Inside DPP Ingonga struggle to prosecute corruption cases

 

When Renson Mulele Ingonga was vetted for the position of Director of Public Prosecutions (DPP) by the National Assembly's Justice and Legal Affairs committee at Parliament buildings, Nairobi on August 31, 2023. [Elvis Ogina, Standard]

In the ongoing battle against corruption, the recent case involving former Government Advertising Agency (GAA) director Dennis Chebitwey and 13 others, who were cleared of allegations concerning the theft of Sh122 million, highlights the complex and often challenging process of sustaining corruption cases.

This case not only underscores the challenges faced by the prosecution but also raises critical questions about the systemic gaps that enable suspects to evade justice.

Director of Public Prosecutions (DPP) Renson Ingonga made headlines when he sought to drop the trial against Chebitwey and his co-accused, including Deputy Governor Ayub Savula and his two wives, citing Section 87 (a) of the Criminal Procedure Code.

The decision followed a High Court ruling that deemed the contract at the centre of the allegations valid, alongside the unfortunate death of a key witness, Jennifer Wambua, a former acting communications director at the National Land Commission (NLC).

State Counsel Wesley Nyamache informed Milimani Chief Magistrate Lucas Onyina that the DPP’s office, along with the Directorate of Criminal Investigations (DCI), had exhausted efforts to find an alternative witness to testify in Wambua’s absence.

The NLC’s chairman confirmed that Wambua had been the sole handler of the matters in question, leaving the prosecution without crucial testimony to support their case.

This incident reflects broader systemic challenges that often hinder the prosecution of corruption cases. Witness tampering, intimidation, and even the untimely death of witnesses can drastically alter the trajectory of a case.

In another significant instance this year, Ingonga attempted to terminate a Sh1.7 billion graft case against former Geothermal Development Company (GDC) managing director Silas Simiyu, as well as a Sh30 million corruption case against former Kenya Pipeline Managing Director Charles Tanui. In these cases, the DPP cited insufficient evidence to sustain the allegations, emphasising a recurring theme: the difficulty in gathering solid proof amid intricate financial dealings.

Senior Principal Prosecution Counsel Duncan Ondimu highlighted that there was uncertainty regarding whether the GDC had conducted an adequate market survey to substantiate the inflated costs alleged against Simiyu. Such gaps in the evidence chain have occasionally led to the DPP seeking the dismissal of significant cases, allowing high-profile suspects to slip through the cracks of the justice system.

In a notable contrast, Ingonga recently chose not to drop charges against Derrick Cornelius Van Houten, the former CEO of Java, indicating a case where the evidence was deemed sufficient. Van Houten is accused of fraudulently obtaining Sh7.9 million from businessman Awil Abdirahman Adulle under false pretences related to a hotel project in Narok County. This decision reflects the DPP’s delicate balancing act between pursuing justice and recognising the limitations of available evidence. It also raises questions about how different cases are evaluated and the criteria used to determine whether sufficient evidence exists.

The recent decisions have drawn public scrutiny and frustration with the justice system. Citizens and advocacy groups are increasingly demanding accountability, calling for reforms to ensure that corruption cases are not only pursued vigorously but are also supported by robust evidence-gathering mechanisms.

An anti-corruption court sitting in Nairobi, led by Chief Magistrate Victor Wakumile, recommended the introduction of an additional office within the Judiciary to verify evidence thresholds before securing convictions in court. The proposed office, to be known as the “Office of the Pre-Trial Judge,” will review police files and scrutinise available evidence before any suspect is arraigned in court.

The intention is to end the abuse of the criminal justice system by police investigators and prosecutors and reduce case backlogs.

He also proposed introduction of a personal prosecutorial and investigative liability policy to protect junior officers in anti-crime state agencies from acting on illegal orders from their bosses.

