NEWS GANG: Law or moral cowardice

And in the most objective terms, legal or otherwise, there can not be a better summing up of the circus that the arror kimwarer case has been.

The collapse of the Arror Kimwarrer corruption case and the aquittal of all suspects indeed signs off a scrappy year for Kenya's hot and cold, and even feeble war on official corruption. The Arror Kimwarrer corruption case which had began with the promise of fire and brimstone has ended in a whimper and is on course to enter history books as the grandest prosecutorial disaster in kenya. 

From numbers to optics, the collapse of the Arror Kimwarer case becomes another signature catastrophe for public accountability and the so called war on official corruption.  All 9 suspects including  former Treasury CS Henry Rotich were set free in what the court described as a well choreographed acquittal. The court observed that on aggregate, the prosecution failed to prosecute its own case.

The magistrate in her stinging judgment said “all the accused persons in this case are hereby acquitted under section 210 due to lack of evidence as a result of the reckless dereliction of duty by the prosecution”  she didn’t stop there, in fact she further called out the prosecution for what she termed “a carefuly choreographed acquittal”.

The court outlined how the prosecution plotted its own downfall. Out of a total of 41 witnesses, the prosecution only called up and led 8 witnesses through their testimony.

In her judgment Magistrate Eunice Nyutu found that the prosecution failed to table evidence that there was no procurement done for the construction of the two dams. She also faulted the prosecution for failing to show that the 9 accused failed to follow procurement laws. 

Folks, the court went further. It has called for the need to check the conduct of the office of the director of public prosecutions  for seemingly commencing cases that it apparently has no intention to pursue to conclusion.

The magistrate's observations have been consistent; in September, she declined to adjourn the case by people she called “faceless officers” seeking an adjournment leading to what she called the waste of precious judicial time.

At the time she directed the prosecutor to continue with the case, and even after being compelled to do so by the court, the prosecutor did not pose any questions to the 4 witnesses who has in fact been brought to court under a warrant of arrest.

Over 10 witnesses were discharged that month without giving testimony in court. In  fact even former Agriculture CS Peter Munya did not testify as the prosecution had no questions for him. The reason? The prosecutors were waiting for the new DPP to be sworn in and give fresh instructions. 

The twists and turns of this case just kept coming. In a rather odd application  in the same month, the DPP asked the magistrate to recuse herself from the case. She declined outright.

With several such peculiar development in the trial, it comes as no suprise that the magistrate declared that her ruling shall be placed before the Attorney General and the National Council of Administrative Justice with a view of sparking a conversation on legal reforms on this issue.

A judicial review of the Arror Kimwarrer case in totality would be a much welcome prospect. And what if that review also touches on the ODPP's handling of previous similar high-level cases.

In November last year for instance, the Director of Public Prosecutions withdrew charges against the deputy president after the investigating authorities claimed that they were still conducting investigations. 

And in findings that mirrored today's ruling in the Arror case,  Senior Principal Magistrate Victor Wakumile again called out the prosecutor's office, saying, “These proceedings are testament that the DPP acted contrary to article 157 in its entirety.

Plea taking is not a simple event, it leads to denial of liberty, public ridicule, stress which may lead to unnecessary loss of lives.”  once again the issue of “political pressure” was inferred. The investigator said that he was working under intense pressure. 

The same pressure that supposedly led the DPP to withdraw 8 high profile corruption cases all involving highly connected political individuals, in a span of 8 months.  Folks,  the fight against official corruption is officially on the back foot and the weak link is no longer a subject of guessing games. You know it, I know it and everybody knows where the weak link lies tonight.

Indeed, if as the courts have said the ODPP seemingly starts cases that it has no intention of pursuing to the very end. If as the courts say, these are well-choreographed acquittals where does this leave us? Folks, the amount of money lost in these cases is mind-boggling. Ksh.7.3 billion in the case against the deputy president, Ksh.11. 3 billion in the 8 cases that were withdrawn a year ago and Ksh.63 billion in the Arror Kimwarer dams case. 

Now if we were to take a moment to ask small simple questions... What do all these acquittals and withdrawals mean? Does it mean that there was no money lost? Does it mean that there was no flouting of laws, no breach of trust of public office holders?

What happens to the billions of shillings lost and the people of Kenya that lose out on basic services as a result of projects and resultant services not provided? What happens to the taxpayers who faithfully pay their rather high taxes that are then misappropriated? 

Let us face it fellow Kenyans...  In the so-called fight against official corruption, we are living a cruel lie.  Power, profile and wealth is still the ultimate decider on whether an offence of corruption is actually an offence.

The Arror Kimwarer case marks the final surrender document for the Office of Directorate of Public Prosecutions, which as we have pointed out here before, has been on the run for some time now.

For a country that just turned 60, it should be sad to watch an independent institution walking away from its mandate. It should also be worth a troubled night for the country that the criminal justice system looks decisively lopsided complete with categories of crimes that can be prosecuted like theft of chicken and crimes that cannot be prosecuted like multi-billion corruption cases.   

Yvonne: a night of reflection, this begs. But  hey,  kenya has a beautiful, robust and progressive constitution.  And good constitutions can fix many things especially  of a legal and administrative kind. But we know not, of a constitution that can cure moral cowardice .