MPs accuse anti-graft body, DPP of collusion in Kemsa scandal probe

Principal Secretary, State Department for Medical Services Harry Kimtai when he appeared before the National Assembly's Health committee at the Bunge Towers. [Elvis Ogina, Standard]

The back and forth transmission of files between the Ethics and Anti-corruption Commission (EACC) and the Director of Public Prosecutions (DPP) has been blamed for the delayed prosecution of suspects in the Kenya Medical Supplies Authority (Kemsa) scandal related to procurement of Covid-19 supplies.

This emerged yesterday even as the Medical Services Principal Secretary Harry Kimtai was fined Sh500,000 by a parliamentary committee for providing unsatisfactory answers on the status of the Kemsa scandal probe by the ministry.

The National Assembly Committee on Implementation has now accused the anti-graft agency and the DPP of colluding to frustrate the probe into the Covid-19 millionaires, by employing delay tactics.

The committee heard that three years after the Sh7.8 billion Kemsa scandal broke out, the EACC and DPP offices are yet to make arrests and act on the recommendations of a special audit on utilisation of Covid-19 funds by Kemsa.

It emerged that soon after the EACC completed investigation into the heist in 2020, it forwarded the report file to DPP within three months, but since then, the DPP has returned the file to EACC on several occasions- each time urging the anti-graft agency to cover additional areas.

According to documents tabled before the committee, after the EACC made its submissions in 2020, the DPP on September 13, 2021 (close to a year after the heist) returned the inquiry file with further directions.

EACC then resubmitted the file to DPP on October 24, 2022 -a year after receipt- upon covering issues raised. The DPP would also later return the inquiry file to EACC on January 26, 2022 with further directions for investigations.

And upon covering all the areas of investigation, the file was resubmitted to the DPP on November 3, 2023.

Interestingly, the report by EACC had recommended charges against 29 persons including public officials, directors, companies and associates/ agents with the offences of conspiracy to commit an economic crime, willful failure to comply with law and applicable procedures and guidelines relating to procurement, abuse of office, unlawful acquisition of public property, giving and receiving of bribes and neglect of duty among others.

It further recommended charges against eight companies identified to have allegedly engaged in irregular procurement of medical supplies at KEMSA. They include Kilig limited, Shop ‘N’ Buy limited, Accenture Kenya Ltd (now Meldian Enterprise Ltd), Angelica Medical Supplies Limited and Wallabis ventures limited.

Others are  Meraky Healthcare limited, Gladiab supplies limited and Steplabs Technical Services limited.

Further, key findings of the investigation by EACC revealed that as at August 2020, Kemsa had paid a total Sh4,931,525,241 to 61 entities while Sh2.9 billion was yet to be paid to other suppliers.

It also established that the Covid-19 supplies to Kemsa were overpriced. EACC found that Kemsa used irregular procurement processes, and irregular approvals obtained contrary to law and that there was no budgetary provision and procurement plan for Covid-19 supplies in FY 2019/2020.

“The investigation established criminal culpability on the part of public officials in the purchase and supply of Covid-19 emergency commodities at Kemsa that led to irregular expenditure of public funds,” read the report in part.

The Budalangi MP Raphael Wanjala-led committee now reads the back and forth between the EACC and DPP as malice with intent to crumble the case.

“Isn’t this a conspiracy between the DPP and EACC to frustrate the fight against corruption? How do you explain file resubmission taking 1 year?” Posed Wanjala.

Igembe North MP Julius Taitumu said: “It seems there is a deliberate process to sabotage this probe. After the recommendations by EACC, what other directions is the DPP giving?...It is now clear that this is a scheme to ensure the investigations fail.”

Marakwet West MP Timothy Toroitich sought to know the exact investigations areas that the DPP sought EACC to expound on.

“Are you admitting that the DPP is frustrating the investigations process? Are you admitting that DPP is aiding corruption?” Posed Toroitich.

In his defense, EACC CEO Twalib Mbarak said that need for meticulousness in evidence gathering had delayed the process.

“There was nothing like collusion with the DPP or fear of those senior in government. There are a lot of technicalities in such high impact cases and if not well addressed we could lose the case in court,” said Mbarak.

He further lamented that EACC was understaffed yet it handles approximately 5,000 cases in a year with only 70 investigators.

“Most of the goods came from China. We had written to the Chinese to assist us with mutual legal assistance in a bid to ensure that the evidence we collected was not deemed as obtained illegally in court. When a case crosses the jurisdiction of Kenya you are delayed,” he said.

The committee has also summoned the DPP to appear before it in two weeks’ time to shed light on the delay.

The committee heard that State Department of Medical Services was supposed to lead the formation of a multi-agency task force to investigate the heist at Kemsa in 2020  but to date this has not been done.

“When I was taking over as PS, I did not receive any letter or report from my colleagues stating the recommendations of the special audit. But after being briefed by the clerk of the National Assembly, I have requested the taskforce to be formed,” said Kimtai.

The PS sought two weeks to form the taskforce, carry out the probe and table a report.

Terming his response, a joke to the committee, Wanjala ruled that Kimutai be fined Sh500,000 and present a detailed report with two weeks.