated. “There was no malice in preferring charges against the petitioner,” she said.

The judge dismissed submissions by the MP that the DPP had no authority to prosecute him, saying that the Constitution gave the DPP power to prosecute any person in Kenya.

The judge added that the Ethics and Anti-Corruption Commission had the authority to investigate any graft allegations, dismissing claims by the MP that it was the Auditor-General who should have recommended his prosecution if he discovered discrepancies in the CDF kitty.