This statement is issued in fulfillment of my pledge when I issued a press statement on 3rd October 2006 that I would be making my decision on the investigation files I had received from KACC. “In about two weeks.” I also assured the public that my decision on those files will be made in a transparent and professional manner and that I shall set out succinctly the reasons for my decision.

It is now an established legal requirement that the prosecution must disclose to the defence the entire of “the prosecution docket” in advance of the trial. This includes an obligation to supply the defence with copies of all statements of the prosecution witnesses and exhibits. It is therefore imperative that before any prosecution is commenced, the investigation file, which forms the basis of such prosecution, discloses sufficient admissible evidence. Such file should contain no material gaps or deficiencies, which would undermine a successful prosecution.

As I stated in my afore-mentioned press statement, upon receipt of the investigation files from KACC, which made recommendations that suspects be charged with various misdemeanors of a technical nature, I set up a specialized team of senior and experienced prosecutors who in the last 14 days have studied, reviewed and re-evaluated the evidence contained in the investigation files. The team has completed its work and submitted its recommendations to me, which I have now considered.

In their report to me, the team has identified a number of materials and significant gaps which in their opinion, and I agree, unless covered, a successful prosecution will not be possible. Indeed the identified gaps are such that if a prosecution were to ensue now, there is real danger of the cases being thrown out. The following are some of the gaps and deficiencies identified:

1. Most of the suspects named in all the inquiry files are proposed to be charged for failure to ensure that budgetary provisions were made for the projects in the estimates of expenditure approved by parliament contrary to s.3 (2) of the external loans and credit act

i) There is no evidence from any witness stating positively that there were no such provisions made in the estimates of expenditure or that parliament was not informed of the security contracts as
Required under s.5 of the external loans and credit act.

ii) Evidence is also needed to show that the monies paid for the projects in question from the consolidated fund were never at any time approved by parliament as required by s.100 of the constitution.

iii) Pursuant to paras (I) and (ii) above, statements should be recorded from relevant officials in treasury and the national assembly.

2. Most of the suspects named in all the inquiry files are proposed to be charged for failure to consult the central bank before entering into the external loans agreements in question contrary to s.31 of the central bank of Kenya act.

I) There is no formal statement from central bank on this aspect. It is critical that a detailed statement be recorded from the governor or any other relevant official to affirm positively that central bank was not consulted. It will also be useful to have a statement recorded from a relevant official from treasury.

ii) The statements from the relevant officials from treasury and central Bank should also indicate how such consultations are and were supposed to be carried out and who are the officials responsible for such consultations in central bank and the government.

3. A number of the proposed charges are based on failure to comply with regulations under the exchequer and audit act (public procurement) regulations 2001.

It is essential to record not a general but a comprehensive and detailed statement from the director of public procurement commenting on each of the contracts in question, and as an expert who implements the regulations, to comment on such issues as:

I) Who has the duty and responsibility to ensure compliance with regulations.

Ii) What is the responsibility of ministers, if any, in the procurement process?

Iii) Where an exemption has been granted by the minister under regulations 3(2):

a) Will the regulations still apply

B) Are the provisions relating to direct procurement still operative?

4. The cases under inquiry are document based. Consequently, the document examiners reports in respect of each file are essential and should therefore be availed.

5. Detailed statements of the investigating officers should be recorded and their investigation diaries prepared and availed.

6. Some of those recommended to be charged in some files are also at the same time key prosecution witnesses in other files. It is highly unlikely that these accomplices will give any evidence favorable to the prosecution and may turn out to be hostile witnesses in court. They should therefore be replaced as prosecution witnesses with any other relevant officers who are familiar with matters covered in their evidence.

The foregoing are but an indication of the gaps and deficiencies that need to be addressed. The director of public prosecutions will be communicating to KACC the details of the specific areas required to be covered on each investigation file.

In addition, KACC has admitted to me that the investigation files forwarded to me covered Only the local aspects and that the investigations relating to the international aspects are still on going. It would be useful if such investigations were expedited as they could have significant bearing on the intended prosecutions.

For the foregoing reasons, I have decided to request KACC to carry out further investigations to cover the identified gaps, finalise the international aspects of the investigations and re-submit completed investigation files with comprehensive reports to me in 30 days’ time for appropriate action failing which progress reports on the status of the further investigations be submitted to me. KACC is at liberty, as they carry out the further investigations to consult with the director of public prosecutions and his staff. This will ensure that the files are complete when they are resubmitted to me for final determination.

HON. PETER SOITA SHITANDA
KACC after due and proper investigations carried out after receipt of a complaint recommended that Hon. Shitanda be charged with making false mileage allowance claims and thereby fraudulently received a total sum of Kshs.285, 984/=.

However, taking into account all the facts and circumstances surrounding this matter, including the fact that 65 members of parliament who had been overpaid mileage claims had been allowed to refund and had in fact refunded the overpaid monies, it is my considered opinion that his is a proper case in which I should “temper justice with mercy” and forbear prosecution. I accordingly forbear prosecution but direct that Hon. Shitanda immediately makes arrangement with the clerk of the national assembly to repay the said sum of Kshs.285, 984/=.

I take this opportunity to warn any person who may be entitled to make such claims from the government that the issue of making false claims should not be treated lightly and that in future the amounts falsely claimed will not only have to be refunded but prosecutions will ensue.

Finally, let me once again state that it is inimical to the administration of justice when you politicize, engage in speculations and exert undue pressure of whatever nature on matters which are undergoing due process, you should therefore exercise considerable restrain, in your reportage on matters related to the due process of law.

AMOS WAKO E.G.H., M.P.
ATTORNEY GENERAL

18TH OCTOBER 2006