On separate occasions, High Court Judge Justice Nixon Sifuna and Magistrate Eunice Nyutu also proposed formation of an independent body to oversee the DPP, EACC, and DCI in handling corruption cases, particularly after many high-profile cases were withdrawn for lack of sufficient evidence.

Ingonga’s decisions to drop certain cases while pursuing others demonstrate the complexities of navigating the legal landscape of corruption and criminal cases. The overarching challenge remains: How can the judicial system strengthen its capacity to effectively address corruption without succumbing to the pitfalls of inadequate evidence and systemic weaknesses?

As the DPP’s office navigates these tumultuous waters, the complexity of high-profile corruption cases often becomes a double-edged sword. Allegations against powerful individuals can attract intense scrutiny and lead to public sentiment that questions the motivations behind prosecution decisions.

Ingonga acknowledges the myriad challenges faced by the DPP’s office, including the politicisation of high-profile cases, witness intimidation, and the complexities of financial crimes. He points out that many accused individuals leverage their status to cast doubt on the DPP’s motivations, complicating public perception of justice efforts.

According to the DPP, high-profile corruption cases can sometimes be politicised, with some accused persons alleging they are being targeted due to their political affiliations.

“High-profile accused persons will use their status in society to attempt to paint the DPP’s decision to charge them as being politically motivated and not based on evidence. This leads to negative press against the DPP, even though the decision to charge was made in line with the constitutional mandate and decision to charge guidelines,” Ingonga says.

Compounding the issue, the DPP states that his office often faces delays due to legal maneuvers employed by defence teams.

“High-profile individuals file numerous interlocutory applications intended to delay and derail their prosecution. The determination of these applications takes time and this delays the progress of the criminal cases,” Ingonga noted.

Each request, while a legal right, can serve as a tactic to prolong proceedings and wear down the prosecution’s resolve. The DPP adds that the complexity of these cases demands substantial expertise, time, and resources, which can strain the office.

In the face of mounting criticism regarding the effectiveness of his office, Ingonga emphasises the importance of public awareness and constructive dialogue. He views criticism as an opportunity to clarify the DPP’s mandate and processes, reaffirming the constitutional autonomy that guides his office.

Ingonga highlights that Article 157 of the Constitution grants the DPP the authority to independently direct investigations and prosecute cases. This autonomy, he argues, is crucial for maintaining integrity and objectivity in the face of political pressures and public scrutiny.

The Sunday Standard put some questions to the DPP as he marks his one year in office on Monday.

How do you respond to recent criticism regarding the DPP’s effectiveness in tackling corruption?

The DPP welcomes constructive criticism as an opportunity to enhance public awareness of our mandate and role in justice. Article 157 of the Constitution grants the DPP powers to direct investigations, institute prosecutions, and decide on proceedings based on justice interests. This autonomy is vital for unbiased prosecution, allowing us to make evidence-based decisions without external pressures. The DPP’s decision to charge or not is guided by the constitutional provisions, the National Prosecution Policy, and the Decision to Charge Guidelines. This process involves a two-stage test: the evidential test and the public interest test. Furthermore, once a decision to charge has been made, the DPP retains the ability to review that decision at any time.

Can you highlight some key successes your office has achieved in prosecuting corruption cases in the past year?

My commitment to pursuing justice remains unwavering despite these myriads challenges. My office has successfully utilized plea bargaining to secure efficient convictions in corruption cases. Notable successes include: the conviction of former Samburu Governor Moses Lenolkulal for abuse of office marks a historic first for devolution. Convictions of officials from the National Social Security Fund over Sh1.2 billion at the pension fund, led to significant fines of 2.4 billion and disqualification from public office for 10 years and conviction of Richard Mutule Kilonzo, former CEO of the Export Processing Zones Authority (EPZA), and James Anthony Maingi, the former Finance Manager. Both were found guilty of financial mismanagement and fraudulent dealings involving Sh9.4 million. The court ordered them to pay Sh24.5 million. These victories affirm our dedication to accountability. They demonstrate that no one is above the law.

