By Yash Ghai

The termination of the trial of Maina Njenga on the nolle prosequi of the Attorney General raises fundamental questions about justice. Effectively, it amounts to the Executive, not the courts, determining the course of justice.

The AG’s decision casts serious doubts on the commitment of the Government to the rule of law and constitutional reform. It also comes at an awkward moment when President Kibaki pays so much lip service to truth and justice.

No one is likely to be persuaded by the explanation of the Director of Prosecutions that the AG has realised that there was insufficient evidence against the accused.

If true, it shows appalling ineptitude on the part of Amos Wako, who controls the nation’s prosecution process, and the DPP that the trial of such political significance should have been allowed to proceed to this point, without a proper examination of the evidence, to say nothing of the injustice to Njenga and his co-accused.

The most credible story, as defence counsel have said, is that the Government was terrified by Njenga’s threat to disclose names of his highly placed Mungiki collaborators. And it is therefore likely the termination was not effectively the decision of the AG but was made elsewhere and he merely lent his authority.

It is necessary to explain the status and prosecutorial powers of the AG. The Constitution has no more anomalous office than the AG. Frequent calls for reform have been ignored, perhaps because the anomalies suit both the AG and the Executive. The AG is appointed by the President in his absolute discretion, but cannot be removed except through a complicated procedure. He is the chief legal advisor to the Government, and is given security of tenure so that he can discharge his functions independently, in accordance with the law.

But he customarily sits in the Cabinet and is assumed to be a minister, and inevitably becomes involved in policy and administrative decisions at the highest level. He is also an ex-officio member of Parliament, and is customarily appointed to sit on commissions meant to be independent, as on constitution and police reforms. Oddly, he is also a civil servant. A skilful person like Wako transcends the separation of powers with great ease.

The Constitution vests the ultimate powers of prosecution in the AG and states clearly that he or she is not "subject to the direction or control of any other person or authority". He can stop a prosecution at any stage of the process.

The Constitution does not specify the reasons for which a prosecution can be stopped, a system we borrowed from Britain. This unlimited and unaccountable power assumes a person who can be both a part of government and yet defy the head of government, in his undying fidelity to the law. Such a person belongs to a species not yet spotted in Kenya.

In its homeland, the anomalies of this office have been questioned, particularly as manifested during the governments of Margaret Thatcher and Tony Blair. Inevitably decisions on prosecution as well as stopping prosecution on "politically" sensitive matters are taken at high levels of government, and only a lawyer of exceptional integrity can withstand pressures placed on them.

Under Chief Justice CB Madan, a start was made by the Judiciary to prevent the abuse of the power to stop a prosecution. In the Nation Media Group case against Mrs Lucy Kibaki, the DPP acknowledged that the power can be abused and that restrictions can legitimately be placed on it by the court.

He he conceded that "those powers were not absolute and that they must be exercised judiciously, fairly and reasonably and that under Section 123(8) of the Constitution, the High Court had oversight powers over the exercise of those powers". The Kenyan courts have occasionally exercised this oversight, but not often enough – perhaps given the political nature of prosecutions where the issue is likely to arise, as indeed in the Lucy Kibaki case.

The Constitution of Kenya Review Commission (CKRC) and Bomas faced the problem squarely. The Bomas approach on prosecution power is worth studying as the Committee of Experts is about to finalise its draft. Recognising the political role of the AG, Bomas took away the powers of prosecution from the AG and vested them in an independent DPP.

The DPP was given the power to terminate proceedings, but in a more restrictive way than at present. Particularly, a prosecution could not be stopped without the permission of the court.

The assumption was that, with the genuinely independent Judiciary that Bomas hoped to establish, the courts would develop appropriate criteria and ensure justice according to the law, not the convenience of the Executive, resuming the efforts of CJ Madan, one of the few independent CJs in Kenya. The Bomas approach recognised the importance of both the separation of powers and the rule of law.

The present rules about prosecutions, and in particular the decision about the Njenga case have several important implications, especially in our present predicament. As administered by the AG and the courts, they become the means whereby the Executive grants immunity to its friends — a power it does not enjoy under the law. The Judiciary submits itself to the dictates of the Executive.

At the same time, as the AG was stopping the prosecution, he was directing a senior State official as to which court order the official should obey (in the case of the Vice-Chancellor of Kenyatta University), thus placing himself above the courts.

By the impunity given in the present case, the State fails in its most critical responsibility, public security as well as the security of individuals, through the maintenance of law and order.

It further erodes confidence in public institutions. And what is more, it makes nonsense of the protestations of the Government about its commitment to constitutional reform and the end of impunity.