The extent to which the independence and capacity of Kenya’s anti-graft agency to do its job has been eroded is now clear after it emerged that it may take it nearly 50 years to clear the backlog of cases in its docket at its current pace.
Without the commissioners who provided a wall between it and the political establishment, the agency has been left exposed to the Executive arm of government and vulnerable to attacks by Parliament and lawsuits.
Yesterday, the Director of Public Prosecutions (DPP) Keriako Tobiko laid bare the reasons why he was unable to prosecute three Cabinet ministers and a governor and the blame can only be laid on the door of the Ethics and Anti-Corruption Commission (EACC), which literally expected the DPP to breathe life into dead cats.
This year, EACC has been allocated Sh2.3 billion, which will raise the total allocation to the institution in nearly five years to Sh8 billion. However, between 2011 and this year, the institution has only recorded three convictions-none involving the so-called big fish-with most of their files returned due to under- investigation and lack of sufficient evidence.
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Established in August 2011, following the disbandment of the Kenya Anti-Corruption Commission, EACC’s fight against high-profile corruption is unconvincing, going by its own records and public perception reflected in recent opinion polls.
Things have not been helped by the fact that it relies heavily on the Directorate of Criminal Investigations (DCI), the investigative arm of the National Police Service.
An analysis of annual reports of the anti-graft agency shows three convictions and recovery of assets worth Sh2 billion over the years. This is not such a big achievement considering corruption, as reported in 2012 by then Treasury Permanent Secretary Joseph Kinyua (now President Uhuru Kenyatta’s Chief of Staff), contributes to the loss of at least one-third of the annual budget.
That agencies tasked with fighting corruption aren’t confident about their performance is evidenced going by the fact that despite six months of seeking information on successful prosecutions from the EACC and the Judiciary, The Standard ran into brick walls.
Reporters were tossed from one office to another. The experience began early this year, when the communications office at the Judiciary sent us to the EACC. We wrote 14 letters and a couple of emails, but received no reply.
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Calls to numerous officers at the commission weren’t fruitful. Then one day, the former EACC Chairman Mumo Matemu answered our call.
“You can get that information from our people at communications. Talk to Yassin (Amaro),” he said referring to the EACC spokesman.
After persistent prodding, Yassin agreed in March to an interview.
“I can help,” he said, but first requested an email detailing the issues to be addressed.
That was sent on March 20. No reply came forth.
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A week later, we went to his office and waited for over two hours at the reception at Integrity Centre. When he finally came down the stairs from his long meeting, he referred us to the EACC website.
“You will find all the information you need on the website,” he replied.
For the next couple of days, we dug through piles of downloads from the EACC website but the information on convictions in court wasn’t sufficient.
We called Yassin again.
“If it’s not there, it seems that we don’t have it. Kindly check with the DPP,” he responded.
In the coming weeks, we sought help from the DPP’s office located at the NHIF building.
The officers at the DPP gave us their strategic plan and a couple of speeches by the DPP Keriako Tobiko. Then they told us that they would respond to our requests.
After a week, there was no response from the DPP. Two weeks. A month. Nothing.
This week, we again tried to contact the EACC. Yassin referred us to the Director of Investigations, a Mr Abdi.
He even gave us a telephone number through which to reach him. When we called the number, a lady picked up and connected us. The line was picked by a man who faithfully listened to our long search for anti-corruption information.
“However, this is an insurance company,” he replied. “Don’t mind. We can sell you insurance,” he added.
The struggle to get official information on performance sums up the state of the war on corruption.
But records from the official website show since 2011, the EACC has received a total of 4,501 complaints on corruption that were relevant to the commission.
Out of these, the commission has completed investigations into 381 cases, a success rate of only 8 per cent.
Some 289 cases were referred to other investigative agencies namely the National Police Service (177), Kenya Revenue Authority (68), Independent Police Oversight Authority (17) and others (27).
A total of 1,251 of the cases were referred to other public organisations through letters and through the Integrated Public Complaints and Referral Mechanism.
By the end of 2014, the backlog of unallocated cases were 1,524, cases under investigation were 331 and the commission was supporting the prosecution of 268 cases.
But for the cases it handled, averagely it means that the commission only finalises 95 cases in a calendar year, meaning that without receiving new complaints, the commission needs another 47 years to complete its backlog!
Over the same period, EACC has managed to recover assets worth Sh2.67 billion but interestingly received Sh3.988 billion from the taxpayers meaning that we spend one and a half shillings more to recover a single shilling from the corrupt.
Since 2011, only 27 cases were finalised in courts. Of these there were only three convictions, the majority (nine) ended in acquittals, seven were lost after prosecutors entered “Nolle prosequi”, six were discharged and two withdrawn.
Perhaps one of the key strengths of EACC has been sting operations. However, when looked at keenly it doesn’t amount to much either.
Since its formation, the largest amount that EACC has obtained from a sting operation was Sh15 million in May 2015 from a KRA officials involved in impropriety. The others are small time bribes of as little as Sh500.
In April, 130 MPs against 52 voted to send home Matemu and his deputy Irene Keino. The President named a tribunal to investigate their conduct, but the two resigned before they could face the team. The other commissioner Jane Onsongo had resigned earlier.
Before that, Keino and Onsongo had ganged up against Matemu and written a letter to the President accusing him of unsavory things. However, before they were hounded out of office, the three later closed ranks in a face-off with the secretariat headed by chief executive officer Halakhe Waqo.
The EACC has a five-year strategy; the roadmap to a corruption-free country.
The commissioners had managed to install public hotlines, complaint boxes, took Anglo-Leasing scandal suspects to court and released the ‘list of shame’.
Officers at the office of the DPP have revealed that most files handed over to them from EACC rarely have “adequate evidence” for successful prosecution in court.
“The files seem well arranged. However, they have no evidence that you can use in court,” a senior public prosecutor who requested anonymity told The Standard.
Section 35 of the Anti-Corruption and Economics Crimes Act, 2013 requires that, upon completion of investigations, the commission shall report to the Director of Public Prosecutions on the results of the investigation.
The recommendations that EACC makes to DPP includes to prosecute, take administrative action where the evidence does not disclose any corruption yet the conduct of the public or State officer is called into disrepute or close the file where the evidence does not reveal any culpability.
Since 2012, the EACC has forwarded 311 files for evidence analysis. About a half of them, 151, did not have enough evidence for prosecution.