By Shadrack Muyesu
Process is crucial to the administration of justice. Without it, the court room would be a world of chaos. Articles 47 and 48 of the Constitution are instructive in this regard. But more than that, courts have come out to say that the right to fair administrative action imposes a duty of observance on not only judicial and quasi-judicial bodies, but also those tasked with investigations that could potentially significantly affect the perception of the accused among the upright society, or even warrant the commencement of a prosecution – (Re Pergamon Press Ltd  Ch. 388 and Eng. Michael Kamau and Charity Ngilu and10 others vs the EACC and 2 others Petition no. 230 of 2015 Consolidated with Petition Nos. 305, 324 and 203 of 2015 where the court indicted the EACC for failing to conduct proper investigations).
Article 157 of the Constitution of Kenya 2010 creates the office of the Director of Public Prosecutions (ODPP). Bestowed upon him are the powers to institute and undertake any criminal proceedings against any person and in any court other than a court martial in respect of any offence alleged to have been committed; to undertake and continue any criminal proceedings that may have been commenced by any person or authority in any court of law with the permission of that person or authority; and to discontinue proceedings at any stage before judgment for any such proceedings he takes over or institutes. We often complain about the President, on the slow-grinding wheel of justice, yet this is the man we ought to have our sights trained on.
The Constitution has moved to protect the DPP by granting him total independence from any other entity bathe Constitution, in the exercise of his functions. Commendably though, there also exist checks and balances within the law to ensure that he does not abuse his office. The DPP cannot, for instance, issue a writ of nole prosequi without first informing the court. Most importantly, the DPP cannot commence proceedings against any person without a strong prima facie case.
The Code for Prosecutors of the Crown Prosecution Service of the United Kingdom as reflected in our own prosecution policy, The National Prosecution Policy, revised in 2015, provides, inter alia that: “Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.” As laid out in R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001:
“…a prudent and cautious prosecutor must demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution, otherwise the prosecution will be malicious and actionable” (emphasis is mine).
In Michael Kamau the Court stated:
“…criminal process ought to be invoked only where the prosecutor has a conviction that he has a prosecutable case. Whereas he does not have to have a fool proof case, he ought to have in his possession such evidence which, if believable, might reasonably lead to a conviction. He does not have to have evidence which discloses a prima facie case under Section 210 of the Criminal Procedure Code since a decision as to whether a prima facie case is disclosed is a jurisdiction reserved for the trial Court. He, however, must have evidence which satisfies him that his is a case which must be presented before a trial Court. He must consider both incriminating and exculpatory evidence in arriving at discretion to charge the accused. Unless this standard is met, the Court may well be entitled to interfere with the discretion of the prosecutor since that discretion is not absolute…”
Curiously, in Michael Kamau, the Court yet observed: “It must be acknowledged, that we have excellent investigators and state prosecutors who painstakingly do their work, and do not effect an arrest or prosecution until they have sufficient evidence to present before a court. Such officers are to be commended, and encouraged. But we also have many others who arrest first, and seek to investigate later. This court does not need to emphasise that it undermines the administration of justice, and the public confidence in the justice system, when arrests are made and shoddy investigations undertaken.”
It stems from the above therefore that the DPP ought to be very careful about the cases that he brings to court. Incomplete files may not only mean an abuse of the court process that culminates in such a case being thrown out, but also to an action of malicious prosecution instituted against him.
Ironically, the independence of the ODPP also poses its biggest challenge. There is absolutely no means of determining whether dead investigations are actually dead because of the aforementioned reasons. Whether the previously stalled investigations are thus stalled for want of the evidence and not bad faith, we may never know. Indeed, no one can compel such an answer from the DPP. That is the sadness of the rule of law: procedure and non-interference!
Burden of proof
In bribery claims, the prosecution has to establish the nexus between the alleged bribery payment and the favour sought. It may not be enough to show the presence of unexplained assets. At best, unexplained assets are circumstantial evidence which alone cannot deliver a guilty verdict.
