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The withdrawal of the Sh63 billion graft case against former Treasury Cabinet Secretary Henry Rotich and his co-accused persons has once again exposed the Office of the Director of Public Prosecutions (ODPP) with the courts now proposing enactment of a law to rein it in.

 In the recent past, the ODD has received tongue-lashing from the bench where judges and magistrates have been of the view that “the discretionary power vested in the ODPP is not an open cheque and such discretion must be exercised within the four corners of the Constitution.”

 On Thursday, the court, like in previous other five judgments, blamed the ODPP for the collapse of the case against Rotich and eight others, casting aspersions on the decisions made by the country’s prosecutor.

The Anti-Corruption Court in Nairobi consequently asked the National Council on the Administration of Justice (NCAJ), the Attorney General and Parliament to come up with a law or policy that would check the emerging trend by the ODPP to commence proceedings against suspects with no intention of pursuing them to their logical conclusions.

Former DPP Noordin Haji and the current DPP Renson Ingonga have been on the spot in the recent past over their decisions to withdraw high profile cases and acquittals based on lack of sufficient evidence.

The Anti-Corruption Court has in the recent past called for introduction of amendments in the country’s justice sector following the conduct of the DPP to abandon cases against suspects before they have been concluded due to lack of sufficient evidence.

The proposed amendments or policy by the graft court would also check the veracity of the prosecutor’s decision to charge suspects.

Further, the suggested policy is expected to ensure prosecutors and investigators are personally held liable for any civil liability that may arise from the withdrawal of the cases against suspects.

Collapsed cases

The ODPP has been on the receiving end over the collapse of cases involving Deputy President Rigathi Gachagua, former Kenya Power MD Ben Chumo and 10 others, the Sh19 million graft case against Gender CS Aisha Jumwa, tax evasion case against businesswoman Mary Wambui, the Sh357 million graft case against former Nairobi governor Mike Sonko, Lake Basin Development Authority (LBDA) and the Sh791 million and Sh851 million National Youth Service graft cases.

In December last year, former Kenya Pipeline managing director Joe Sang was acquitted in the Sh1.9 billion Kisumu Oil Jetty project graft case under Section 210 of the criminal procedure code by Magistrate Wakumile, for lack of sufficient evidence to support the case.

There have been instances where state prosecutors have either failed to turn up during the hearing of cases or abandon the proceedings while in the middle leading to their collapse. A clear example was when a prosecutor walked out of Sonko’s Sh 357 million case as the magistrate was hearing it.

The court admonished the ODPP for bungling the multi-billion Arror and Kimwarer Dams case against Rotich and eight others as a result of reckless dereliction of duty by the prosecution, terming it as an abuse of the court process.

No success intentions

In acquitting the nine, the magistrate Eunice Nyutu called on the need to check what she described as the unfortunate habit of the ODPP for commencing proceedings with no intention of prosecuting them to their logical conclusion.

 At the time when the case was presented in court, Noordin Haji was the Director of Public Prosecutions (DPP). He is now the Director-General of the National Intelligence Service and was succeeded by Ingonga in September. 

“Such conduct is affront to the criminal justice system and a waste of judicial precious time. It is an insult to the dignity of the court and all the stakeholders here involved in the criminal justice system. Such officers from the ODPP should be personally held liable and for any compensation damages,” she added.

“I hereby order that this ruling be placed before the Attorney General and the National Council for Administrative Justice with a view of sparking conversation on this issue,” she said.

Rotich and his co-accused persons were acquitted after the magistrate blamed the prosecution for intentionally bungling the case by lining up 49 witnesses but only leading eight to testify.

The magistrate noted that 41 witnesses including former Agriculture CS Peter Munya who was the whistle-blower of the multi-billion scandal during retired president Uhuru Kenyatta’s regime were presented in court by the Directorate of Criminal of Criminal but the prosecution failed to compel them to testify in the case.

Nyutu condemned the prosecutor’s conduct where they would appear in court, call a witness to the stand, and have the witness take oath only to inform the court that they do not have questions for the witness. The witness is then discharged and the next one is called to the stand.

Senior counsel Kioko Kilukumi, who was defending Rotich in the case told the court that the prosecution had intentionally and deliberately abandoned its case.

Magistrate Nyutu wondered why at the beginning of the case the prosecutor led by Taib Ali Taib  had informed the court that they had watertight evidence to show that the accused persons did not only steal Sh63 billion in scandal but more than Sh80 billion were indeed stolen from public coffers.

