When Court of Appeal judges sat to pen a decision whether former Central Bank of Kenya Governor Njuguna Ndung’u should be charged with graft, they did not unanimously agree.
Two of them, Erastus Githinji and Jamilla Mohamed, decided that Prof Ndung’u could not be held responsible for a Sh1.2 billion controversial security tender awarded to Horsebridge Network Systems.
By the majority judges’ order delivered on December 20, 2018, Ndung’u was cleared from graft charges after three years in court.
However, Justice Hannah Okwengu disagreed with her colleagues, saying that the governor’s special position in the bank made him fit to be a “whipping boy” for anything untoward that happened.
“As the chief executive of the bank, the appellant was in a special position. He was not in an equal position with other officers of the bank as he is the “whipping boy” who must take responsibility for the bank’s actions including actions, relating to the procurement process for the bank,” decreed Justice Okwengu in her minority decision.
But Justices Githinji and Mohamed felt the charges pressed by the Ethics and Anti-Corruption Commission (EACC) were unjustified.
They first faulted the Director of Public Prosecutions (DPP) for passing the charges, which they said were unrealistic and had a slim chance, if not none, of pinning Ndung’u down.
“I am satisfied that the charges had no legal or factual foundation and thus there was no realistic prospect of conviction,” said Githinji.
Okwengu, however, said the DPP was right in charging Ndung’u as there was a complaint which had been raised regarding the lucrative tender.
According to the judge, the tender was marred by intrigues which the governor ought to have shouldered the blame for.
“While the complaints may have originated from disgruntled bidders, the investigations undertaken by EACC and the decision by the DPP to prosecute the appellant were undertaken pursuant to powers underpinned by the Constitution, and not motivated by any malice,” said Okwengu.
The judge added that the former governor ought not to shift blame to both the opening and tendering committees
But Githinji and Mohamed said it was discriminatory to charge Ndung’u and eave out everyone else who participated in the tender process.
They found that the former governor had a legitimate expectation that DPP would consider that the procurement process was a chain of actions before deciding whether to charge him or not.
The majority judges faulted the High Court, saying it ought to have considered the evidence before it and the arguments presented in order to decide whether the defendant had been properly charged or not.
Letters written by Ndung’u and filed in the case reveal that after he went through the decision by the review board, he decided that it would harm CBK’s name by dragging it in courts. He stated in his letters that the name of the regulator had to be protected.
The letters caught the favourable eye of Githinji and Mohamed who found that he acted rationally and in CBK’s best interest.