Kenya is facing ‘state capture’ of the judiciary, say allies of Kenyatta and Odinga

By Jeff Otieno
Posted on Wednesday, 19 October 2022 15:46

Kenya's Chief Justice Martha Koome addresses members of the Judiciary during a reception after her Swearing-in ceremony, outside the Supreme Court building in Nairobi
Kenya's Chief Justice Martha Koome addresses members of the Judiciary during a reception after her Swearing-in ceremony, outside the Supreme Court building in Nairobi, Kenya May 21, 2021. REUTERS/Monicah Mwangi

The recent termination of mega-corruption cases against powerful and well-connected individuals by the Office of the Director of Public Prosecutions exposed the independent institutions’ lackadaisical attitude in the fight against vice. Was the hand of the executive at play in the whole saga?

On 12 October,  the Director of Public Prosecutions (DPP) Noordin Haji surprised Kenyans by terminating cases against some  high-end corruption and criminal suspects.

Though the law allows the DPP to terminate cases if deemed wise, his action raised major queries after it occurred that most of the freed suspects had strong links to the ruling Kenya Kwanza Alliance, which is led by President William Ruto.

Top on ‘the freedom list’ were cabinet nominees Mithika Linturi and Aisha Jumwa, who have been inside and outside court for various offences ranging from hate speech, violent behaviour, to corruption.

Linturi, the cabinet nominee for the agriculture ministry, was charged in September 2021 with two counts of intentionally attempting to rape a 36-year-old woman at Maiayan Vila Hotel in Nanyuki on 30 January 2021.

The woman had alleged that the then Meru county senator entered her hotel room without her knowledge and attempted to rape her. The case was scheduled to proceed to full trial and if found guilty, Linturi would have faced a jail term of at least five years.

According to the prosecution, the case was withdrawn “after the two parties decided to settle the matter out of court”.

With the rape case out of the way, an elated Linturi said he is now ready to serve, maintaining that the cases were politically instigated.

“I am optimistic that just the same way I was vindicated by the courts, those who suffered at the hand of the previous regime and were punished with court cases will get justice,” said the former senator, who was also a member of Ruto’s Mt Kenya campaign team in the August elections.

Jumwa off the hook

Jumwa, the cabinet nominee for the public service and gender ministry, was let off the hook after the DPP withdrew corruption charges in which the former MP was accused of embezzling KSh19m ($156,830) from the Malindi National Government Constituency Development Fund.

The withdrawal of the court cases is viewed by some as a move to ‘cleanse’ the two former lawmakers ahead of their vetting by parliament.

This is because the cabinet nominees are required to present clearance letters from independent institutions, such as the Ethics and Anti-Corruption Commission (EACC), Kenya Revenue Authority (KRA), the Credit Reference Bureau (CRB)  and the Directorate of Criminal Investigations (DCI). These institutions are empowered by law to deal with various crimes and ensure the public interest is protected.

“As the DPP’s paymaster, Kenyans have a right to be told why the corruption case against Aisha Jumwa has been withdrawn. What happens to the constituents whose funds were misappropriated. We also need to take care of public interests,” says nominated MP John Mbadi, who is also the Orange Democratic Movement (ODM) party chairman.

There are suspects whose cases have been dropped without any explanation.

Lawyer Ambrose Weda concurs that the withdrawal of the cases raises eyebrows coming at a time when President Ruto is in the process of forming his cabinet.

“The withdrawal of Aisha Jumwa’s corruption case is to pave the way for her to be in cabinet, otherwise it would have been difficult to get her appointed,” Weda says.

Leadership and integrity

The  Law Society of Kenya (LSK) is now calling on parliament to reject cabinet nominees with integrity questions regardless of the action taken by the DPP.

“We are calling on the national assembly to rise to the occasion and ensure that they do not kill the provisions of leadership and integrity contained in chapter six of our constitution,” says LSK chairman Eric Theuri.

