Haji: I willl rededicate and reinvigorate the effort against corruption

In this interactive series, we invite our readers to send in questions to selected public figures. Answers will be published in the next print and online editions. This week, Director of Public Prosecutions Noordin Haji responds to your questions

1. Your predecessors made impressive promises towards addressing economic crimes and in particular corruption by the high and mighty. You are no different. What assurance do we have to make your words a reality? Mahmoud Maawy, Nairobi

I understand Kenyans’ frustrations. I am tired too. There were and have been a number of high-profile cases filed against the so-called mighty. We have had a number of high-profile convictions, the latest being the case against Permanent Secretary Sammy Kirui and others. We have cases pending against Cabinet Secretaries, Principal Secretaries, parastatal chiefs, MPs, governors and senior county officials.  I shall rededicate and reinvigorate the effort against corruption and all economic crimes.

2. Since last year, Kenyans have been complaining of inflated power bills and third-party token vendors who may have been irregularly procured but are fleecing consumers. Following public pressure, Kenya Power bosses and senior officials from the ministry of Energy have publicly apologised. What are public institutions such as your office doing to bring to book those who collude to steal from the public?  Judy Chaacha, Kuria

We received a formal complaint on April 11, 2018, and are awaiting the outcome of a civil court process to determine the appropriate action. 

3. Ideally, all offenders should be punished appropriately. But in Kenya, the story ends at parading the offenders for public relations purposes. Some of those charged with arresting and meting out the appropriate punishment to the offenders get “bought.” What will you do differently to ensure justice is not for sale? Wilson Macharia, Nairobi

The constitutional mandate of the Office of the Director of Public Prosecutions is to conduct prosecutions. We will institute a performance management system and establish an independent inspection unit that will continuously monitor prosecutions and prosecutors. I will work to enhance cooperation amongst agencies and scale up prosecution-guided investigations to ensure evidence is watertight. In addition I am establishing an internal affairs division that will enforce the code of conduct for prosecutors. 

4. There have been complaints from the public on the effectiveness of your office in prosecuting cases. It has been said that your office has sometimes deliberately given the Directorate of Criminal Investigation (DCI) ambiguous instructions, which leads to shoddy investigations and weak evidence to secure convictions.  What is your take? Francis Njuguna, Kibichoi

Under the Constitution, investigation is the mandate of the police. The DPP gives directions on sufficiency of evidence and public interest where prosecution is warranted. There is no case where the DCI has complained of what you are alluding to.

5. I was employed by the Teachers Service Commission (TSC) in 1982 and dismissed without a hearing in 1999. Since then, I have written over 20 appeals and TSC flagrantly refused to grant me a hearing. In 2016, I wrote to them asking to be paid my retirement benefits but when I went for tax clearance at the Kenya Revenue Authority I discovered somebody earned my salary for six years (up to 2005) after I was dismissed. I have suffered for almost 20 years without a job and won’t go for the Sh15,000 TSC wants to pay me. Can you help to investigate who was behind this scandal? I have evidence implicating senior people at TSC. John M. Kang’ara, Sabasaba

Once you become aware of a criminal offence, the place to report the suspected offence is a police station. However, Articl4e 157(4) allows my office to receive complaints/information on criminal matters and thereafter direct the police to investigate accordingly.

6. When you were appointed DPP, your first pledge was that ‘no one will be spared, no matter what the position or power. Sir, at Imperial Bank, we saw the biggest fraud in the history of Kenya’s banking industry involving Sh38 billion. The Central Bank spent Sh1.5 billion to pay Washington-based FTI for forensic audit. CBK and the Kenya Deposit Insurance Corporation have this report and they know who were involved in this mega theft. But nearly 30 months down the line no one has been charged, prosecuted or jailed. How will you be different from past prosecutors? Zoeb Tayebjee, Nairobi

All the banks that have had problems with depositors’ monies have had their senior management, and in some cases directors, charged in court. With specific regard to Imperial Bank the senior management has been charged together with the directors for the loss of Sh29 billion. The case is ongoing. This is a case of high public interest and an indication of corruption within the private sector. We are not only pursuing the directors and the management but also CBK officials who allowed this to happen despite numerous inspections.

7. Former Ethics and Anti Corruption Commission (EACC) officers led by Mumo Matemu were hounded out of office for failing to be “passionate enough” to undertake their responsibilities. With your privileged background, family and political connections, many of us now doubt whether you are “passionate enough” to fight corruption to the satisfaction Kenyans. Komen Moris, Eldoret

I come from a family with a civil service background and have had opportunity to live in many parts of this country from Nyahururu, Garissa, Mombasa, Malindi, Nakuru to Kakamega, among others. My sojourn in these places has allowed me to interact with and appreciate people from diverse ethnic, religious and economic backgrounds. I, therefore, understand the impact of corruption on communities and have the passion to fight corruption knowing that it exacerbates all threats to national security and development. 

8. Once again, we are hearing there is a possibility of theft at the National Youth Service. In the first such scandal, the prosecution failed to table sufficient evidence to convict any of the known architects, letting suspects off the hook. What will your office do differently this time to ensure there is conviction? Kamau Beka, Mumias

The court may have found the accused not guilty but my office has appealed against the judgement. I will employ a multi-agency approach and only cases which merit prosecution will be taken to court. Where there are gaps in a case, I am directing that the gaps be filled before a case is filed. My Office is developing the minimum standards that must be met before a case is filed.

