EACC and DPP Clash Over Withdrawal of Sh292 Million Graft Case: A Comprehensive Analysis

The Ethics and Anti-Corruption Commission (EACC) has once again found itself at odds with the Director of Public Prosecutions (DPP). The clash revolves around the recent withdrawal of a high-profile Sh292 million corruption case involving the Chief Executive Officer (CEO) of Tanathi Water Works Development Agency, Fredrick Mwamati, and his Executive Management Team. The case, which was being heard before the Kitui Anti-Corruption Court, has sparked a heated debate about the efficacy of the criminal justice system in dealing with graft and procurement scandals.

This article delves into the intricacies of the case, the legal rationale behind the withdrawal, and the broader implications for anti-corruption efforts in Kenya.

Overview of the Case

The Sh292 million case against Fredrick Mwamati and his team centers on allegations of procurement malpractice concerning the award of a tender for the construction of the Kinanie Leather Industrial Park Water Supply Project (Phase II & III). The project, valued at Sh292 million, aimed to enhance water supply infrastructure to the burgeoning leather industrial hub. However, the EACC initiated investigations into the procurement process, suspecting irregularities and illegalities, including allegations of kickbacks paid to senior officials.

In June 2024, the DPP approved the prosecution of Mwamati and his senior officers after reviewing the findings of the EACC. The move was made public through a press release issued by the DPP on June 29, 2024, directing the immediate arrest and arraignment of the accused persons. The case seemed poised to deliver a significant blow against corruption in Kenya’s public sector.

However, the case took an unexpected turn on October 2, 2024, when the DPP applied to withdraw the charges, citing insufficient evidence. The DPP’s application was strongly opposed by the EACC, which argued that the withdrawal was not only premature but also a gross disregard of public interest.

Legal Grounds for the Withdrawal

In his submission to the Kitui Anti-Corruption Court, the DPP defended the decision to withdraw the case on the basis of an evidentiary review. After granting consent for the prosecution of Mwamati and his team, the DPP received a request from the accused individuals to review the evidence. According to the DPP, this review revealed that the available evidence was insufficient to sustain a prosecution. Specifically, the DPP argued that:

• The contractor was still actively engaged in completing the project, with 91% of the work already done.
• No payments had been made under the contract, thereby ruling out any financial loss to the public.
• The evidentiary test indicated that there were no grounds to continue with the prosecution, as the irregularities alleged by the EACC had not resulted in any tangible loss to the taxpayer.

Based on this reasoning, the DPP concluded that continuing with the case would not serve the interest of justice. The court, in a ruling delivered by Chief Magistrate David Mburu, concurred with the DPP’s submission, stating that the withdrawal of the case was justified.

EACC’s Opposition and Claims of Corruption

The EACC vehemently opposed the DPP’s move, terming it an abuse of court process and a betrayal of public trust. According to the EACC’s affidavit filed in court, the DPP’s decision to abandon the prosecution was made in bad faith and without any new evidence exonerating the suspects.

The EACC maintained that the initial evidence, which had been reviewed and approved by the DPP in June 2024, was still valid and sufficient to warrant prosecution. The commission argued that the procurement process was marred by serious irregularities and that senior officials had received substantial kickbacks in the awarding of the contract. These claims, the EACC asserted, were backed by cogent evidence, including documents and witness testimonies.

Furthermore, the EACC criticized the DPP’s reliance on the progress of the project and the lack of financial loss as reasons to drop the case. The commission argued that corruption and procurement malpractice are not solely defined by financial loss but also by the violation of legal procedures and the undermining of public confidence in government institutions.

The EACC’s opposition to the withdrawal reflects a deeper tension between investigative bodies and prosecutorial authorities in Kenya, particularly when it comes to high-stakes corruption cases.

The Court’s Ruling

In his ruling, Chief Magistrate David Mburu sided with the DPP, stating that the withdrawal of the case was justified based on the evidence presented. Magistrate Mburu noted that while the court could not make any conclusive findings on matters of fact at this stage, the DPP had presented sufficient justification for discontinuing the prosecution.

The court acknowledged that the DPP’s decision was based on an evidentiary review and that the contractor’s ongoing work, coupled with the lack of financial loss, weighed heavily in favor of abandoning the case. Magistrate Mburu emphasized that the court could not intervene in the DPP’s decision-making process unless there was clear evidence of abuse of power or gross misconduct.

“In my considered view, the DPP has properly exercised his powers with due regard to the public interest, the interest of the administration of justice, and the need to prevent and avoid abuse of the legal process,” Mburu said in his ruling.

With this decision, the accused individuals, including Fredrick Mwamati, were set free, marking the end of a case that had once promised to be a landmark prosecution in Kenya’s anti-corruption drive.

Implications for Anti-Corruption Efforts in Kenya

The withdrawal of the Sh292 million case against the Tanathi Water Works Development Agency CEO and his team is likely to have far-reaching implications for Kenya’s anti-corruption efforts. The EACC’s frustrations with the DPP echo broader concerns about the effectiveness of the country’s criminal justice system in dealing with high-profile corruption cases.

For years, Kenya has struggled with corruption scandals involving billions of shillings in public funds. While investigative bodies like the EACC have been instrumental in exposing graft, the success of these efforts ultimately depends on the cooperation of the DPP and the courts. The clash between the EACC and the DPP in this case raises questions about the level of coordination and trust between these two key institutions.

Critics of the DPP’s decision argue that the withdrawal of high-profile corruption cases undermines public confidence in the justice system. They contend that the evidentiary review process, while necessary, should not be used as a tool to shield public officials from accountability, particularly in cases involving allegations of procurement irregularities.

On the other hand, the DPP’s supporters argue that prosecuting cases without sufficient evidence only serves to clog the judicial system and waste public resources. In their view, the decision to withdraw the case was based on a careful assessment of the evidence and a recognition that continuing with the prosecution would not be in the interest of justice.

Conclusion

The clash between the EACC and the DPP over the withdrawal of the Sh292 million case against the Tanathi Water Works Development Agency CEO has once again brought to the fore the challenges of fighting corruption in Kenya. While the DPP’s decision to drop the case was upheld by the court, the EACC’s concerns about procurement malpractice and kickbacks highlight the complexities of proving corruption in a court of law.

As Kenya continues to grapple with corruption, the need for greater coordination between investigative and prosecutorial bodies becomes increasingly evident. The public will be closely watching how future cases unfold, hoping for a more united front in the fight against graft and the safeguarding of public resources.