A clash of egos, pressure from the Executive and conflicting interests are behind the rapidly deteriorating relationship between the Director of Public Prosecutions (DPP) and the head of the Directorate of Criminal Investigations (DCI).
On Monday, the DPP for the second time declined to prosecute a corruption case presented by the DCI, creating an embarrassing standoff in court.
In the latest tiff between the two offices National Water Harvesting and Storage Authority (NWHSA) chief executive Geoffrey Sang was arrested on Friday over allegations of corruption.
The prosecution, however, refused to approve the charge sheets prepared by the DCI and insisted that “files relating to the case should first be taken to DPP Noordin Hajji’s office first”.
Humiliated, the DCI let free Mr Sang who was still at Pangani police station.
Mr Sang was, however, dismissed by NWHSA Tuesday afternoon and replaced with Ms Sharon Obonyo in acting capacity.
“I write to communicate the decision of the board following a special full board meeting today which resolved to revoke the appointment of Geoffrey Sang as the acting CEO with immediate effect,” the authority’s chairman Eric Okeyo said in a circular to staff.
The inability to convict a single big fish despite a widely publicised anti-corruption campaigns and weighed down by dozens of cases still dragging in court has invited mockery of the two offices by Kenyans.
Last month, Mr Haji and DCI boss George Kinoti failed to agree on charging former Kenya Ports Authority (KPA) managing director Daniel Manduku with corruption.
Like in Mr Sang’s case, Mr Manduku was also let free only to be dismissed days later.
Neither the DPP nor the DCI responded to our questions about their relations.
In March, the two dismissed reports of a fallout, saying their working relationship was intact.
“We are open to criticism. If either office criticises the other, there should be no big deal,” Mr Haji said.
Since last week, the DCI locked out the DPP from its offices. The DCI staff were ordered not to share the files of the cases they are working on with Mr Haji’s office “because this slows down investigations”.
The DCI detectives were told to furnish the DPP with duplicate files of their cases and only after a written request.
Legal minds differ on what could be ailing a once a formidable relationship between the two men.
“Is it…a war along a clear lines of political persecution versus lawful prosecution?” Senior Counsel Ahmednassir Abdulahi tweeted.
“That the DPP has sole constitutional monopoly to prosecute is not rocket science. So why this constant circus of the police trying to circumvent the DPP?”
Since the arrest of Treasury Cabinet Secretary Henry Rotich in July last year, the DPP is yet to approve the prosecution of a single large scale corruption case forwarded to his office from the DCI. Mr Rotich has since been replaced by Mr Ukur Yatani.
The last time a big corruption case made it to court was when Nairobi Governor Mike Sonko was arrested in December last year, and it came from the Ethics and Anti-Corruption Commission.
By law, no one can direct Mr Haji on prosecutorial matters. Case files usually bounce between the offices of the DPP and DCI a number of times before it is agreed on what charges should be preferred.
The final charge sheet is, however, prepared by the DCI.
“The DPP shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority,” the Constitution says.
DCI officials say files dating back to April 2019 are still laying at Mr Haji’s office.
Files still in that officer include the corruption investigation at Malindi Constituency Development Fund (CDF) office, Kenya Power bills scandal and the theft of cash at Maasai Mara University.
Sources say things began falling apart in December 2018 when a court was told that a file in a corruption case against former Kenya Power boss Ben Chumo and other officers had disappeared.
Mr Haji was barely nine months into office and Mr Kinoti was almost completing a year as the country’s top investigator.
Their ratings were soaring in the eyes of Kenyans who had not seen an attempt to fight corruption like what they reading in papers and watching on TV. They were even labelled “Men of the Year”.
Prosecutor Alexander Muteti, who is leading the case against Dr Chumo, said an original report on the procurement of faulty transformers by Kenya Power which he was depending on could not be found.
Unknown to many, the mojo in the fight against corruption that Kenyans saw during the first year of the DPP and DCI in office was largely driven by a gentleman’s agreement. Faced with overwhelming pressure that the country was losing the war on corruption, the two offices agreed to arrest and present people in court once they had a prima facie case against them then complete investigations.
“It was initially a good strategy because it struck fear among corrupt public officials and helped to speed up the war on corruption but when the KPLC file disappeared everything changed,” said an official from the DPP’s office.
In the public’s eyes big fish were having their days in court and the tide was being turned in the war on corruption. However in most of these cases, the DPP was presenting people in court and then asking to hold them as investigations got completed.
But when the KPLC files disappeared, the DPP was forced to go back to the drawing board. He started demanding for investigations to be completed and all evidence collected before he makes a decision on whether to file charges against accused persons or not. Officers from the DCI have never been happy with this new reality saying it has slowed down their momentum.