Courts move to rein-in ODPP in case termination 

The withdrawals caught the investigators of the DCI and the EACC by surprise as the files had been worked on in synergy with the prosecution agency, and the decisions to proceed with charges were arrived at by concurrence

By David Wanjala

I

t is no longer a free rein for the Office of the Director of Public Prosecutions (ODPP) when it comes to the withdrawal of ongoing cases as courts begin to reclaim their constitutional stake in that process.

Months into the new regime of Kenya Kwanza Government, the ODPP surprised not only the public but also stakeholders in the criminal justice system, more so the Judiciary, the Directorate of Criminal Investigations (DCI), and the Ethics and Anti-Corruption Commission (EACC) with a series of withdrawal of ongoing corruption-related cases of high public interest.

The withdrawals caught the investigators of the DCI and the EACC by surprise. These are files that had been worked on in synergy with the prosecution agency, and the decisions to proceed with charges were arrived at by concurrence.

The most shocked institution in the chain of criminal justice system, however, must have been the Judiciary. Ambushed, the courts sat on the fence and provided no oversight as the ODPP roamed the corridors of power, cherry-picking cases to drop at will.

That is, however, changing now as the Judiciary reawakens to the reality that, indeed, the supreme law apportions courts oversight powers and expressly defines parameters under which the ODPP can withdraw cases or drop charges on accused persons in cases already before the courts

In a recent ruling, the Chief Magistrates Court in Milimani was, for instance, categorical in dismissing the Director of Public Prosecutions (DPP)’s application in criminal case No. 26 of 2019 to have charges against accused No. 9 in the case dropped. The DPP, the Court ruled, was not convincing as to why the case against Ms. Zhang Jing should be discontinued and warned at the same time, that the Court will not be used as a rubberstamp for discriminatory withdrawal of charges.

Criminal case No. 26 of 2019 is an anti-corruption case in which Ms. Jing, a director of Erdemann Property Limited, is charged, alongside 12 others, with various offences relating to the Lake Basin Development Authority (LBDA) Lower Kanyakwar phase one Project in Kisumu.

Alongside the other accused, Ms. Jing is charged with conspiracy to commit an offence of corruption, three counts of unlawful charging of public property, fraudulent acquisition of public property, and corruptly giving a benefit.

The Court heard that between November 2nd, 2012, and May 2nd, 2018 the Managing Director, members of the Board of Directors of LBDA, proprietor of Quantech Consultancy, directors, and limited liability companies conspired to commit fraud leading to the loss of Sh4.51 billion in respect of a tender for construction, development and financing of a retail mall known as the LBDA Lower Kanyakwar phase one project.

Ms. Jing, alongside Peter Aguko Abok (Managing Director LBDA), George Onyango Oloo (Chair, Board of Directors of the LBDA), John Zeyun Yang (Director Erdemann), and Erdemann Property Limited charged public lands LR number 15239 (IR150443) for the sum of Sh1.2 billion, LR number 15239 (IR150443) for a sum of Sh620 million and LR number 15239 (IR150443) for a sum of Kes680 million all belonging to the LBDA without the consent of the responsible Cabinet Secretary and the National Treasury.

She is also charged that between May 11th, 2015, and August 22nd, 2018, she and John Zeyun Yang and Erdemann Property Ltd fraudulently acquired Kes4.6 billion in respect of a tender for the construction, development, and financing of the retail mall at Kanyakwar in Kisumu City. The Court also heard that they corruptly gave Sh17 million to George Onyango Oloo, the Chairperson of the LBDA, on May 11th, 2015, as an inducement to facilitate the allocation of funds to the LBDA in respect of the construction, development, and financing of the retail mall.

The application’s main prayer was that the case against Ms. Jing be withdrawn under Section 87(a) of the Criminal Procedure Code. The application was premised on three major grounds; that Ms. Jing pleaded not guilty to all the charges against her; that the DPP had received a review request by Ms. Jing invoking Article 157 (6c) and (11) of the Constitution and Sections 4 and 5 of the ODPP Act. Lastly, upon review of the evidence and issues raised by the accused, the DPP established that her role was limited to being the director of Erdemann Property Limited and did not play an active part in the impugned transactions.

The DPP unsuccessfully argued in the application that upon review of the evidence, he established that Ms. Jing’s role was limited to the execution of agreements related to the project. That the documents she executed were not in themselves adequate to sustain a decision to prosecute given the totality of evidence and that at all material times, it was accused number 1O, John Zeyun Yang, who was the active director involved in the day-to-day affairs of Erdemann Property Limited.

While Article 157 (6) (c), the Court averred, gives the DPP power to discontinue criminal proceedings at any stage before judgment is delivered, (8) of the same Article restrains the DPP from doing so without the permission of the court.

Among the pertinent issues that the court identified for determination was whether the threshold in Article 157 (11) regarding public interest, interests of the administration of justice, and the need to prevent and avoid abuse of the legal process was met by the application.

The LBDA is a public body established pursuant to Section 3 of the LBDA Act that provides for the establishment of an authority to plan and coordinate the implementation of development projects in the Lake Victoria catchment area. The Court took special exception in counts touching on the unlawful charging and issuance of a guarantee on the LBDA property, a matter it regarded as being within the public interest realm, and wondered whether the DPP sought to drop charges against the ninth accused put that into consideration.

The Court also wondered what informed the DPP’s decision to drop charges against one director and not the other, of the same company facing similar charges. The DPP’s averments that Ms. Jing was not actively involved in the day-to-day management of the affairs of their company despite signing the documents that led to the charges before the court did not sit well with the Court.

The charges, the Court argued, did not challenge the day-to-day running of the company; instead, they challenged the specific acts by the company’s two directors. It found the DPP’s proposition that the available evidence against Ms. Jing was not sufficient to sustain a prosecutorial decision against her for the offences of unlawfully charging a public property to be “dangerous”.

With the hindsight of already having listened to eight witnesses, the Court averred it either hears the case on merit or have the argument applied on all accused persons whose role was execution of documents. Besides, Ms. Jing was also charged with corruptly giving a benefit as well as conspiracy to commit an offense of corruption, which the DPP chose to ignore in their application.

Article 157 sub-article 11 intended that the DPP must exercise the power to discontinue proceedings in a manner that upholds the proper functioning and integrity of court and the rights guaranteed to the parties in the proceedings.

The absurdity arising from the discriminatory withdrawal of charges against the accused persons involved in the same transactions and facing joint charges did not also sit well with the Court, which felt that allowing such prejudicial withdrawal of charges would have a bearing on the perception of its integrity.

The fact that the accused placed a review request to the ODPP did not amuse the court either. “Is this to mean that only an accused who makes a request for review is considered, or is it, not the mandate of the prosecuting counsel to understand their case well enough to know which charges are sustainable and which ones are not? Is this court then to expect similar applications for withdrawal from the rest of the accused persons?” the Court posed.

Citing Thuita Mwangi and two others Vs EACC and 3 others (2013) EKLR, the Court stated that “the discretionary power vested in the ODPP is not an open check and such discretion must be exercised within the four corners of the Constitution.”

In the end, the Court ruled, among others, that Criminal Case No. 26 of 2019 is a case involving a public body with the alleged loss of public property, and therefore, the public interest principle demands that the same should be heard on merit.

The next time the ODPP mulls heading to court to withdraw a case or charges, they will have to think twice. It is no longer going to be a walk in the park.