Former Sports Cabinet Secretary Hassan Wario has urged a court to acquit him from a corruption case related to the theft of Sh55 million meant for athletes who competed in the 2016 Olympics in Rio, Brazil.
In his written submissions, Mr Wario says the Director of Public Prosecutions has not been able to prove the four counts leveled against him. In the first count he is charged with engaging in a project without prior planning while the other three counts are on abuse of office.
The prosecution accused Mr Wario of improperly conferring a benefit on three persons by including them in the delegation to Rio.
The prosecution called 22 witnesses while Mr Wario was put to his defence and called seven supporting witnesses.
Mr Wario says the first count, which is based on Section 45(2) (c) of the Anti-Corruption and Economic Crimes Act, has no standing in law and is defective because he has not been charged with the loss of public revenue or property.
"Section 45 of the Anti-corruption and Economic Crimes Act, provides for protection of public property and revenue. The first count as framed cannot stand without the element of public revenue or property. The accused persons have not been charged with the loss of public revenue or property," he argues.
He also argues that there is no offence in law called “engaging in a project without prior planning.”
Mr Wario also submits that he did not have a hand in the procurement of tickets, cancelling of tickets, payment of Greenbay and overpayment of allowances.
He has referred to court to the evidence of two prosecution witnesses - Ms Anne Njambi, a member of the Central Management Committee of NOCK, and James Mukui Chacha. Mr Wario says Mr Chacha had said it was he (Chacha) and Njambi who were in charge of ticketing.
In its case, prosecutors alleged that officials of the National Olympics Committee of Kenya (NOCK) together with the Ministry of Sports engaged in the planning and management of funds meant for the Rio Olympics without exercising proper management thus resulting in the loss of public funds.
The court heard that prosecutors proved outright misuse and wastage of taxpayer money arising from poor planning and it was a well-orchestrated plan by a few government officials and those from NOCK.
Mr Wario is alleged to have been a member of the Rio Olympic Games Steering Committee and he failed to undertake proper planning.
"This is admitted by all the prosecution witnesses including the Investigating Officer who in his examination-in-chief stated that; “the members of the Steering Committee were appointed by the Cabinet Secretary and the Steering Committee was to be chaired by Richard Titus Ekai (former Sports Principal Secretary," argues Mr Wario.
He tells the court that the investigating officer testified that the only reason the former CS was charged with abuse of office was that he attended two of the steering committee meetings.
"Criminal liability is personal and not collective. Charging Wario for alleged omissions or commissions of a committee that he is not a member of is against principles of criminal law as every person bears personal responsibility based on their actions or inactions," he argues.
In regard to the second and third counts, he is charged with abuse of office contrary to Section 46 as read with Section 48 of the Anti-Corruption and Economic Crimes Act.
The particulars are that he used his office to improperly confer a benefit to Richard Abura and Monica Nkina Sairo by including them on the list of delegates who travelled to Rio for the games.
Abura is an assistant director of public communications at the ministry while Ms Sairo was his deputy, the court heard. They handle communications at the ministry.
Mr Wario relies on evidence from a prosecution witness, Duncan Ashubwe, a supply chain officer who testified that he did not receive any instructions from the Cabinet secretary to include anyone in the Rio delegation.
He, however, says it was warranted that Abura and Sairo travelled for the Olympics because personnel from private media houses were carrying out media functions for their employers and not the government.
He says that at the time of the Olympics, Kenya was facing negative publicity over doping and it was crucial for the ministry to have employees in charge of communications.
The fourth count also relates to abuse of office and the former CS is accused of including Adan Omar in the Rio delegation and illegally conferring a benefit to him.
Mr Omar was a director at the Sports Fund, whose role is to raise money for sporting activities in Kenya.
Mr Wario has reproduced evidence from Mr Omar (a prosecution witness), who testified that the board of the Sports Fund decided to travel for the Rio Olympics for benchmarking purposes so as to learn on best practices.
Mr Omar testified that he travelled with the chairman of the Sports Fund, Sam Kairu, and its CEO Jackson Indakwa.
Mr Omar testified that their approval to travel was sent by the National Steering Committee. He also testified that he was not a joyrider or a tourist and that the Cabinet secretary was not known to him.
"The prosecution has not adduced any evidence to prove the contrary. Equally, the prosecution itself, just like the defence proved that his travel was justified and not out of abuse of office," Mr Wario says.
