Director of Public Prosecutions (DPP) Noordin Haji wants the High Court to determine whether a cabinet secretary should personally be held accountable for actions made in exercise of his or her powers while carrying out official functions.
In an application before the High Court, Mr Haji also wants the court to determine whether CSs are immune from criminal prosecution for acts and omissions in the course of their duty.
The DPP made the application in a petition filed by former Treasury CS Henry Rotich, who has challenged his prosecution over the Sh63 billion Arror and Kimwarer dams scandal.
The former CS has argued that he was not responsible for procurement of the tenders and that he was not the accounting officer at Treasury. He says he only discharged his duty at the tail end of the process as required by law.
Mr Rotich also questioned why the DPP left out key players in the deal including former Attorney General Githu Muigai, solicitor-general Njee Muturi and Environment CS Judi Wakhungu.
The DPP also wants the court to determine whether the decision to prosecute a CS can be faulted on account of pronouncements by political leaders that have no connection to the case or evidence available to the DPP.
In the application, Mr Haji says various courts have given different interpretations on the extent to which they can review the decision to charge graft suspects.
“Recently, some courts have reviewed the DPP’s decision to charge, not based on proof of violation of constitutional powers in the decision-making process, but based on ‘lack of sufficient evidence’, issues which should conclusively be determined by the trial courts,” he said in the application.
Mr Haji says the decision to review graft charges for lack of sufficient evidence has opened a floodgate of litigations, such as the case filed by Mr Rotich.
“The DPP in executing his mandate works at safeguarding the best interest of the public through prosecution of criminal matters, which include prosecution of corruption and economic crimes that have led to the loss of colossal sums of monies with devastating effects to the economy,” he said.
He said the issues raised are of great importance in the war against corruption and wants the issues conclusively determined by a bench of more than two judges.
Mr Rotich had moved to the High Court to question why he was charged while other key players, who sanctioned the multi-billion dams' deal, were left out.
He said the DPP selectively left out experts from the Environment ministry who provided necessary opinion before writing to the Treasury to request funding for the two dams in Elgeyo Marakwet County.
“It is absurd that the respondents chose to charge me while the Attorney-General is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity and fair administrative action,” he said in an affidavit.
Mr Haji dropped charges against former Treasury PS Kamau Thugge and Dr Susan Koech, a former PS in the Environment Ministry, instead choosing to use them as witness in the trial against Mr Rotich.
Mr Rotich said he signed the agreements at the tail end as part of his statutory responsibilities and that the process was undertaken by the parent ministry and Kerio Valley Development Authority (KVDA).
He revealed that Ms Wakhungu, who is currently Kenya’s ambassador to France , wrote to Treasury in March 2016, forwarding the projects’ documents for the two dams, which included the identified financing proposal and requested government to fund the projects on behalf of KVDA.