For any corruption case to stand a chance of successful prosecution, tacit understanding needs to exist between two persons where one agrees to offer a certain payment in order to obtain a certain benefit, from a public official acting in their official capacity. Such a benefit is not just a benefit for a specific professional engagement, but rather an undertaking that would constitute a breach of their professional code of ethics. Most of the time, the only sure way of proving payments is by way of investigation of suspects’ bank accounts. Even then, one does not just appear before a magistrate ex parte and say that they need a warrant to look into a suspect’s account. Such an action must be influenced by reasonable suspicion based on facts that actually existed at the time of adopting the suspicion. And whether the facts actually existed at the time of making the suspicion may only be tested objectively by a court! What is common with Kenya is that there will be reasonable suspicion but no facts. But even reasonable suspicion is not enough. Such warrants must be properly obtained and pass the jurisdiction test otherwise the suspect walks.
A rift has recently emerged between the ODPP and the DCI over what the DCI terms as the former’s deliberate ploy to delay justice by holding onto case files. The feud played out in public recently when the DCI arrested two state officials and arraigned them in court only for Noordin Haji to disown the charges for reasons that he had not been consulted. In the absence of charges, the surprised magistrate had no choice but to release the accused persons.
We can only speculate on the real reasons behind their spectacular fallout, but if the law is anything to go by, it would be easy to see why the ODPP acted the way it did. It is clear that the DPP acted within his powers – he not only had to be consulted before any charges were preferred, it is actually his sole duty to draft the charges and prosecute the case before the court. To proceed without consulting the DPP was thus a gross abuse of process on behalf of the DCI. But that doesn’t absolve him of blame.
Hundreds of cases have been commenced since the dynamic duo took over. Very few have advanced beyond plea stage with none whatsoever concluded. Many reasons have been given for this turn of events, chief among them being poorly drafted charge sheets and shoddy investigations.
While good practice is for charge sheets to carry no more than six accused persons, it is a known fact that ODPP’s charge sheets often carry tens of accused persons. The problem with this is that not only is the court, and indeed the DPP, hamstrung on time to prosecute individual cases, there’s also no one left to testify against the big fish with all potential witnesses named as co-accused. Without evidence and time, these cases are dead on arrival.
The DPP may blame DCI for poor investigations and rightly so, but the latter neither drafts charge sheets nor approves cases for prosecution. If weak cases have found their way to court in the past then the DPP is solely to blame. Then, he ought to have prevented a court process until he was satisfied that there was a strong prima facie case as he claims to be doing now. That it didn’t happen in the past raises curious questions he must answer.
A history of bad faith
In the past the two offices have colluded to cover up state excesses. Could it be that we are witnessing the outcome of a deal gone wrong? Is the case a casualty of the spectacular fallout between President Uhuru Kenyatta and his Deputy William Ruto? There are those who are better placed to answer these question but what comes out for sure is this: the DPP and the DCI have recently conspired on behalf of a dubious maize cartel to eliminate the competition by bringing charges of contamination that they could not substantiate. As was the idea all along, they ended up withdrawing the case once certain that their benefactors had sold their cargo.
It doesn’t speak well of the two offices to go after Keroche and Africa Spirits Limited for tax evasion a few months after the President’s family acquired a major stake in the leading East Africa Breweries Limited and more so when a taxman had controversially exempted the NIC and Kenyatta owned CBA Bank merger deal from paying the requisite taxes.
It is also difficult to analyse the decision to go after DCJ Philomena Mwilu and Prof. Tom Ojienda outside the President’s promise to revisit the Judiciary, and without paying attention to powers the Judicial Service Commission enjoys over the arm of government.
The decision to prosecute William Ruto’s case in the public also doesn’t speak well of a unit with a large appetite for dramatic arrests. There are many other examples that show that the two agencies could have been used for selfish gain and if that’ true, then this may well be the case of a fallout between thieves.
— Writer is Legal Officer, Turkana University College