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Aisha Jumwa Ksh.19 million graft case withdrawn.
Murder charge against Aisha Jumwa withdrawn.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Ben Chumo, Ken Tarus and 10 others, withdrawn.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Mithika Linturi, withdrawn.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billion tax case against her withdrawn.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with illegal possession of firearms and ammunition also withdrawn.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others also had charges against them withdrawn in a Ksh.1.1 billion shilling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change of heart and rescinded this decision, opting to allow the case to go on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
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
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
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
And that is my Take!
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