A vacuum created by the resignation of three commissioners of the Ethics and Anti-Corruption Commission (EACC) in 2015 has returned to haunt the anti-graft body following the collapse of key corruption cases.
Some of the cases lodged in court within the period when former EACC chairman Mumo Matemu, vice-chairperson Ms Irene Keino and commissioner Ms Jane Onsongo left office, crumbled while others pending determination may suffer a similar fate.
The collapse of the cases has been blamed on the Attorney-General (AG), the government’s legal adviser, for failing to appreciate the fact that EACC was dysfunctional in the absence of the three commissioners.
The AG took the position that the commission could carry out investigations despite the void and recommended the prosecution of suspects.
In March 2015, President Uhuru Kenyatta ordered all State officials mentioned in an EACC report he presented to Parliament to step aside to pave the way for investigations on corruption.
But his directive to EACC to forward the case files to the Director of Public Prosecutions (DDP) Keriako Tobiko for action and investigations to be completed within 60 days, was not taken kindly by a three-judge bench which heard the corruption charges against two former Cabinet Secretaries.
Justices George Odunga, Mumbi Ngugi and Joseph Onguto said the President’s order violated the Constitution on account of his failure to respect the independence of the constitutional offices.
The judges said steps taken by the anti-corruption commission, including any investigations, ought to be under the hand of the chairman.
“We agree with the petitioners that any decision purportedly transmitted to the DPP recommending the prosecution without the sanction of the commissioners would not be in compliance with the law,” ruled the judges.
This was after questions arose as to whether the commission was constitutionally constituted to investigate and recommend the prosecution of Cabinet Secretaries Michael Kamau and Charity Ngilu.
While suspending two members of the commission, Ms Onsongo and Ms Keino, the President had indicated that the process would not hinder the work of EACC, saying the anti-graft body was constitutionally established and operational.
Among the cases that have now been dismissed following the commission’s lacuna include that of Mr Kamau, Mrs Ngilu and another involving irregular procurement of wheelbarrows by the Bungoma county government.
The High Court has been emphatic that with the resignation of the commission’s chairman, EACC was not properly constituted in accordance with the Constitution.
Mrs Ngilu, the former Lands Cabinet Secretary, was freed after appellate judges Alnashir Visram, Wanjiru Karanja and Jamila Mohamed declared her trial unconstitutional.
She had been charged with obstructing the commission officials from investigating the 134-acre Karen land scandal. Mrs Ngilu is now Kitui County Governor.
Mr Kamau also had his criminal case permanently quashed in the Court of Appeal by judges Milton Makhandia, Willian Ouko and Kathurima M’Inoti.
He argued that the commission’s secretariat had no authority to recommend any charges in the absence of commissioners since the law provides that the EACC can legally execute its duties if it has at least three commissioners.
Another case awaiting determination involves the widow of former Juja MP George Thuo in which she is accused of irregularly receiving Sh28.5 million from Kenya Pipeline Company.
An official of EACC, who is not authorised to talk to the media, on Saturday confirmed the commission was contemplating filing fresh charges against those let off the hook as the commission was now properly constituted.