In all instances of criminal litigation, the duty of gathering and presenting in court water-tight evidence to nail those accused of committing crimes lies with the police and prosecutor.
Logically, the expectation should be that before any charges are preferred against anyone, these two agencies that are financed by tax money will have gathered specific and incontrovertible evidence.
It is therefore baffling to see a growing number of high profile cases collapsing in courts due lack of evidence or bungling of the same by prosecutors.
This is exactly what happened on Tuesday when the courts threw out a fraud case against former National Hospital Insurance Fund (NHIF) managing director Richard Kerich alongside Fadhili Marwa and David Chingi, adding to a bulging list of failed prosecutions.
In the NHIF case, Senior Principal Magistrate Martha Mutuku said the prosecution had failed to present an audit report proving the loss of money at the fund. Such gaffes leave the public with only two conclusions. That there is gross ineptitude in the ranks of prosecutors or there is criminal collusion with the accused to take action or fail to act so that a case may collapse. This ultimately requires setting up a legal framework that holds prosecutors accountable for all cases they file in court – the goal being to prevent abuse of their critical role in the justice system.
The Office of the Director of Public Prosecution (ODPP) should assess the performance of officers to ensure that only proficient ones remain in service. Those that bungle cases in a blatant manner as happened in the NHIF case must not only be relieved of their duties but also face prosecution. In civilised systems, prosecutors are ranked highly in terms of aptitude and officers selected to perform this role must prove their mettle.
This is because the prosecutor’s work goes beyond just preferring charges against suspects in court to convincing a judge that a suspect is guilty as charged. This requires vigilance or the law and processes.