YVONNE'S TAKE: Just what is going on at the office of the DPP?

Aisha Jumwa Ksh.19 million graft case withdrawn. Murder charge against Aisha Jumwa withdrawn. Case against former Kenya Power MD Ben Chumo, Ken Tarus and 10 others, withdrawn. The charge of rape against Mithika Linturi, withdrawn.

Businesswoman Mary Wambui had a Ksh.2.2 billion tax case against her withdrawn. Another case in which she was charged with illegal possession of firearms and ammunition also withdrawn.

Former NHIF boss Geoffrey Wwangi alongside 13 others also had charges against them withdrawn in a Ksh.1.1 billion shilling graft case. In November last year, the DPP made a decision to withdraw corruption charges against former Samburu Governor Moses Lenolkulal. But he later had a change of heart and rescinded this decision, opting to allow the case to go on to its conclusion in the courts.

But it is not just withdrawal that is affecting the office of the DPP. In December last year, the courts acquitted former Nairobi Governor Mike Sonko of corruption and money laundering charges during his time as county boss. The court also released his co-accused Anthony Otieno Ombok. The court cited a defective charge sheet, stating that the evidence did not meet the threshold needed to prosecute the accused.That is not all.

Joe Sang, the Kenya Pipeline Company Managing Director at the time, was acquitted of corruption charges related to the Ksh.1.9 billion Kisumu oil jetty project. He was acquitted for lack of evidence. Also acquitted were Gloria Khafafa, Vincent Korir, Nicholas Gitobu, Billy Aseka, and Samuel Odoyo. One last illustration before I make my point; businessman Humphrey Kariuki had his tax evasion charges quashed by the High Court in May.

Now, all of these point to something. Just what is going on at the office of the Director of Public Prosecutions? What is driving all these withdrawals of cases against high profile individuals? Let me address the political rumours around it. Let’s assume the position that the charges were politically motivated by the previous administration. Well, the Constitution anticipated this and protected the office of the DPP, stating; “The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.”

This clause in the law protects the holder of the office, guarantees him or her security of tenure that allows them the independence to decide which cases to prosecute and which ones not to. So if the cases in question were politically motivated, then did the DPP violate the Constitution? And should he then be removed from that position in line with Article 158 of the Constitution?

Let’s take the other scenario that perhaps this was a change of heart. In fact, the law does allow the DPP to withdraw cases. Article 157 (8) of the Constitution gives power to the DPP to discontinue a prosecution with the permission of the court. It provides that the DPP can "discontinue at any stage before judgment is delivered and criminal proceedings" instituted by his office.

Well and good. But what does it say about the judgement of the holder of that office to institute proceedings, spend taxpayers money through a judicial process only to realise along the way that they do not have enough evidence to sustain the charge? Does that not point to a competence issue? By the way, incompetence is one of the grounds laid out in Article 158 for the removal of the DPP.

If indeed these cases, either did not pass muster or were politically motivated, then imagine the damage done to the reputation of those accused. Interestingly though, the withdrawal of cases seemingly favours the high and mighty in this country. What of the ordinary citizens like you and i? Is it possible that they also suffer the same fate? If so, who will speak for them?

Remember former Chief Justice David Maraga defending the Judiciary when it was accused of dragging its feet in resolving cases? He turned the heat on the prosecution citing instances where the charge sheets had too many counts, a long list of witnesses and lawyers representing parties making it impossible for judicial officers to expedite the hearing and conclusion of such cases?

Folks, there has clearly been quite a number of issues raised about how the office of the DPP has conducted itself. Whatever we are told as Kenyans, these are the facts. As they stand. Every case that is being withdrawn today, was first presented and even prosecuted by the same DPP. We do not have any reports, images or indeed videos of gun to head moments.

We are owed a detailed explanation of these cases. What happened? Are these the only cases that were defective? How many other people are sitting in remand with defective charge sheets in court? Is the DPP able to make independent decisions about who to charge or is he swayed by political pressure? Was there political pressure applied to charge certain individuals in the previous regime? Is there political pressure to drop them now?

The drafters of the Constitution took their time to put in protections for this office to prevent all the back and forth we have seen from this office in the last few months. The mandate of the office holder is very clear. The method of appointment, resignation or removal is also clear.

And that is my Take!