Why Gachagua could walk free of corruption charges
Deputy President Rigathi Gachagua could join the growing list of high-profile Kenyans whose cases have been dropped since President William Ruto assumed office last month.
This is after the Director of Public Prosecutions (DPP) signalled his intention to review the charges and evidence in the DP’s Sh7.4 billion corruption case.
Should the DPP decide to press on with the charges, Gachagua will be the first Deputy President under the 2010 Constitution to appear in a local court for criminal trial.
The Constitution however is not clear on whether the immunity enjoyed by the President against court proceedings extends to the Deputy President.
Under Article 143 (1) states criminal proceedings shall not be instituted or continued in any court against the President or a person performing the functions of that office, during their tenure of office.
Bid to adjourn
Following the above lacuna in the Constitution on whether the Deputy President can face any trial either criminal or civil while still holding the position, this put the prosecution into a difficult situation on how to proceed with the case facing Gachagua.
Apart from terminating the criminal trial, law experts say the Prosecution has the option of suspending Gachagua’s trial and reopen the same once he leaves the presidency.
When the matter was called for hearing before Milimani Anti-Corruption Court magistrate Victor Wakumile yesterday, Prosecutor Vera Hamisi asked for adjournment of the trial saying that the DPP needed more time to review the charges and the evidence in the case before commencement of the hearing of the witnesses.
“The DPP seeks three weeks to review the cases before giving directions on the same. The process is already ongoing and had received applications from some of the accused persons urging for review of their charges,” said Hamisi.
Gachagua’s lawyer Gibson Kimani did not oppose the DPP’s request. Gachagua was not present in court but the lawyer explained that he failed to appear because he thought the case would be heard virtually.
Hamisi did not dispute Gachagua’s absence in court saying that there was confusion on whether the case was to proceed virtually or in open court.
Terminating criminal trial
“In view of the application by the DPP to review the charges, l will not make any further orders in regard to the absence of the accused persons today,” said Wakumile.
While allowing the DPP’s request the magistrate ordered Gachagua, Nyeri Senator William Wahome Mwangi and eight others to appear in court in person on November 21 when Haji will be giving his final decision on the trial.
In the case, Gachagua and Senator Wahome are charged alongside Anne Nduta Ruo, Julianne Jahenda Makaa, Samuel Murimi, Grace Wambui Kariuki, Lawrence Kimaru, Irene Wambui Ndigiriri, David Reuben and M/S Rapid Medical Supplies.
The charge sheet states that on diverse dates between 2013 and 2020 in Nairobi, Gachagua allegedly fraudulently received Sh7,330,011,265 through three bank accounts domiciled at Rafiki Micro-Finance bank while knowing the monies were proceeds of crime.
The DP also accused that on December 29, 2014 in Nairobi county, jointly with others not before the court, he fraudulently acquired Sh6 million public funds for supply of Dialysis machines to Nyeri Provincial General Hospital.
Close associates
Gachagua was charged with money laundering for allegedly receiving a total of Sh104,821,205 from Bungoma County Government between January 2018 and June 2019, with intent to unlawfully dispose of monies. He is also alleged to have received Sh7,583,505 from the Kwale County Government with intent to unlawfully dispose of the money.
Gachagua is also charged with conflict of interest on grounds that between October 2018 and January 2019 being the Member of Parliament (MP) for Mathira Constituency he privately benefited from a contract awarded for construction of Njathaini Primary School, which was funded by the Mathira Constituency Development Fund (CDF).
The contract, according to the charge sheet, was awarded to a company owned by one of Gacagua’s close associates.
