Keriako Tobiko in the spotlight after letting ministers off the hook

The decision by Director of Public Prosecutions Keriako Tobiko to clear some Cabinet secretaries of abuse of office charges has placed him in the spotlight as investigators dig into 175 cases touching on top government officials.

Mr Tobiko let off the hook Cabinet secretaries Kazungu Kambi (Labour), Charity Ngilu (Land) and Felix Koskei (Agriculture) but a court date is beckoning for Transport CS Michael Kamau.

But there has been no word from either the Ethics and Anti-Corruption Commission (EACC) or Mr Tobiko on suspended Energy Cabinet Secretary Davis Chirchir.

EACC, Mr Tobiko’s officer and the Directorate of Criminal Investigations have been working together on the allegations against the 175 suspects who were mentioned in EACC dossier that President Kenyatta handed to Parliament on March 26.

The team, Sunday Nation learnt, had even relocated to an office in Ngong area to avoid distractions as they considered the allegations before EACC made its recommendations to Mr Tobiko.

Mr Tobiko was on Saturday categorical that he is transparent and is the sole decision maker on who should face charges.

“We came up with this team to ensure investigations are complete before the files come to me. And this is what they have been doing. The time that the files take to reach me has shortened,” he said.

“And you must appreciate I have always issued a statement to the public saying what EACC has recommended and when I make the decision… It’s a transparent process,” he added.

According to the law, Mr Tobiko is not bound by EACC’s recommendations and should not take directions from any other quarters.

“Majority of the files on the Cabinet secretaries were sent to me directly and 15 prosecutors have been doing nothing else other than combing through them. We have been as transparent as much as we could be,” he said.

UNDERWHELMING

While the President had created the impression that his government would take strong action to rein in high levels of corruption that has blighted his young administration, ICJ-Kenya Executive Director George Kegoro said the results so far have been underwhelming, with all the high-end suspects now likely to escape prosecution.

“At the end of the 60-day deadline provided by President Uhuru Kenyatta for the commencement of accountability against the runaway corruption that has affected his government, there’s little clarity on what has been achieved or what the legacy of the president’s action is likely to be.

“While the high-profile suspension of five Cabinet secretaries was seen as a bold move, calculated to reverse a pervasive public opinion about a perceived doubtful political commitment to the fight corruption, it now looks that only one of them, Transport Secretary Michael Kamau, is likely to face charges in court,” said Mr Kegoro.

According to Law Society of Kenya Secretary Apollo Mboya, the question about the criteria Mr Tobiko applied to close certain files as he proceeded with others is not lost to the potential defence lawyers.

“That question is very valid and any astute defence counsel would likely raise the same,” said Mr Mboya.

However, Mr Mboya said, any criticism of the DPP should be against the provision of Article 157 (9 &10), largely on the powers of the DPP. Article 157 (9) provides that the DPP can delegate his powers to subordinates “acting in accordance with general or special instructions”.

“If the subordinate officers are acting on general instructions, the public may not know to what extent they participated in the joint team,” said Mr Mboya.

Article 157 (10), meanwhile, allows the DPP to apply his own mind to agree or disagree with officers of other investigative agencies.

“When he is exercising that power under Article 157 (10), he must, however, have regard to public interest, interest of administration of justice and the need to avoid and prevent abuse of legal process. On this, the Constitution has given him broad powers to act on his own on what he considers is in the best interest of the law,” said Mr Mboya.

The DPP’s decisions, he added, must also balance against the Bill of Rights that one is innocent until proven guilty, and also that an accused is entitled to fair hearing.

CONCURRENCE LEVEL

EACC Deputy Secretary in charge of operations Michael Mubea told Sunday Nation that there is nothing legally unusual about Mr Tobiko rejecting some of their recommendations despite their teams having worked together.

“The public and the media, in particular, should avoid making a mountain out of an ant hill. EACC is an investigative agency and we come up with our recommendations based on the evidence we get,” said Mr Mubea.

The DPP, he added, also evaluates that evidence on his own and when satisfied, he proceeds to charge suspects.

Mr Tobiko said there has been almost 100 per cent concurrence level between his office and the EACC.

“I do not want to make decisions just because it is convenient or popular. The two institutions are working very, very well. They investigate, I assist them to investigate. But in terms of the decision to prosecute; that is my decision,” the DPP said.

According to the DPP, out of 175 individuals in the EACC dossier, his office has received 26 files out of which he has only disagreed with EACC on three matters “and I gave my reasons.”

“It cannot be that my office is a rubber-stamping organ. Those we have charged and those that know we will charge are working overdrive to contaminate the media. For them, they will go into Christmas party if the two institutions are not working together. But they will be greatly disappointed,” he said.

In his analysis, Mr Kegoro had argued that the recommendation to charge Mr Kamau was part of wide central Kenya political intrigues. There are allegations that his prosecution is motivated by a desire to create space for retired Chief of the Defence Forces Julius Karangi in the Cabinet.

“Interestingly, the substance of the allegations against Kamau has changed over time. While, originally, Mr Kamau was implicated in the alleged irregular award of a tender for the Greenfield Terminal at the Jomo Kenyatta International Airport in 2012, when he served as Permanent Secretary for Roads, the latest media reports indicate that he is now accused of ignoring a consultant’s design of a road under construction without following procedure and allowing the construction to go ahead,” said Mr Kegoro.

Mr Kamau is accused of colluding with officials of the Kundan Singh Construction Company, which is building the Kamukuywa-Kaptama-Kapsokwony-Kimilili road, to trash the consultant’s design, resulting in massive embezzlement of public funds.

“It is not clear how the original allegations against him were resolved, whether the new charges are a determination to get at him at all costs, or when these surfaced,” said Mr Kegoro.

Meanwhile, despite being let off the hook, Mr Kegoro argued that Mrs Ngilu’s tenure at the Land ministry has seen a litany of controversies related to corruption like the 2013 take-over of Nguruman ranch in Narok by morans who evicted a foreign owner, and the saga over Karen land.

The controversy surrounding the ownership of Weston Hotel in Lang'ata, Nairobi, also occurred during her time.