When Director of Public Prosecutions (DPP) Noordin Haji hauled 11 suspects to court in a case involving Sh300 million fertiliser alleged to contain mercury, he was breathing fire.
Emboldened by information from investigators from the Directorate of Criminal Investigations (DCI), he went for the most daring charge of attempted murder, a first in the history of public service prosecutions.
And he did not go for mid-level bureaucrats, the usual sacrificial lambs in such high-profile case. He went for Kenya Bureau of Standards (Kebs) boss Charles Ongwae, director of quality control Erick Kiptoo, inspection manager at the Kilindini Port Peter Kinyanjui, health officer Erick Kariuki and Coast regional manager Pole Mwangemi.
Also on the list were Bollore Logistics supervisor Benson Oduor and OCP(K) Ltd directors Malika Karama, Younes Addou and Karim Lofti.
In his opening statement, the DPP assured the public that he had a water tight case.
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But on Thursday, he dropped charges against the OCP(K) directors and Bollore Logistics supervisor.
He first challenged the order for retest, then went after senior lawyer Paul Muite to withdraw from the trial, and when his efforts hit a dead end, Haji struck a deal to drop the charges in exchange that the retest would not be done.
While he was appealing the magistrate’s orders, Haji had said it was impossible to retest the fertiliser because overtime it had changed.
“If you keep fertiliser for quite some time, there would be chemical reaction. Therefore, ordering a retest will not give the same results because chemical composition would have changed, and the court has to take that into consideration,” he said.
He is however still convinced that he can nail Ongwae, Kiptoo, Kinyanjui, Kariuki and Mwangemi, despite penning a deal to release the fertiliser into the market and also handing freedom to those at the heart of the case, the owner of the consignment.
The grand film on whether he will sustain the charges and secure a conviction against the remaining accused will unfold in days to come.
Meanwhile, the untold story on why he eventually caved in to drop the charges is told by documents in our possession showing that the fertiliser was tested five times, and had nothing like mercury as claimed.
In his statement on Thursday, Haji said a long time had passed between when the fertiliser was released and when it was impounded in the Bollore go-downs in Mombasa.
But when he authorised the fertiliser to be released into the market, it only means farmers will either be sold a dangerous commodity or he was not telling the whole story.
“It is agreed between parties and the DPP that the investigating officer shall concurrently release the impounded consignment of fertiliser held in Bollore Warehouse in Mombasa,” the agreement reads.
The expiry date for the fertiliser is November 2020, meaning the chemical components in it can only change after that. The certificate of conformity and the bill of landing indicate that the fertiliser was manufactured in November 2017 and was to expire after three years.
When the 5,500 tonnes of the fertiliser landed in Mombasa on February 2, 2018, Kebs took 50kg for testing. Its laboratory results indicated that sulphur was not detected while nitrogen was 13.2 per cent. There was no mention of mercury by the standard’s body.
Kebs declined to have the fertiliser released into the market on February 9, 2018, and the OCP(K) appealed for a retest.
Limit for mercury
At the same time, OCP(K) wrote to Kebs’ testing appointed agent in Morocco, Bureau Veritas, to retest the fertiliser of mercury. On February 21, 2018, the results read there was 0.05 per cent mercury presence. In Kenya, the limit for mercury is 0.1 per cent.
It also tested of nitrogen (18.64 per cent) and sulphur (6.67 per cent).
Meanwhile, Kebs retested the fertiliser in the presence of OCP(K) officers on February 15 and this time nitrogen percentage rose to 16.07 per cent and sulphur from zero to 6.28 per cent.
It remains a mystery how sulphur was not detected in the first test, but found in the second. Kebs then allowed the fertiliser to be sold.
OCP(K) sold the fertiliser from March 3 to June 19 when a multi-agency team went and sealed off the go-down ran by Bollore after 2,000 tonnes had been sold.
Two days later, on June 21, 2018, Ongwae appeared before National Assembly Trade Committee, led by Kanini Kega (Kieni), to answer to queries on sugar, which allegedly had mercury. It was then that Igembe North MP Maore Maoka rose and said mercury was not in sugar, instead it was in fertiliser.
He claimed that fertiliser had 0.33 per cent of mercury.
The actual percentage from Kebs was 0.032. As to how a zero ended up not featuring in Maore’s report is another puzzle.
On hearing that the fertiliser was alleged to have mercury, OCP Morocco took 86 retained samples of the same and they all tested negative.
Here in Kenya, an independent firm, Kenas, was hired to test the fertiliser again and it detected no mercury, while sulphur was 6.38 per cent and nitrogen was 18.8 per cent.
A certificate of analysis, a crucial document which the shipper has to give the Kenya Revenue Authority (KRA) for the ship to be allowed to dock, indicated that the fertiliser had no mercury, and nitrogen was 19.79 per cent while sulphur was 6.67 per cent.
It has emerged that a multi-agency team took 50kg of the fertiliser from Mombasa for testing in Nairobi. This was two days before the suspects were charged. However, the test required just a handful of the fertiliser. It is not clear what the remainder of the commodity is and why it would not be used for re-testing.