9. Why has your office failed to take appropriate action on complaint ODPP/CAM/7/017/436? Other than acknowledgement, nothing else has been done. Kithinji Mwenda, Embakasi Nairobi

A letter was done on March 13, 2018 to our Lamu office seeking an update on the steps taken to resolve the complaint. We have received your other correspondences. I am now seized of the matter and we shall revert within 14 days.

10. What is your take on the issue of death penalty in Kenya and is it really necessary? Enock Koech, Kericho

I personally support it. The death penalty remains a valid sentence as contemplated under Article 26(3) of the Constitution. However, the Supreme Court of Kenya in Petition Number 15 of 2015, Francis Karioko Muruatetu and Wilson Thirimbi Mwangi – vs Republic & 6 others, delivered a judgment outlawing the mandatory nature of the sentence.

11. Last year, in this same forum, I asked former AG Githu Muigai why the Francis Nyenze report on pyramid schemes was not implemented.

The report was to be implemented by various agencies, notably, the Directorate of Criminal Investigations, the National Treasury and the Attorney General/DPP on aspects touching on their respective mandates. In cases where there was sufficient evidence, cases were filed in court, heard and determined. In several cases where the evidence was found to be insufficient as complainants were not able to backtheir claims, the cases were returned to the DCI.

12. Sir why can’t your office make use of expert lawyers from EACC to prosecute anti-corruption cases? Paul Gesimba, Nairobi

In the year 2000, in the Albert Gachiango case, the Constitutional Court found the merging of investigative and prosecutorial powers unconstitutional. Years later, in the wisdom of the drafters of our Constitution 2010, it was decided that investigative and prosecutorial powers be separated. This ensures checks which are critical for objectivity, fairness and a robust justice system.

13. What is the status of the investigations into the murder of the Meru University student leader? Paul Gesimba, Nairobi 

The ODPP received the investigation file from the Independent Policing Oversight Authority, reviewed the same and found outstanding areas to be covered. The file was returned to IPOA and is expected soon for prosecution.

14. You have joined the DPP’s office on a promise to lead with integrity and to spare no big fish in your prosecutorial duties. Impunity stinks to high heavens in this country and nowhere is this evident more than in the construction industry. The sector has been marred by shoddily constructed buildings that collapse, yet few people have been prosecuted. James Murimi, Kwale town

The ODPP has been prosecuting cases where there has been evidence of criminal culpability involving players in the construction industry. Indeed, the Huruma building case is in court and the matter is ongoing. I will robustly prosecute every case of this nature. I have already directed investigations  in respect to the Solai tragedy, and I assure Kenyans that there will be prosecutions if culpability is established.

15. What long term plans do you have to address bribery and corruption involving state counsel? Kithinji Mwenda, Embakasi, Nairobi

The ODPP does not and will not tolerate corrupt officers. A number of officers are currently on interdiction and have been charged in court. I have also directed that investigations be undertaken by DCI and EACC into the conduct of a number of officers implicated in corruption.

16. We, the residents of Embakasi South constituency, lodged a complaint with your office dated July 14, 2016 on embezzlement of public funds namely CDF for three financial years from 2013-2016. We provided all the evidence and correspondence and the investigation was conducted. Why is justice not being delivered to the poor residents ? Eric Ambuche, Nairobi

Kindly provide our offices with the relevant references of correspondence to enable us to respond appropriately.

17. All capital offences including murder and robbery with violence are now bailable in Kenya since the enactment of the 2010 Constitution. What is your opinion about this, considering that freed suspects endanger the lives of the plaintiffs? David N. Ndungu,  Mombasa

 It is true that all capital offences are bailable, but Article 49 (1)h provides an opportunity to the prosecution to oppose bail where there are compelling reasons. In a number of cases we have successfully opposed bail on grounds that the suspect might be a danger to not only the victims, but also the witnesses.

18. In Ragia forest station within Lari Sub-County of Kiambu County, the Community Forest Associations committees have misappropriated more than Sh5 million which they have been collecting from members. We reported this to the DCI and three persons recorded statements. At the end of last year I wrote a letter to the ODPP and your office referred me to Thika office which also referred me to the OCS Lari. The OCS said that he cannot act upon this case because he had not received a letter from the DPP. Why do investigating agencies seem reluctant to take action when such obvious crimes have been reported to them? Paul Wambugu Wanyaga, South Kinangop

I have called for the file from our Thika office to personally review the matter. You may get in touch with our complaints department in Nairobi for further information.

19. As ghost companies are paid with the help of senior government officials. Sir, how are you going to stop the plundering of hard-earned taxpayers’ money? How soon can we expect some big fish arraigned in court, not for public relations stunts but conviction? John Kiragu, Othaya, Nyeri County
There will shortly be persons arraigned in court to answer charges relating to this case. Thorough investigations are being undertaken by an investigative multi-agency team. Once completed, a thorough review will be undertaken by the DPP to determine charges to be preferred and against whom. The ODPP is preparing to ensure that it will have a good case for prosecution. 

20. Congratulations on your appointment. What steps are you going to put in place that will help in sealing loopholes in most of the corruption cases that you present to court which has unfortunately led to many acquittals? Andrew Maranga Ratemo, Malindi 
As I have said above I will employ a multi-agency approach and only cases which merit prosecution will be taken to court. Where there are gaps in a case file I shall direct that the gaps be filled before a case can be filed.
Besides my Office is developing the minimum standards that must be met before a case is filed.