Is Noordin Haji under political pressure to withdraw graft cases?

In Dr Chumo's case, the DPP has several times directed the investigating officer to serve the accused persons with his witness statement but this directive too was never complied with. Despite having been charged in 2018, Dr Chumo and his co-accused have not been furnished with the key evidentiary material that the prosecution counsel hoped to rely on at the trial. The trial court agreed with the DPP injustice and prejudice had been occasioned against the accused persons and allowed the DPP to terminate the charges under Section 87(a) of the Criminal Procedure Code.

Yet it is Mr Gachagua's case that fully highlights serious ethical concerns relating to the manner in which DCI conducts investigations into alleged corruption offences. In a shocking admission of coercion, the lead investigator in the case, Kuria Obadiah swore an affidavit dated October 15 in which he admits that investigation into alleged offences against Gachagua was launched with a pre-determined outcome.

According to Obadiah, Kinoti issued strict and fixed timelines to his team to come up with findings that would enable recommendation to charge Gachagua. In the circumstances, Obadiah admits that his team was unable to conduct thorough investigations into the allegations of corruption against the deputy president and his co-accused persons.

It is the damning revelation of how investigating officers were pressured by the former DCI boss to hastily craft corruption cases, and the subsequent decision to recant and recall the bulk of the evidence in the corruption cases that accounts for the withdrawal of the cases.

Vindicated

The affidavits sworn by investigating officers seeking leave of court to withdraw the cases have finally vindicated Haji. Over the past four years, the DPP and Kinoti were caught up in ugly inter-agency spats. The fights were highlighted in the media, and ultimately found their way in courts.

At the centre of these wrangles, was the accusation by the former DCI boss that the DPP was frustrating the investigative agency's work by routinely returning investigation files forwarded to him for prosecution ostensibly for further investigations.

The DPP, on the other hand, insisted that a review of some of the files forwarded for prosecution showed key grounds that ought to have been covered to enable the cases to survive in court. He noted that certain issues were not sufficiently addressed and directed that further investigations be conducted.

Kinoti climbed a notch higher and demanded that investigating officers be permitted to register criminal charges in court as a way of dealing with the alleged frustration by the DPP. The High Court had an occasion to settle this dispute when Justice George Odunga pronounced himself on the matter in Petition No.19 of 2020, Geoffrey Sang v Director Public Prosecutions & 4 Others [2020] eKLR. Justice Odunga, J. rejected the argument that the DCI can initiate prosecution of corruption cases, and advised the DCI to "stick to its lane" and avoid the temptation to extend its mandate through craft and innovation.

Former DCI boss George Kinoti. [Boniface Okendo, Standard]

In yet another case, Justice Mrima, J. in Nairobi Petition No. E495 of 2021, Geoffrey Kaaria Kinoti & Others v The Chief Magistrates' Court & Others [2020] eKLR restrained DCI from drafting charge sheets. Although the Court of Appeal stayed the implementation of the judgment pending the determination of the Appeal, this judgment emphasized that the DCI's core mandate is to investigate alleged criminal offences and recommend prosecution. Article 157(6) of the Constitution expressly states that the power to institute and undertake criminal charges is the exclusive mandate of the DPP. This power is not shareable.

Power to review charges

The decision to charge is the exclusive function of the DPP. However, Article 157(11) of the Constitution enjoins the DPP to ensure that in exercising the decision to charge, the DPP takes into consideration the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. Similarly, Article 157(6)(c) of the Constitution clothes the DPP with the power to discontinue and terminate any criminal proceedings at any stage before judgment is delivered.

These provisions of law provide the constitutional justification underpinning the power to review criminal and corruption charges and terminate them in the public interest and to avoid abuse of the legal process. Further, the DPP has enacted Guidelines on the Decision to Charge, 2019 to professionalize its operations. At the centre of the Decision to Charge Guidelines is the twin requirement that every case must be subjected to the twin test of evidentiary test, and the public interest test. The purpose of evaluating the evidence to ensure that the DPP does not parade accused persons to answer to dead-end cases.

It is instructive to note that Article 157(6)(c) of the Constitution anticipates that evaluation of evidence be a continuous process throughout the course of the trial.

Indeed, the DPP has exercised this constitutional mandate and has previously reviewed and terminated several corruption cases for lack of sufficient evidence to sustain the cases. Some of these cases have not made newspaper headlines simply because the accused persons are not political figureheads.

It is therefore unfair to cast aspersions on the person of the DPP or his office, or to speculate whether the termination of corruption or other criminal cases is as a result of political pressure when the law clearly provides the framework for review and withdrawal of cases.