What specific measures have you implemented to improve the prosecution process for corruption and criminal cases?

We have implemented several measures, including training for prosecution counsel, and focusing on complex cases, including economic crimes and cyber-crimes. We have strengthened case management systems using technology to track and manage cases such as the Uadilifu Case Management System and ensuring criminals cannot retain the proceeds of their crimes by charging suspects with money laundering. 

How does the DPP ensure transparency and accountability within its operations while pursuing corruption cases?

We are committed to operating with full transparency. Regular updates on our activities, the progress of cases, and the outcomes of prosecutions will be provided to keep you informed and to reinforce our accountability.

What challenges does your office face in prosecuting high-profile individuals involved in corruption? How do these hurdles affect case outcomes and justice delivery?

High-profile individuals often attempt to sway public opinion against the DPP’s decisions, labelling them as politically motivated, which can lead to negative press despite evidence-based charges. Corruption cases involving high-profile figures tend to be complex, requiring significant resources to manage voluminous evidence and financial transactions, often resulting in protracted trials. The absence of protective legislation for whistle-blowers poses another hurdle; without an established framework, potential witnesses fear retaliation, making them hesitant to come forward. We appreciate that a bill is currently in Parliament, but until it is enacted, we remain vulnerable. The safety of witnesses is crucial for robust prosecutions, and the lack of mechanisms hampers our ability to secure necessary testimonies.

What strategies have you implemented to address these challenges?

We are investing in training to equip prosecutors with the skills to handle complex cases effectively. The importance of inter-agency cooperation cannot be overstated; effective prosecution requires collaboration with investigative bodies. By enhancing these partnerships, the DPP’s office can ensure that cases are built on solid investigative foundations.

How do you collaborate with other agencies or organizations to strengthen anti-corruption efforts?

We hold regular meetings with investigators to review ongoing cases and address challenges. Pre-trial conferences are conducted to discuss case files and ensure evidence meets legal standards. We organise joint specialised training sessions focused on anti-corruption techniques and collaborate with international organisations, partnering with INTERPOL, UNODC, and the World Bank for expertise and resources.

What role does public awareness play in your strategy to combat corruption? How do you engage with the community?

We organise workshops and seminars, and hold events in communities to discuss anti-corruption initiatives and reporting mechanisms. We collaborate with NGOs to reach wider audiences and leverage existing networks.

What reforms are needed to enhance the legal framework for prosecuting criminal and corruption cases?

We need to strengthen anti-corruption legislation by updating laws to cover emerging forms of corruption. Enacting whistle-blower protection legislation is also essential to safeguard those who report corruption. Furthermore, enhancing collaboration between the ODPP and investigative agencies and investing in training for prosecutors on emerging crimes are vital steps.

How do you measure the impact of the DPP’s work on public trust in government institutions?

We actively participate in community forums and workshops to gauge public sentiment and gather feedback on our initiatives. We track interactions and responses on our social media platforms, such as Facebook and Twitter, to understand public perception and engagement.

What are your priorities in the fight against corruption over the next few years?

We aim to focus on the needs of society in our anti-corruption efforts, ensuring that our approach resonates with the public. We will prioritize the development and implementation of laws that address emerging trends in corruption and close existing legal gaps, and enhance communication with the public regarding our anti-corruption efforts and case outcomes to build trust.

What message do you have for the public regarding the DPP’s commitment to fighting graft?

We are dedicated to pursuing corruption cases with the utmost diligence and integrity. Our goal is to hold accountable those who misuse their positions for personal gain, ensuring that justice is served and public trust is restored. The fight against corruption is far from over, but our commitment to transparency, diligence, and equality will guide us.

I envision a Kenya where citizens can trust their institutions and where the fear of corruption no longer looms large.

Regular updates will keep the public informed of our activities and case progress. We uphold justice and equality, ensuring that everyone is held to the same standards.