The Office of the Director of Public Prosecution has been in the spotlight lately over the withdrawal of corruption cases facing President William Ruto's allies.
Its place and role in the justice system is worth looking into.
The ODPP is an office established to undertake criminal proceedings before any court, other than the court martial, in respect of any crime alleged to have been committed.
The office may take over criminal proceedings undertaken by another person or authority with their permission. At the helm of the office is the Director of Public Prosecution, but the office has officers (state prosecutors) within every court of law in the country.
Initially, prosecutorial powers were vested in the Office of the Attorney General. This saw an abuse of the court process, where there would be political prosecution of those who were not ‘politically correct’, whereas those who were in good terms with the powers that be could commit misdeeds and go unpunished. The rationale behind its establishment as an independent office was to end this tyranny. Whether it is, indeed, independent on the ground and not just in the books remains debatable.
Take, for instance, the recent decision by the DPP Noordin Haji to drop charges levelled against certain persons facing criminal charges, which has caused an uproar. For many, this has been seen as a political move, given that a number of those who were charged are allied to the government of the day, with some even being appointed for state jobs. The question many ask is why the sudden dropping of charges happened all at once and at this time.
This is not the first time the ODPP has been brought under fire regarding its mandate. Several cases that attracted public attention have been withdrawn, not to mention the infamous “Kemsa Heist”, where scoundrels stole funds meant to fight the Covid pandemic. To date, not a single one has been prosecuted.
When it comes to dropping charges, no express procedure is provided, neither are the grounds for the same. The law simply stipulates that the DPP may discontinue criminal proceedings at any stage before judgment is delivered. However, this may not happen without the permission of the court.
That notwithstanding, any person who makes an administrative decision has to provide reasons for the same. As the clamour from some quarters has demanded, the ODPP ought to provide reasons for the mass withdrawal of graft cases. Common reasons for dropping cases include lack of sufficient evidence, withdrawal of evidence by witnesses or where the accused party enters a plea deal with the prosecution.
As it stands, the ODPP is within the ambits of the law in withdrawing the cases facing those accused persons. Whether this was the way to go is a different story altogether.
Post-2010, many Kenyans hoped the reforms that established the ODPP would see many high profile cases prosecuted. This has since remained a mirage, and that move is yet another blow to this aspiration. Not to condemn the accused persons — they are presumed innocent unless and until proven otherwise — but if they were suspected, I’d like to believe there were good reasons why. Which makes it disappointing when they do not go to trial for them to be either acquitted or convicted.
What remains clear is that much still needs to be done in seeing to it that the ODPP can carry out its mandate without fear, favour or intimidation.