DPP’s tough test in fraud probe

The Director of Public Prosecutions (DPP), Mr Keriako Tobiko, is facing what is possibly the biggest test since he assumed office less than three months ago.

Mr Tobiko is expected to act on corruption case files forwarded to him by the Kenya Anti-Corruption Commission (KACC) related to a parastatal within the ministry of Water and Irrigation that is chaired by his younger sister.

The DPP is expected to decide whether to prosecute Water and Irrigation minister Charity Ngilu as recommended by KACC. He has received files from the anti-corruption agency, some of which specifically relate to the troubled Tanathi Water Services Board.

The firm is chaired by his younger sister, Ms Peris Pesi Tobiko, who was appointed to the position on March 23, about three months before her brother assumed the office of DPP.

One of the case files touches on Mrs Ngilu herself where the anti-graft agency has recommended that the minister be prosecuted for alleged fraud and abuse of office after she allegedly commissioned an incomplete borehole in Kangundo.

Mrs Ngilu has since termed the KACC report a witch hunt, saying the agency —which is being replaced by the Ethics and Anti-Corruption Commission — was conducting selective investigations.

She has also blamed Vice-President Kalonzo Musyoka and Ukambani political supremacy battles for her tribulations at the Water ministry. But Mr Musyoka has denied the accusation.

Last week, Mr Tobiko said his office was examining the files with a view to deciding whom to prosecute based on the evidence presented by KACC. That decision will be made public, he said.

According to the Kenya Gazette notice no 3260, the minister, in exercise of powers conferred on her by Section 51 of the Water Act 2002, appointed Ms Tobiko to chair Tanathi Water Services Board for a period of three years.

When Ms Tobiko’s appointment was made, the DPP was an officer under the Attorney-General’s office, and it was the former AG, Mr Amos Wako, who had the final say on all public prosecution matters.

However, the new Constitution gives the DPP powers to initiate, take over, revive or terminate criminal proceedings against any individual without seeking direction or consent from any authority.

It also gives Mr Tobiko powers to direct the police to launch investigations into any matter he deems criminal without seeking direction from any quarters.

Contacted for comment by the Sunday Nation, Ms Tobiko dismissed concerns that her appointment at the height of graft investigations by KACC was meant to appease the prosecution authorities or to pacify her brother.

“I am my own person, very different and independent of my elder brother. I was appointed by Mrs Ngilu to chair Tanathi Board purely on merit while Keriako (Mr Tobiko) was appointed after a very rigorous vetting process,” Ms Tobiko said.

She added: “I don’t see where the conflict arises because I am a non-executive director at the Board and not directly involved in the day-to-day running of its affairs other than chairing quarterly board meetings.”

During the heated debate in Parliament to approve judicial service nominees, Mrs Ngilu supported Mr Tobiko’s appointment.

According to the parliamentary Hansard report of June 15, Mrs Ngilu told Parliament that she “vehemently supported” Mr Tobiko’s nomination and that if the House did not pass the name of Mr Tobiko, it will be “wrong and discriminatory”.

“We watched on television all those who came before the committee and opposed the nomination of Mr Tobiko and if you look at them you just say; this is a case of sour grapes. These are people who opposed his nomination because they wanted the same position,” the minister told the House.

“Mr Deputy Speaker, Sir, they made allegations that could not be contained and one could not understand. If this House does not pass the name of Mr Tobiko, it will be wrong and discriminatory.”