KAIKAI’S KICKER: The withdrawal symptom and Noordin Haji’s legacy

On my kicker tonight, few believers of a well functioning, independent, just and effective public prosecutions directorate may shed a tear over the impending early exit of Noordin Haji as Director of Public Prosecutions (DPP).

Haji’s forthcoming departure comes at a time the Office of the Directorate of Public Prosecutions is suffering a decline in public confidence occasioned by the growing perceptions that neither Haji nor the institution he leads are capable or willing of the institutional and operational independence envisaged by the Constitution of Kenya 2010. Withdrawal, rather than successful prosecution of cases, has in recent months been the hallmark of the office of the DPP. And though withdrawing cases is within the powers of the DPP as per Article 157 of the Constitution, the pattern of withdrawal has left an unmistakable imprint of a spectacular political heatmap on the landscape.

Ruthless critics would not beat about the bush; they would directly link the withdrawal of cases by the DPP to the outcome of the August 9 election last year. The list of beneficiaries of Haji's frenzied termination of cases reads like the who-is-who of the new administration. And from rape to corruption and illegal possession of firearms to murder, the nature, handling and consequence of crimes appeared to change overnight pegged entirely on the changes at the political scene. Certain high profile suspects suddenly became saintly pity-evoking victims and eloquent reciters of the accompanying mantra that the regime of former President Uhuru Kenyatta had fabricated allegations and charges against them because they were allies of the then Deputy President and now President William Ruto.

Being the Director of Public Prosecutions on both sides of the political transition, Haji has had the rather untidy duty of performing the acrobatics involved in withdrawing his own cases. In a spectacular backflip in February this year, the DPP suggested an improved political goodwill environment for his office since last year's political transition. It is a remark that opened itself to questions on the independence of the office of DPP as envisaged in Article 157 sub-article 10 which expressly states that the Director of Public Prosecutions shall not require the consent, authority, control or direction of any person or authority.

And as Noordin Haji proceeds to head the National Intelligence Service, the search begins for that first Kenyan that will move the Directorate of Public Prosecutions close to the robust, independent and public interest spirited institution the Constitution of Kenya 2010 dreams of.

That ideal public prosecutions directorate should not act like a windvane at the mercy of political winds; and the sails of the new Director of Public Prosecutions should not be directed by political currents.

The new Director of Public Prosecutions should be blind to election outcomes, unbothered of winners or losers and ultimately, loyal only to the cause of a functioning criminal justice system. In the eyes of the new DPP, all criminal suspects should be treated equally and ‘high profile’ should cease to be a defence in criminal matters.

I look forward to an Article 157 prosecutor bursting with passion to grow his or her sub-article 9 subordinates with whom he or she will share prosecutorial powers. A public spirited director of prosecutions who will raise the energy, capacity and profile of the directorate to its deserving standards.

In a country and judicial system that is increasingly getting accustomed to robust courtroom performances and precedent setting judgments, the new Directorate of Public Prosecutions has no choice but to be that visible, consequential go-between. And out of the many brilliant barristers Kenya has produced over, the next Director of Public Prosecutions should surely have some prior courtroom experience.

By its very nature, prosecution is practical, not spiritual.