Ben Chumo, the former director of Kenya Power Company, has also benefitted from the withdrawal of corruption cases. He was charged in 2018 with other officials for failing to comply with procurement laws in the purchase of transformers – which were later found to be faulty – worth KSh400m ($3.3m). At the time of the withdrawal of the case against him, 34 witnesses had already testified with only four left.

“We were labelled criminals, thieves and all service to the public got wasted in a day. I wish [that] no one goes through this again,” Chumo said after the termination of his case.

U-turn

Former Samburu governor Moses Lenolkulal, who was shortlisted for the interviews for principal secretary positions by the Public Service Commission, was also on the list. The DPP said he applied for termination of the case “after reviewing a request by the ex-governor, through his lawyer Nelson Havi, and being satisfied that there was no money lost by the county government [of Samburu]”.

The governor, along with other county officers, were charged with conspiracy to commit an economic crime by receiving KSh84.6m ($699,100) from the county government through Oryx Services Station and engaging in a conflict of interest by trading with the county.

The judiciary has been captured by the state; parliament is in the process of being captured by the state; [the] office of the DPP has already been captured by the state.

However, DPP Haji made a dramatic U-turn ‘clarifying’ that the case will continue after the trial magistrate Thomas Nzioki directed him to personally file a consent letter giving reasons for withdrawing the case.

The latest acquittals came less than a week after the High Court terminated charges against five Kiambu county employees who had been charged alongside former governor Ferdinand Waititu in a KSh588m ($4.8m) graft case. The five were members of the county’s tender evaluation committee.

‘Selective justice’

 The judiciary has also come under scrutiny as analysts accuse some judges of being soft on suspects allied to the new administration, yet going hard on individuals viewed to be allies of former President Uhuru Kenyatta.

Early this month, the High Court reversed the acquittal of Amos Kimunya, the leader of majority in the last parliament, in a KSh60m ($495,254) land fraud case. The court granted the prosecution its request to take Kimunya and his co-accused Lillian Wangiri back to trial. Kimunya and his co-accused are facing five counts of corruption-related offences and had been acquitted in June 2021.

Sirisia MP John Waluke, another Kenyatta ally, is serving a 67-year prison term after the High Court dismissed his appeal. He and his business partner Grace Wakhungu were found guilty of of defrauding the National Cereals and Produce Board (NCPB) KSh313m ($2,583,574). The court maintained that the prosecution proved its case against him.

The imprisonment of Waluke angered a section of Western Kenya MPs who are now accusing the judiciary, the executive and the  DPP of practicing selective justice. They have vowed  “to do everything possible to secure the MP’s release”.

“There are suspects whose cases have been dropped without any explanation. Why is Waluke’s case being pushed? Is he a son of a lesser God,” says Bumula MP Jack Wamboka of the Democratic Action Party-Kenya and also a member of the Azimio Coalition party.

State capture

Lawyer Dunstan Omari is also worried that the judiciary might fall into the ‘state capture trap’ if judges are not careful.

“It is worrying that the DPP is now withdrawing cases and the judiciary failing to compel him to give reasons for the acquittals,” says Omari.

Embakasi East MP Babu Owino says the issue of independence of institutions no longer exists.

“The judiciary has been captured by the state, parliament is in the process of being captured by the state, office of the DPP has already been captured by the state. It is a dangerous situation for the people of Kenya,” Owino says.

However, legislators allied to President Ruto maintain that the judiciary and the office of the DPP are acting independently as per the dictates of the constitution.

“The DPP realised that most of these cases do not hold water and as a prosecuting officer he needs water-tight cases. The DPP knows that if he proceeds with the cases they will collapse,” says Nandi County Senator Samson Cherargei.

Tana River Senator Danson Mungatana, who shares similar sentiments, says: “It is unfortunate that the police force was being used for political purposes. The then DCI [George Kinoti] decided to become a movie star, always assembling the TV cameras just to execute arrests yet he knew the cases in question could not stand in the courts.”

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