Too big to jail? Why EACC struggles to get multi-billion cases to trial

More than two-thirds of corruption cases forwarded to authorities for prosecution fail to proceed, despite the government regularly highlighting its commitment to fight graft.

The latest report from the Ethics and Anti-Corruption Commission (EACC) indicates that out of 52 cases forwarded to the Office of the Director of Public Prosecutions (ODPP) between July and September 2019, only one has been brought before the courts.

The quarterly report highlights dozens of cases where national and county government officials used their positions to award themselves tenders, assets, obtain kickbacks and embezzle billions of taxpayers’ monies.

 Public coffers

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The 52 cases investigated in three months last year involved graft reports amounting to almost Sh4 billion stolen from public coffers in addition to an unspecified value in assets.

The cases have also highlighted the murky waters that State authorities at various departments navigate in receiving corruption tips and investigating corruption cases.

The controversial Lake Basin Development Authority (LBDA) Mall in Kisumu is the biggest case that the EACC forwarded to the DPP in September last year.

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The anti-graft agency found that the LBDA board inflated the project by as much as Sh2.5 billion and violated procurement laws.

“There was no prior approved budget, unresponsive bids were evaluated and awarded contracts and there was a variation of the project without requisite approvals, along with other breaches,” stated the EACC in its report in part.

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Several counties, including Homa Bay, Kiambu and Nairobi, stood out for the number and value of cases reported to the anti-graft commission, with governors implicated in some of the cases.

Kiambu Governor Ferdinard Waititu remains suspended following investigations into claims that he got Sh52 million in kickbacks on a Sh588 million tender awarded to Testimony Enterprises to upgrade roads in the county.

According to EACC, no budgeting was carried out and the company was not qualified to handle the project.

Despite this, however, Mr Waititu is said to have directed Sh221 million be released to the contractor.

The EACC recommended prosecution in 41 cases, out of which the ODPP agreed to prosecute 19.

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About 13 files were returned to the anti-corruption agency for further investigations, while 11 are awaiting advice from the DPP.

According to the report, most of the cases involved abuse of power, where public officials use shell companies and proxies to obtain State tenders or embezzle funds.

In another case, employees at the Mathari National Teaching and Referral Hospital were accused of soliciting for Sh5,000 in bribes from firearm holders seeking psychological evaluation reports.  

According to the report, Homa Bay County stood out in the high number of corruption cases recorded in the period under review.

In one case, Homa Bay County employees are accused of using proxies and briefcase companies to steal Sh99 million.

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“Investigations revealed that some companies were registered under Homa Bay County officials while others were registered using proxies, and either traded with the county or received money for no services offered,” states the EACC in part.

Another charge accuses the county employees of pocketing Sh217 million fraudulently through a similar scheme.

The officials are due to be charged with conflict of interest, abuse of office and unlawful acquisition of public property, among other offences. 

The World Bank-funded Sh700 million Ngong Market has also faced allegations of inflated costs and a fraudulent tendering process.

Contractors are accused of forging documents and colluding with officials in the Ministry of Transport, Infrastructure, Urban Development and Public Works to win the multi-million-shilling tender.

“Investigations established that there was an irregular award of the tender for the construction of Ngong Market, Kajiado County to China Tiancheng Engineering East Africa Ltd,” explained EACC in part.

“The said firm submitted documents filled in pencil contrary to the requirements set out in the bid documents.”

Some cases have brought out the tricky challenge of investigating anonymous reports on corruption allegations.

These include a case where an anonymous person reported to EACC that an unnamed official of the Kenya Civil Aviation Authority (KCAA) demanded an unspecified amount in bribes from bidders in a tender for providing cleaning and environmental services that had been reserved for women.

Successful bidders

EACC said according to its investigations, “none of the successful bidders was requested for a bribe” by any member of the KCAA evaluation team.

Although the EACC recommended that the inquiry be closed, the DPP has ordered further investigations be carried out. In some cases involving police and county officials reported to have taken bribes, the EACC closed the files after the suspected perpetrators escaped a sting operation.

A corruption survey released by the EACC last year revealed that the Kenya Police tops the list of the most corrupt public institutions.

In November last year, motorists on the Kisumu-Busia highway were treated to a rare spectacle when traffic police officers shot at EACC officials in an attempt to evade arrest.  

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EACCCorruptionDPPLake Basin Development AuthorityLBDA