You can hold anything against Haji, but he upped prosecution

Former Director of Public Prosecutions Noordin Haji. [File, Standard]

This week’s piece focuses on the ongoing vetting of former Director of Public Prosecutions Noordin Haji for the position of Director of the National Intelligence Service.

There is no doubt Mr Haji will be found fit to occupy that position. Firstly, Kenya Kwanza’s numbers guarantee him a “through pass”.

Secondly, even within Azimio, there appears little political appetite for opposition to his appointment.

But there are voices determined to ensure he goes to the next position tainted, starting with my friends at Transparency International who signified their opposition by inter alia withdrawing an excellence award they had given him in 2019.

It is not my intention to litigate Mr Haji’s detractors, I am sure they have their story, but to give another side of the story which incorporates the sometimes unappreciated complexity of the shark-infested waters that a public servant, independent or not, must wade through to be effective.

First, let us give credit where it is due. Other than on the matter of the seven withdrawn cases, Mr Haji’s tenure as the head of prosecutions has been stellar. For those of us who lived in the Chunga days to the start-and-stop days of Keriako Tobiko, the growth in stature and professionalism of this office has been outstanding.

Firstly, under Mr Haji’s tutelage, the office became a professional outfit with well-trained, passionate and incentivised prosecutors holding their own against the best in the private bar.

The days of outsourcing complex cases to external lawyers are largely forgotten. Secondly, prosecutions were defined by clear policy, including the much-publicised “decision to charge” guidelines.

The days of waiting for State House or other political honchos to determine who was to be charged were slowly becoming a distant history. Those of us who had occasion to observe the murky world of political witch-hunting know of many instances where prosecutions were “ordered” from outside the DPP’s office, and he said no; demanding only that he gets convincing evidence.

Many poorly framed “charge sheets” were returned to EACC or DCI for more thorough work. But for his insistence, many innocents who fell afoul of the system would be in court.

But public institutions being what they are, the prosecutor must ultimately depend on a host of other institutions, including the investigative branches and the police.

Where convincing evidence was produced to the DPP, he had no alternative but to commence prosecution, even where the politics of the matter were clear. And in many cases the politics were obvious.

Have you ever wondered how, in a country where we all know that sleaze has no political boundaries, only one side of the political divide had numerous prosecutions? That is not to say that those who commit offences should be let off because of who they support, but partisan prosecutions open credible doors to allegations of witch hunts.

In any event, come the change of government, the DPP indicated that in many of the cases involving politicians, those who were to give evidence wished to recant, indicating they had been coerced to render evidence to crucify certain political figures.

Faced with reluctant witnesses, for whatever reason, what is a professional DPP to do? Proceed with the cases anyway knowing they will collapse for lack of evidence? Pack the courts with hostile witnesses? Or move on to cases where the evidence still exists?

And by the way, this is not the first time the DPP has withdrawn cases where there was no evidence. Off the top of my head I remember Dr Kamau Thugge’s withdrawal and the one involving Jambo Pay officials.

It is also interesting that DPP Haji’s detractors refuse to acknowledge that some key cases, the most obvious being the ones involving former Migori governor Okoth Obado, former city governor Mike Sonko and former Kiambu governor Ferdinard Waititu are still being pursued, even though these three are card carrying supporters of Kenya Kwanza, which is in power.

So, as the DPP goes through the vetting and awaits his eventual appointment, one hopes that history will judge him kindly. Many of his detractors faced with the pressure he acted under, would have long succumbed. May justice and fairness reign.  

-The writer is an advocate of the High Court of Kenya

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