“We had 124 cases and that is what we are investigating. The first challenge was the volume of work, there was a lot of public expectations which sometimes can be unrealistic,” he explains/CFM NEWS
EACC Deputy Secretary/Chief Executive Officer – Operations Michael Mubea told Capital FM News that all suspects named will know their fate soon.
“Anxiety is not the best of a place to be but we have to follow the process of investigations. We are hopeful that all the affected persons will know their positions in not so a distant future. I would urge they keep their cool; we are doing our best,” he assured.
Though there seems to be headway in tightening the grip on corruption, the process of investigating and prosecuting the high profile individuals has not been painless.
The Office of the Director of Public Prosecutions (ODPP) and EACC complain that investigating and prosecuting the corruption cases was frustrated by a myriad of impediments.
President Uhuru Kenyatta on March 26, 2015 handed over the list of 124 files containing high profile names to be investigated over corruption allegations.
Cabinet Secretaries, Permanent Secretaries, Governors and other top government officials were not spared from the list that caused tumult among the influential individuals but was applauded by the Kenyan public and the international community.
President Kenyatta had directed EACC to investigate and forward the files to the DPP within 60 days.
READ: 5 Cabinet Secretaries, 12 Governors in EACC graft list
Four months later, most of the files are still being dealt with, and suspects implicated are yet to know their fate.
One of the suspects told Capital FM News that it was agonising to wait for a decision for so long.
“It’s been many months now, EACC has not yet forwarded my file to the DPP. I thought a decision would be made soon but no, I keep on hoping to see the recommendations made, I don’t know up to when,” the high profile individual said.
By September 2, 2015, the EACC had completed investigations into 59 files which it had forwarded to the ODPP.
The Director of Public Prosecutions acted on 58 files, of which there was recommendation for prosecution in 32 files in which 147 individuals were named.
The DPP agreed with EACC’s recommendation to close 13 of the files.
Kenya’s effort to fight corruption is evidently frail and the ‘big man’ syndrome that powerful individuals are beyond reproach has also come into play since the list was handed over for investigations.
Members of the public were treated to dramatic events as leaders claimed their innocence while others moved to court to block proceedings against them.
Some of them appeared before the EACC and in court, while others rallied their tribesmen and political die-hards to declare them innocent.
“It has been noted with a lot of concern that a number of those summoned have adopted a culture of coming to our headquarters at Integrity Centre while accompanied by huge crowds of people, presumably to demonstrate support and solidarity with them,” EACC complained in a statement on May 4.
Mubea admits it was the first time that the commission received such a huge chunk of cases at the same time.
“We had 124 cases and that is what we are investigating. The first challenge was the volume of work, there was a lot of public expectations which sometimes can be unrealistic,” he explains.
Investigators, prosecutors and lawyers were over stretched, yet public expectations were high and unmanageable.
“The man hours we had to spend on those investigations and of course the low numbers of investigators and lawyers within the commission… we were working from Monday to Sunday, there was no break at all,” Mubea said.
The commission was also concerned that the corruption cases had been politicised.
Emily Kamau, Head of Corruption and Economic Crimes in the Office of the DPP said the corruption cases are complex because they touch on top office bearers.
This, she says, makes it difficult to dig up for evidentiary documents or even record statements from witnesses who are usually juniors or colleagues of the individuals under investigation.
“So they are sympathetic to them and they would want to help them get away with it. Some of them again, could even be compromised.”
Unfortunately, for the prosecution, the standard of proof anchored on solid evidence is critical if it is to win a case in court.
It does not rely on just any documents making allegations but documents that undergo forensic investigation including verification of claims made.
“The DPP works on the files submitted by the EACC. We are supposed to take a case to court when we are completely ready to prosecute. Corruption is not just naming, we must get reasonable and sufficient evidence,” Kamau explained.
It’s also been an obstacle to put faces behind documented evidence to back claims made especially when the cases move to the court level and witnesses are required.
Witnesses who initially record statements refuse to testify or recant their evidence forcing the prosecution to seek warrants of arrest.
“When witnesses are summoned by EACC to record statements they record very good statements, that time they are very cooperative because they are fearing that they will also be charged, but when you call them to court some of them become hostile, they recant their statements,” Kamau said.
The wheels of justice are caught between a rock and a hard place. The constitution demands that rights of the suspects are respected always.
For example, all cases involving high ranking individuals have been followed by numerous court petitions and preliminary objections.
“Immediately you charge the suspect the next thing that will follow will be a constitutional petition or a judicial review challenging the decision of the DPP or the legality of EACC or the manner in which the person was charged,” Kamau explained.
Even with the court petitions, Mubea said the commission had not halted its investigations into the 124 files. “There is nothing that stops the commission from undertaking its mandate, there are quite a number of petitions filed on that ground but we are challenging them in court.”
According to Kamau, the numerous court petitions are meant to derail the cases which also cause witnesses to pull out.
“They delay us, they fatigue the prosecutor – instead of concentrating on the prosecution now you are spending your energy defending the applications. One of the reasons that witnesses turn hostile is that some of them get frustrated. They come to testify then the case is put off, they are recalled, and then it is put off again,” she explains.
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