“I do not understand how the prosecution’s tone to avail the said evidence changed immediately after the eighth witness testified and approached the court saying they had instructions to withdraw the entire case against the accused persons. It is my view the Prosecution acted maliciously because at the time of preferring the charges,  it is believed they had sufficient evidence to prosecute their case to conclusion,” Nyutu said.

“All the accused persons in this case are hereby acquitted under section 210 of the Criminal Procedure Code due to lack of evidence as a result of the reckless dereliction of duty by the prosecution,” the court ruled.

The former CS was acquitted alongside former Kerio Valley Development Authority (KVDA) boss David Kimosop, former Chief Economist Kennedy Nyakundi, Jackson Kinyanjui and Titus Muriithi.

Civil liability

Nyutu’s decision comes barely a month after High Court judge Nixon Sifuna also made similar recommendations to have prosecutors or investigative agencies hold any civil liability that may arise from the withdrawal of cases.

Sifuna made the directive after Assets Recovery Agency (ARA) sought to withdraw a Sh6 billion suit against Nigerian start-up Flutterwave which was being probed over allegations of card fraud and money laundering.

 The judge also ruled that it was illegal for investigative agencies including Ethics and Anti-Corruption Commission (EACC) to charge suspects before completing investigations.

Justice Sifuna said the practice of first charging people in court and then commencing or continuing with investigations is an affront to the right to a fair trial.

“It is only after the findings of completed investigations that a person should be charged,” ruled Sifuna in the case filed by the directors of Edermann Properties Limited, Zhang Jing and Zeyun Yang facing graft charges over multi-billion Lake Basin scandal.

The ODPP was also on the receiving end on two different occasions from Chief Magistrate Wendy Michemi when she acquitted former NYS Director-General Nelson Githinji and former Devolution  Principal Secretary Peter Mangiti and later former, Mangiti’s successor Lilian Omollo.

In November last year, the court while terminating, the trial of Gachagua over the alleged fraud of Sh 7.3 billion also recommended for possible law amendments to establish an office in the Judiciary to check on decisions by the  prosecution.

Available evidence

Senior Principal Magistrate Victor Wakumile sought for the introduction of another office in the Judiciary that would be charged with the responsibility to scrutinize whether the evidence obtained by the police investigators is sufficient to secure a conviction in court.

Wakumile said the proposed office, to be known as “office of pre-trial judge” would be charged with the responsibility of perusing the police file, and scrutinizing the available evidence before any suspect is arraigned in court to answer the charges.

 “The intention is to bring to an end abuse of the criminal justice system by police investigators and prosecutors and reduce case backlogs,” he said.

The DPP withdrew the case against Gachagua citing insufficient evidence and frustrations by the DCI.

“In my view Parliament should consider passing the necessary legislation to establish an office of pre-trial judge. That office should subject activities of the DPP, DCI and any other investigative authority as relates to intended charges to scrutinize investigations, determine number of witnesses bonded based on the quality of testimony and set down the timelines of each case. When such issues are determined the decision should be binding and full disclosure before suspects are followed for plea taking and commencement of a trial,” Senior principal Magistrate Victor Wakumile said.

He also proposed the introduction of a personal prosecutorial and investigative liability policy to protect junior officers working with investigative agencies from acting on illegal orders from their bosses.

The magistrate suggested for the policy and law enactment after finding that the trial of Gachagua and his nine co-accused were an abuse of the court process as he questioned how the DPP approved the charges in anticipation that evidence would be available later when the trial commenced.

“These proceedings are a testimony to the fact that the DPP acted contrary to Article 157 of the constitution in its entirety. One cannot prefer charges in anticipation of evidence since plea-taking is not a simple thing or a simple event. It leads to denial of liberty, public ridicule, many at times stress which might even lead to unnecessary loss of life. A lot of people have divorced because they took a plea,” Wakumile said.

He observed the DCI and DPP played a blame game in the prosecution of Gachagua.

“ Investigators and prosecution counsel have played a blame game in this matter. I have heard them and what they are simply saying in different tones and words, they were instructed to proceed and operate within what(evidence) was at hand,” the Magistrate said.

“Definitely administrative actions would have followed if they refused to comply. However with the introduction of personal prosecutorial and investigative liability such officers will be able to stand firm, unshaken and resist the devil at all times,” he further stated.