Waititu says 2 witnesses in Sh588m graft case were accomplices

Impeached Kiambu Governor Ferdinand Waititu has started fighting his Sh588 million corruption case, arguing in court that the charges are founded on malice and are part of witch-hunt by the office of the Director of Public Prosecution (DPP).

Mr Waititu on Thursday presented his arguments before Senior Principal Magistrate Thomas Nzioki at the Milimani Law Courts, a day after his removal from office.

He said two witnesses in the case - former Finance Chief Officer Faith Njeri Harrison and former Director of Supply Chain Management Justus Bundi Kinoti - carried out the financial transactions that saw him get arrested and charged in court.

Through lawyer John Swaka, Mr Waititu sought to have statements by the two expunged from the records.

He also wants them treated as accomplices in the tender scam.

The court heard that Ms Njeri approved payments to contractors while Mr Kinoti coordinated the award of the tender and offered his professional opinion.

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Mr Swaka noted that the two former employees held senior and influential positions in Mr Waititu’s government.

“The two played fundamental roles in the transactions touching on the substance of the case. They participated in the mischief that this court seeks to correct," he said.

"They made decisions and approved that which has turned out to be an offence before this court."

"SET-UP"

The lawyer further said their testimonies were tailored to tie Mr Waititu to the graft case and keep them from being prosecuted.

“If any illegality occurred, it was due to their acts. No offence was perpetrated by the applicant. Article 10 (b) and (c) calls on public officers to uphold good governance, integrity, transparency and accountability in exercise of their functions. The question is whether there was real accountability for them to qualify to be witnesses in this case," he said.

“All public servants ought to be accountable for any commission or omission that may lead to an offence. All persons are equal before the law and have a right to be protected by the law. The court should be fair, equitable and protect rights of accused persons,” he added, terming his client’s trial a case of "selective prosecution".

RESPONSIBILITY

Mr Swaka further noted that Ms Harrison and Mr Kinoti acknowledged that they had responsibility.

He further claimed the prosecution failed to charge them but "set up Mr Waititu to bear the brunt of their failure to comply with the law".

“Mr Waititu is not responsible for the mishaps that occurred in Kiambu. The persons purporting to be witnesses ought not to be witnesses based on their participation and, at the very least, should be joined as accused persons."

He further told the court that the evidence the two presented will be prejudicial as they are "the biggest contributors of witch-hunt" against his client.

DISCRIMINATION

The court further heard that it is discriminative for the DPP to charge Mr Waititu while "sugar-coating" the actions of other government servants, who played integral roles in the alleged offence.

Mr Swaka said the ODPP has the constitutional obligation of accountability for its administrative acts or omissions that lead to any breach.

“Either the two witnesses [step into the] dock and answer charges on breach of administrative acts like the governor, or wholly have their statements expunged from being relied on in the proceedings," he said.

"Mr Waititu has a right to a fair trial as enshrined in Article 50 of the Constitution."

DPP'S ARGUMENTS

In response, assistant DPP Vincent Monda and Nicholas Mutuku urged the magistrate to dismiss Mr Waititu’s application, saying it amounted to abuse of the court process and lacked legal basis.

While also describing the application as misconceived, the prosecutors said the two former officials were yet to be introduced to the court as witnesses.

Mr Mutuku termed Mr Waititu's move a threat to witnesses set to testify against him, his wife Susan Ndung'u and 10 other people.

The prosecutor also accused Mr Waititu of intending to delay determination of the case, through a plea that he said will only lay obstacles along the path to justice.

On the matter of witnesses, he noted that suspects do not suggest the people who should be in the list.

He explained that it is the constitutional duty and mandate of the DPP to lead evidence which he deems fit in the pursuit of jusitce.

“Mr Waititu has not told the court the prejudice the evidence of the two will cause his case,” he also told the magistrate.

DPP'S RIGHTS

Regarding violation of the impeached governor's rights, Mr Mutuku submitted that the magistrate’s court lacks jurisdiction to address such matters as the responsibility lies with the High Court.

On Mr Waititu’s submission that the two witnesses are influential, Mr Monda said the court had not been told of the impact on investigations.

He also said Mr Waititu will not be prejudiced if Ms Harrison and Mr Kinoti testify against him, and that the DPP is free to call any witness.

He added, “The DPP disclosed all material evidence to the defence, including statements and exhibits. [This was disclosed] to the defence, not to the court, therefore it cannot be said that they are part of the court records."

The court will rule on Mr Waititu's application next Tuesday.