Civil society groups accuse ODPP of political capture in Arror and Kimwarer dams scandal

A section of civil society groups have accused the Office of the Director of Public Prosecutions (ODPP) of being used to bungle the case of the Arror and Kimwarer Dam Scandal.

Their sentiments come barely a week after former Treasury Cabinet Secretary (CS) Henry Rotich and eight others were acquitted of fraud-related charges that cost the country Ksh.63 billion.

In their Wednesday statement, the Kenya Human Rights Commission (KHCR) and Transparency International Kenya, accused the ODPP of what they termed as being politically captured and being part of a conspiracy to defeat justice.

"From the onset, the courts observed that the prosecution's approach was designed for failure characterised by a reckless dereliction of duty. The collapse of the Arror and Kimwarer case confirms the ODPP is politically captured and part of a conspiracy to defeat justice," said KHCR Executive Director Davis Malombe.

In her decision, trial magistrate Eunice Nyutu said no evidence had been adduced to prove the accused persons flouted procurement laws and defrauded the public. Her determination of the case was however laced with vitriol directed at the prosecution which she said bungled the case.

"I find that there is a need to check the unfortunate and reckless habit of the ODPP commencing proceedings which they have no intention of pursuing to its logical conclusion …  this appears to be a carefully choreographed prosecution-led acquittal," said Nyutu in her ruling then.

The Civil Society groups have demanded that the DPP, within a two weeks ultimatum,  seizes the Arror and Kimwarer Case and ensure that the real culprits are brought to court and charged accordingly, insisting that if Rotich and the other eight are the real suspects then they must face the law again.

"They said that they were aided by the decision to charge guidelines and they were very clear that whatever case they had presented had met the evidentiary threshold, we don’t know what happened between 2018 when this matter first came up and last year when we started seeing several suspicious movements within this case," said Transparency International Executive Director Sheila Masinde.

The prosecution handling the case initially called 49 witnesses but only led evidence from 8 witnesses claiming they had no questions for the other 41 witnesses. 

Later, the prosecution again changed its tune stating that it was no longer interested in prosecuting the case.

The Civil Society groups also want the ODPP to hold the officers who led to the wrongful identification of the 41 witnesses to account".

"If the DPP does not do this we will take the requisite legal measures including taking legal action against the relevant officers in the ODPP who acted outside the principles of the constitution and the law in handling the case and in so doing have led to the loss of public resources including financial and human resources spent on investigation, prosecution and adjudication of the matter," said Masinde.

"The trial faced continuous frustration, prompting both magistrate Eunice Nyutu and High Court Judge Nixon Sifuna to openly call out prosecutors in charge of the case, Geoffrey Obori and Oliver Mureithi. The management of this case exemplified what can be termed as “prosecution-assisted acquittals,” Malombe added.

The civil society groups also want former CS Rotich and his eight co-accused to be barred from any public office appointments.

"Their acquittal is suspect and requires a comprehensive independent investigation to examine the circumstances surrounding the collapse of the case thoroughly," said Masinde.

The Human Rights bodies have further accused the ODPP of what they describe as a casual handling high-profile criminal cases and deliberately entertaining a culture of poor prosecution to absolve suspects with political connections.