Former Migori Governor Zachary Okoth Obado and 17 co-accused have been cleared in a corruption and money laundering case after the court allowed the Director of Public Prosecutions’ bid to withdraw the Sh73.5 million graft case against them.
In a ruling before Milimani Anti-Corruption, the court held that the plea agreement met the constitutional threshold of legality, public interest and proper administration of justice, paving the way for the withdrawal of all charges under Section 137A(1)(b) of the Criminal Procedure Code.
The court found that none of the charges facing the accused fell under offences excluded from plea bargaining, such as genocide, crimes against humanity or offences under the Sexual Offences Act.
Ethics and Anti-Corruption Senior Principal Magistrate Celesa Okore further held that the plea agreement was neither speculative nor unlawful, noting that the accused persons had already forfeited assets worth Sh235 million and two motor vehicles through a civil settlement agreement entered into with the Ethics and Anti-Corruption Commission in a separate suit.
According to the court, the civil forfeiture achieved the same objective that would ordinarily have been pursued through criminal forfeiture proceedings.
“The forfeiture in the civil case ought to constitute one of the pivotal or cornerstone factors in determining the pathway to take in plea bargaining,” the court ruled.
The magistrate added that the settlement served the broader public interest by recovering proceeds suspected to have been acquired through corruption, discouraging similar conduct and demonstrating that “corruption does not pay”.
Okore also dismissed the EACC’s objections to the plea agreement, finding that the commission had failed to demonstrate how the Director of Public Prosecutions abused his powers or acted against the interests of justice.
“In the circumstances, the objection by EACC remained merely a protest that it was not consulted without specific material or substance,” the ruling stated.
The court ultimately concluded that the plea agreement had passed what it termed the “triple test” of public interest, interests of administration of justice and avoidance of abuse of the legal process.
Wherefore, this court adopts the plea agreement as a judgement of this court. It follows that all the charges are deemed withdrawn against all Accused Persons under Section 137A(1)(b) of the Criminal Procedure Code,” the ruling stated.
Speaking outside court after the decision, Obado criticised the manner in which investigations and prosecution had been conducted, arguing that the case lacked substantive evidence from the onset.
“The EACC presented only one witness since the matter was brought to court. Ordinarily, we expect the investigating officer to be the last witness to tie up what other witnesses would have presented, but he was the first and only witness,” Obado said.
He further questioned why procurement officers and finance officials allegedly involved in the transactions were never called to testify.
“How do you conspire to defraud the county without bringing forth the procurement officers and finance guys who allegedly participated?” he posed.
Obado also faulted the prosecution for charging members of his family despite, according to him, not being signatories to procurement processes or county accounts.
“My children are grown-ups under the law. If there were offences they committed, then they should be charged on their own,” he said.
The former governor likened the prosecution to “taking the president to court because employees in public works or water departments have committed an offence.”
The case had centred on allegations of conspiracy to defraud Migori County through irregular procurement dealings and money laundering claims involving Obado, members of his family and several associates.
In a detailed ruling, the court held that the plea agreement met the constitutional threshold of legality, public interest and proper administration of justice, paving the way for the withdrawal of all charges under Section 137A(1)(b) of the Criminal Procedure Code.
The court found that none of the charges facing the accused fell under offences excluded from plea bargaining, such as genocide, crimes against humanity or offences under the Sexual Offences Act.
Ethics and Anti-Corruption Senior Principal Magistrate Celesa Okore further held that the plea agreement was neither speculative nor unlawful, noting that the accused persons had already forfeited assets worth Sh235 million and two motor vehicles through a civil settlement agreement entered into with the Ethics and Anti-Corruption Commission in separate anti-corruption recovery suits.
According to the court, the civil forfeiture achieved the same objective that would ordinarily have been pursued through criminal forfeiture proceedings.
“The forfeiture in the civil case ought to constitute one of the pivotal or cornerstone factors in determining the pathway to take in plea bargaining,” the court ruled.
The magistrate added that the settlement served the broader public interest by recovering proceeds suspected to have been acquired through corruption, discouraging similar conduct and demonstrating that “corruption does not pay.”
Okore also dismissed the EACC’s objections to the plea agreement, finding that the commission had failed to demonstrate how the Director of Public Prosecutions abused his powers or acted against the interests of justice.
“In the circumstances, the objection by EACC remained merely a protest that it was not consulted without specific material or substance,” the ruling stated.
The court ultimately concluded that the plea agreement had passed what it termed the “triple test” of public interest, interests of administration of justice and avoidance of abuse of the legal process.
Wherefore, this court adopts the plea agreement as a judgement of this court. It follows that all the charges are deemed withdrawn against all accused persons under Section 137A(1)(b) of the Criminal Procedure Code,” the ruling stated.
Speaking outside court after the decision, Obado criticised the manner in which investigations and prosecution had been conducted, arguing that the case lacked substantive evidence from the onset.
“The EACC presented only one witness since the matter was brought to court. Ordinarily, we expect the investigating officer to be the last witness to tie up what other witnesses would have presented, but he was the first and only witness,” Obado said.
He further questioned why procurement officers and finance officials allegedly involved in the transactions were never called to testify.
“How do you conspire to defraud the county without bringing forth the procurement officers and finance guys who allegedly participated?” he posed.
Obado also faulted the prosecution for charging members of his family despite, according to him, not being signatories to procurement processes or county accounts.
“My children are grown-ups under the law. If there were offences they committed, then they should be charged on their own,” he said.
The former governor likened the prosecution to “taking the President to court because employees in public works or water departments have committed an offence.”
The case had centred on allegations of conspiracy to defraud Migori County through irregular procurement dealings and money laundering claims involving Obado, members of his family and several associates.
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