Nolle prosequi a two-legged stool the under current dispensation

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By Sunday Memba

Nolle prosequi is the power of the prosecution to terminate a criminal trial at any stage before judgment. In “Crispus Njoga vs. The Attorney General (Criminal Application no 39 of 2000)”, nolle prosequi was defined as a merely procedural device through which the state can exercise her prerogative powers to end criminal proceedings.

In the repealed constitution, the attorney-general had the power to terminate any criminal matter before judgment.  By virtue of Section 26(3) of the former constitution and section 82(1) of the Criminal Procedure Code (CPC), he was the bearer of this duty. Section 83 of the CPC also enabled him to delegate this power to persons acting as state counsels, solicitor-general and the deputy public prosecutor.

The office of the Director of Public Prosecutions was created by an amendment in 1998 to the former constitution. This, however, did not pass the Attorney General’s power of prosecution to the DPP immediately. This portfolio was largely administrative and thus the DPP did not exercise the power to inhibit prosecutions. The courts also did not recognise him as a competent individual to enter a nolle prosequi.

In “Keynan Wehliye vs. Republic (Criminal Case No. 223 of 2003)” it was held that the office of the DPP is a legal one but a nolle prosequi purported to originate from the office is illegal.

In our current constitutional dispensation, this power of the prosecution to close criminal prosecutions is also recognised. Article 157(6) of the Constitution vests the prerogative powers of nolle prosequi to the Director of Public Prosecutions. This is actually a great leap forward. One of the members of the cabinet is the attorney-general. Having this duty in another portfolio slightly makes the criminal prosecutions seem independent.

A major setback of the principle of nolle prosequi in the old constitution was that it took precedence over judicial control. In subordinate courts, the attorney-general had no task of explaining to the court why he would wish to have the case cul de sac. At the superior courts, the AG was required, pursuant to article 123(8) of the constitution, to give reasons before entering a nolle prosequi. This was, however, a flowery provision with no scent. The attorney-general only gave reasons when he was the court ordered so.

In “Rupert Nderitu and another vs. Republic (Criminal Appeal No. 319 of 1985), the High Court (a superior court) held that the attorney-general could enter a nolle prosequi without leave of the court. Considering this was an appeal, a lower court had already pronounced itself on the matter. This is despite the provision that a nolle prosequi cannot be entered after judgment. On the contrary, the High Court, in “Crispin Njogu Karanja v The AG”, required the attorney-general show the reason(s) he is terminating the case.

Currently, the DPP is mandated, by virtue of Article 157(8) of the Constitution, to give reasons before he enters a nolle prosequi. This mirrors the High Court decision in Crispin Njogu before the promulgation of then Constitution, 2010. If a nolle prosequi is oppressive, unreasonable and capricious, the court will refuse to entertain it. This was decided in “Republic vs. Adan Keynan [2005] 1 KLR 837”, where the prosecution sought to terminate a case after 11 witnesses had testified.

One of the great impediments to citizens commencing private prosecutions was the attorney-general’s power to enter a nolle prosequi. For instance, when Clifford Derrick Otieno commenced criminal proceeding against the late Lucy Kibaki, the prosecution was quick to enter a nolle prosequi. This was the same fate of the Tom Cholmondley when he was accused of murder.

In “Richard Kimani and M. Maina vs. Nathan Kihara (Criminal Case No. 11 of 1983)” the court opined that private prosecution was an instrument that would tame influential and wealthy persons who would interfere with prosecution if accused of breaking the law.

The Constitution, in Article 157(6)(b), gives a private citizen the power to commence a criminal prosecution. Private prosecution is given more flesh in section 88 of the Criminal Procedure Code. One of the benefits of this provision is to remedy situations when the prosecution becomes reluctant to prosecute a criminal case. Private prosecution may also occur when it is evident to the complainant or victim that there would be bias.

In “Clifford Derrick Otieno vs. Lucy Kibaki (Misc. App No. 5 of 2005)”, the complainant Otieno alleged that Lucy Kibaki had assaulted him and unlawfully damaged his video camera. The DPP then entered a nolle prosequi with reasons thereof. The Chief Magistrate went ahead to accept the nolle prosequi and terminate the case. On further review of the decision, the High Court did uphold the Chief Magistrate’s position.

The Clifford case is one of the numerous instances where the DPP could use the tool of nolle prosequi to protect the big cheese from facing prosecution. This is no longer an open sesame to employ in restricting the force of criminal law. Cases decided under the current constitution have greatly minimised this rule. In “Republic vs. Wekesa and another [2010] eKLR”, the court ruled that the prosecution should provide sufficient reason before a writ of nolle prosequi is entered. The writ may only have entered after meeting three crucial elements. It must be in the interest of the public. Secondly, it must be in the interest of the administration of justice. Nolle prosequi must also prevent and avoid the abuse of the legal process.

This move in the Constitution raises a plethora of questions. Does the current jurisprudence relating to private prosecution vis-à-vis nolle prosequi interfere with the state’s duty to carry out prosecutions? Would it be legal for persons to change horses midstream in state conducted prosecution? Or would we be obliged, faute de miex, to let police do their job.

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