- An examination of some of the DPP’s decisions to withdraw begs the question of whether there is arbitrariness and abuse of prosecutorial power.
- In ACC No. 20 of 2015; Republic vs Nicholas Weke and 8 others, the accused persons who included the CEO and Company Secretary of Geothermal Development Corporation, were charged with offences in relation to the award of a tender for rig-move services for Sh42.7 million per rig move in 2012.
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The article titled “ODPP's constitutional mandate to review, withdraw matters” published in The Star Newspaper on 16th August 2024, by one Duncan Ondimu, Senior Principal Prosecution Counsel, cannot pass unchallenged.
In the article, the writer dismissed EACC as an entity that is barely recognised in the Constitution and as such should not be taken seriously.
The Officer failed to appreciate the critical mandate of EACC in the enforcement of Chapter Six of the Constitution, as well as other laws.
In the recent past, the country has witnessed the withdrawal of a significant number of high-profile corruption and economic crime cases by the Director of Public Prosecution, a move that has been unprecedented since the promulgation of the Constitution of Kenya 2010.
Whereas Article 157(8) confers the DPP's power to discontinue cases with the consent of the Court, the same is not absolute. Article 157(11) provides that the DPP must exercise its powers with due regard to, among others, the public interest.
Article 73, on the other hand, provides that the exercise of State power is a public trust to be exercised in a manner that is, among others, consistent with the purposes and objects of the Constitution and promotes public confidence in the integrity of the office and identifies one of the guiding principles of leadership and integrity as accountability to the public for decisions and actions.
An examination of some of the DPP’s decisions to withdraw begs the question of whether there is arbitrariness and abuse of prosecutorial power.
In ACC No. 20 of 2015; Republic vs Nicholas Weke and 8 others, the accused persons who included the CEO and Company Secretary of Geothermal Development Corporation, were charged with offences in relation to the award of a tender for rig-move services for Sh42.7 million per rig move in 2012.
The same services had been awarded to the same provider for Sh19.5 million per rig-move the previous financial year.
The accused persons challenged their prosecution in the High Court arguing that since there was no market survey, it could not be said that the award of the tender at the said Sh42.7 million was above the prevailing market price.
The DPP and EACC unsuccessfully opposed the application in the High Court. Consequently, the case against some of the accused persons inclusive of the CEO and the Company Secretary was withdrawn.
The DPP and EACC filed separate appeals and succeeded at the Court of Appeal. The accused persons appealed to the Supreme Court being Supreme Court Petition No. 39 and 40 of 2019 (consolidated); Praxidis Namoni Saisi and 7 others vs DPP 2 others and the Petition was dismissed. Significantly, the Supreme Court in dismissing the appeal directed the criminal case ‘to proceed and be heard on priority’.
In a surprising turn of events, the DPP in February 2024, sought to withdraw the case on the very same grounds advanced by the accused persons and rejected by the Court of Appeal and Supreme Court terming them as triable issues.
On May 22, 2024, Thomas Nzyoki, Chief Magistrate, dismissed the application for withdrawal.
To date, the DPP has refused to comply with the Supreme Court order to reinstate the charges against all the accused persons.
Given this long litigation history, the question to pose is; other than the holder of the office of the DPP, what changed to necessitate withdrawal of charges on the very same grounds that the Office has been opposed to for close to a decade?
There are several other high-profile cases in which the DPP has withdrawn cases or withdrawn his consent to charge purportedly upon review at the request of the accused persons.
Among them is the case against Wycliffe Oparanya and Malindi Acc. No. E001 of 2023; Republic vs Najib Balala and 16 others. In the Malindi case, the charges included overpayment to the consultants involved in the construction of Utalii College amounting to Sh1.48 billion.
The application to withdraw the case was made on the mention date and without prior notice to EACC as the investigating body.
The fight against corruption entails, among others, the investigation and rigorous prosecution of those alleged to have occasioned or siphoned huge amounts of public funds.
It is in light of this need that I posit that the capricious and unaccountable exercise of the power to withdraw cases by the DPP poses an existential threat to the fight against mega corruption and those involving high-profile personalities. It also constitutes an egregious violation of the Constitution.
The writer is an Advocate of the High Court of Kenya and comments on governance issues