NAIROBI, Kenya, Jun 25 – Former Attorney General Amos Wako and members of the Senate Committee on Legal Affairs and Human Rights have cautioned Director of Public Prosecutions Keriako Tobiko against prosecuting cases on the recommendation of the Ethics and Anti-Corruption Commission as currently constituted.
Wako, Mombasa Senator Hassan Omar and Makueni Senator Mutula Kilonzo Jr say Tobiko is putting his cases at risk should the High Court find that without Commissioners, the EACC cannot recommend prosecution.
They’ve advised that investigations be handed over to the Directorate of Criminal Investigations (DCI) until the court makes its determination on the matter.
But Tobiko is insistent that he will not reverse his position arguing that investigations into the majority of the 175 corruption cases that President Uhuru Kenyatta tabled before Parliament were commenced while the EACC still had commissioners.
“Why is it we can’t use the CIDs? The simple reason is these were investigations that were already in progress and to transfer them would then be conceding to this argument that EACC is unconstitutional, is illegally constituted,” Tobiko said in defence.
And ultimately, he continued to argue, the decision to prosecute lay not with the EACC or the DCI but with him.
“We don’t throw a coin, we don’t say is it the head or the tail? We make decisions to prosecute based on two considerations, the sufficiency of evidence and secondly the public interest. And public interest is not public pressure, it’s not media pressure, and should not be political pressure,” he said.
He did however concede that nothing stopped the DCI from investigating cases of graft.
“Of course the CID have a concurrent mandate. One of the cases they are investigating now is the alleged fraudulent IFMIS transaction in NYS,” Tobiko said.
The High Court is currently seized of the matter after suspended Transport and Infrastructure Cabinet Secretary Engineer Michael Kamau challenged his prosecution on corruption charges on the recommendation of an EACC without commissioners.
But on Thursday, the DPP again insisted that the EACC secretariat is capable of executing its investigative function with or without commissioners. “You don’t investigate by voting and that is what commissioners do.”
Tobiko appeared before the Senators at the committee’s invitation to appraise them on the progress his office has made in prosecuting corruption cases.