Court Declines to Hold Prosecutors Liable for Sh63bn Arror, Kimwarer Dams Scandal

The High Court of Rwanda has dismissed a petition by four lobby groups seeking to lift the immunity of two prosecutors involved in the Sh63 billion Arror and Kimwarer dams scandal. The petition was filed by Transparency International, Katiba Institute, the Kenya Human Rights Commission, and Africa Centre for Open Governance (Africog). They sought to hold prosecutors Geoffrey Obiri and Oliver Mureithi personally liable if former Treasury Cabinet Secretary Henry Rotich and other acquitted suspects sued the State for malicious prosecution.

The lobby groups argued that the prosecutors had neglected their duties, exposing taxpayers to compensation claims. However, Justice Chacha Mwita, now a Court of Appeal judge, ruled that there was no evidence the prosecutors acted unlawfully or in bad faith. The judge said the prosecutors had explained their requests for adjournments, citing the withdrawal of key witnesses and the absence of a substantive Director of Public Prosecutions (DPP).

The petition followed the acquittal of Mr Rotich and eight others on December 14, 2023, after the prosecution failed to present 41 witnesses. Trial magistrate Eunice Nyutu acquitted them under Section 210 of the Criminal Procedure Code and raised concerns about the prosecution's conduct. The lobby groups argued that the prosecutors should not enjoy immunity under Section 15 of the Office of the Director of Public Prosecutions Act because their actions were allegedly not taken in good faith.

The prosecutors told the court that on August 10, 2023, the Directorate of Criminal Investigations informed the DPP that four witnesses had recanted their statements. Another key witness, the former director of the Public Procurement Regulatory Authority, had died. Further communication from witnesses on August 30 confirmed their withdrawal, prompting Mr Obiri to seek directions from the DPP.

The acting DPP directed them to await the appointment of a substantive office-holder to review the case. Justice Mwita said there was no evidence that the prosecutors acted in bad faith or were influenced by external interests. He added that Section 15 protects officers from personal liability for actions undertaken in good faith while performing their duties.

Citing a Supreme Court decision, Justice Mwita said prosecutorial immunity safeguards independent decision-making by protecting officers from fear of personal liability. The judge's ruling upholds the immunity of prosecutors under Section 15 of the Office of the Director of Public Prosecutions Act. The Arror and Kimwarer dams scandal involved the alleged defrauding of the Government of Kenya to the tune of $500 million.

Several officials, including Henry Rotich and his former PS Thugge, have been charged in court in connection with the scandal. The case has raised concerns about corruption and governance in Kenya. The court's decision has significant implications for prosecutorial immunity and accountability in Kenya.

Key points

• The High Court has dismissed a petition seeking to lift the immunity of prosecutors in the Sh63 billion Arror and Kimwarer dams scandal.
• The court ruled that there was no evidence the prosecutors acted unlawfully or in bad faith.
• The decision upholds prosecutorial immunity under Section 15 of the Office of the Director of Public Prosecutions Act.