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Slaying corruption dragon requires an independent, transparent ODPP

 Director of Public Prosecutions Renson Mulele Ingonga during his vetting by the National Assembly's Justice and Legal Affairs committee at Parliament buildings, Nairobi on August 31, 2023. [Elvis Ogina, Standard]

The Arror and Kimwarer Sh63 billion corruption case has been causing a stir in the halls of justice lately. From the opinions of the trial magistrate at the Anti-Corruption Court and Justice Nixon Sifuna, who handled a request by the prosecution for the trial magistrate to recuse herself, the court has formed the opinion that the ODPP is actively sabotaging the case, much to the dismay of the anti-corruption advocates. 

The controversy took hold after several state witnesses were bonded and appeared in court for their testimony, only for the prosecution to declare that they had no questions for them oddly. So far, 24 witnesses have appeared in court without testifying despite strong reprimands from the magistrate, who seemed perturbed by the emerging pattern.

On some occasions, the magistrate issued arrest warrants for witnesses' failure to appear before the court to testify for what the court termed "the unverified application by the prosecution over the witness's unavailability". During the trial, the state unsuccessfully sought a two-week adjournment so Renson Ingonga, the newly appointed DPP, could weigh in. 

In its application, the prosecution claims that the magistrate should recuse herself for bias because she declined to allow adjournments while forcing the prosecution to proceed with cases and setting short timelines.

The High Court found that the application was premeditated and made in bad faith and intended to intimidate, arm-twist, blackmail and frustrate the trial court and magistrate. Justice Sifuna observed that anti-corruption courts should be steadfast because of the relentless way in which corruption fights back.

The scathing ruling further opined that the prosecution had abandoned its public prosecutorial role and began fighting for the defence while training its guns on the courts. Further, Justice Sifuna ruled that the prosecution had left their corner and joined the defence, allowing the defence to sit back, fold their hand and watch the ensuing drama.

Due to the high standard of proof in criminal trials (beyond a shadow of a doubt), prosecution witnesses play a critical role. By sworn testimony, testimony, and evidence that can include eyewitness accounts, physical evidence, documents, or expert opinions, they support the prosecution's case while rebutting the defence's case. A state witness provides a first-hand account of the alleged crime.

It is common for witnesses to offer different perspectives on the same event, allowing the court to triangulate the facts. A case can be strengthened by multiple witnesses providing consistent testimony. When a high-profile case is being prosecuted, why would a prosecutor decide not to question 24 witnesses?

Wouldn't it be better if the prosecution filed a nolle prosequi rather than drag witnesses to court and fail to question them? The DPP's nolle prosequi powers are not absolute and unfettered today.

In the previous constitution, the Attorney General had unfettered powers to withdraw any case through nolle prosequi at any time. However, this power was gravely abused for political expedience mainly because the AG was a presidential appointee.

The 2010 Constitution gave the now independent DPP powers to take over and discontinue criminal proceedings with limited discretion under the rider that the office considers the public interest, administrative law interests, and the need to prevent and avoid judicial process discrimination. Also, a nolle prosequi must be done with the court's permission, meaning that the DPP had to justify the decision. 

Justice should not only be done but be seen to be done. Slaying the corruption dragon requires an independent, transparent, and accountable ODPP.

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