Director of Public Prosecutions (DPP) Noordin Haji has come under fresh scrutiny after it emerged that the process of extraditing former Kenya Power and Lighting Company MD Samuel Gichuru to the United Kingdom for trial over corruption has been halted, leaving his co-accused – former Energy minister Chris Okemo – to face the charges alone.
The development also leaves Mr Okemo the only fugitive in the two-decade old scandal fighting the extradition, a decision that has triggered protests by his lawyers.
They believe the decision is against the principles of fair trial as the former Cabinet minister will carry his burden and that of Mr Gichuru – the main defendant in the corruption case and “who stood accused of being the beneficial owner Windward Trading Company”– an entity that reportedly received close to Sh1 billion from foreign contractors in form of bribes more than two decades ago.
The two are wanted by Jersey authorities over bribery, theft of public resources and money laundering.
Yesterday, the DPP told the Sunday Nation that Mr Gichuru’s extradition has been put on hold on grounds of ill-health.
But Mr Okemo says he too is “a 75-year-old man in bad health” and that his extradition should be terminated.
In a letter to Mr Haji, Mr Okemo says the bank accounts that received the money were controlled by Mr Gichuru through agents.
He adds that the “selective” termination of the proceedings will result in him having undue burden of the criminality since two-thirds of the 53 corruption charges they are to face in the foreign country concern Mr Gichuru.
“Whilst Mr Okemo respects the prosecutorial discretion of your office, the decision to discontinue proceedings against Mr Gichuru creates an impression of vexatious litigation whereby neither the main perpetrator nor other Kenyan ministers who allegedly received payment via Mr Gichuru, nor the individuals or companies who have reportedly confessed to the payment of bribes to Mr Gichuru have faced prosecution,” Mr Okemo’s lawyer Fred Ngatia says in the letter to the Office of the DPP.
The extradition of the two Daniel Toroitich arap Moi-era government officials stalled due to legal challenges and a dispute between the DPP’s office and the Attorney-General over who should institute the action.
The Supreme Court on November 5, 2022 ruled that the mandate to start extradition proceedings falls with the DPP and not the AG, paving the way for Mr Haji to push for the pair’s transfer to Jersey Island.
In the letter to the DPP, Mr Ngatia questions the rationale of proceeding the extradition process against Mr Okemo “since Mr Gichuru is principal offender in the case”.
“Following the decision taken by your office to terminate and/or hold in abeyance extradition proceedings against Mr Gichuru, there are substantial grounds to consider that the continuation of proceedings against Mr Okemo is neither in the public interest nor the administration of justice and/or amounts to abuse of the legal process,” the September 9 letter says.
“As you will be aware, the case against Mr Okemo was secondary to the case against Mr Gichuru. It was Mr Gichuru who stood accused of being the beneficial of Windward Trading Company, through which the monies were laundered. He alone had control of this account through his agents. Indeed, the very core of the initial case against Mr Gichuru and Mr Okemo relate to bribes paid by foreign engineering contractors paid to Mr Gichuru in his position as Chief Executive of KPLC.”
Jersey prosecutors say Mr Okemo peripherally benefited from a limited number of bribes paid to Mr Gichuru by virtue of his role as Minister of Energy.
Since some allegations against Mr Okemo are inextricably linked to the case against Mr Gichuru, the lawyer says his client is being asked to defend himself and his co-defendant.
According to Mr Ngatia, the violations of Mr Okemo’s rights to fair trial have been compounded “by the fact that substantial disclosure concerning the ‘Windward file’, relevant banking material and transcripts were provided to Mr Gichuru and despite requests for disclosure, have not been provided to Mr Okemo”.
He adds that the case against Mr Okemo concerns indirect circumstantial evidence or second-hand hearsay.
“Essentially, Mr Okemo is tasked with defending himself against allegations concerning the conduct of Mr Gichuru without the ability to directly cross examine the underlying witnesses who allege that they paid bribes to Mr Gichuru,” Mr Ngatia says.
The two men are wanted by the Royal Court of Jersey for accepting bribes from foreign businesses that had contracts with KPLC.
But the DPP told the Sunday Nation that the extradition proceedings against Mr Gichuru have not been terminated or discontinued.
“This is permissible under domestic law, internationally and under the laws of the United Kingdom. According to a medical report availed to the DPP and extradition court, Mr Gichuru is critically and terminally ill,” he said.
“It is an internationally accepted principle that extradition may be postponed or held in abeyance on the basis that it would be unjust or oppressive or too severe a punishment for extradition to proceed.”
He added that the extradition proceedings against Mr Gichuru will proceed if his medical condition permits.
“This is not the first time the medical condition of a fugitive has been used as a basis for abeyance or postponement of extradition. While considering an extradition request made by...Kenya for the surrender of Mr Philip John Ransley to Kenya, the UK relied on the medical opinion of Dr David E Neal...to postpone and ultimately declined the request,” Mr Haji said.
Mr Okemo and Mr Gichuru are accused of money laundering and concealing of transferring the proceeds of crime, an offence that attracts a maximum of 14 years in prison, a fine or both according to the Jersey Law.
The two reportedly hid Sh997 million in hard currency in secret accounts in Jersey by causing the foreign contractors to make payments into the bank accounts of a Jersey company called Windward Trading Ltd.
UK authorities say Mr Gichuru used Winward Trading Ltd in Jersey, where the money was channelled to his accounts.
The amounts being investigated include $1.3 million to Mr Gichuru’s accounts as well as $5.5 million, $ 5.4 million and 1 million Danish Kroner to Winward.
The money paid to the bank account of the company was distributed according to instructions given by Mr Gichuru’s agents, including to the accounts of Mr Okemo and Mr Gichuru in Jersey.
Mr Okemo is to be charged with 13 counts relating to transactions in the accounts committed in the Island of Jersey between July 1, 1999 and 2001.
Mr Gichuru, for his part, is charged in the same court with 40 counts for offences committed in the Island of Jersey between 1991 and June 28, 2002.
The arrest warrants for the two were issued in April 2010 while the request of their extradition was received by Kenya’s AG on June 6, 2011.
The institution of extradition proceedings in court received substantial media coverage. Both men voluntarily presented themselves to court.
The extradition documents included indictments filed before the Royal Court of Jersey against the two and the summary of the evidence.
According to the summary of evidence, Mr Okemo served as Energy and Finance minister at different times during Moi regime.
He was the Minister for Energy in between 1999 and 2001 while Mr Gichuru was the Managing Director of KPLC from November 1984 to February 2013.
The DPP has in recent days been on the spot over flurry of the withdrawal of high profile criminal cases involving politicians and former government officials.
Early this week, the DPP said there is no evidence to sustain Mr Chumo’s conviction.
In August 2020, Mr Haji went for Malindi MP Aisha Jumwa’s jugular, accusing her of corruption.
He said there was evidence showing Ms Jumwa pocketed Sh2.5 million in kickbacks from Multiserve Contractors Ltd. Ms Jumwa is the Public Service Cabinet Secretary nominee.
A year later, it was former Meru Senator Mithika Linturi’s turn. The DPP said there was enough evidence to convict Mr Linturi for attempted rape.
The LSK is yet to decide what action to take against Mr Haji if a satisfactory explanation for withdrawals is not given.
Under the Constitution, the DPP is tasked with directing investigative agencies to look into and review files before approving or declining to charge anyone.
