Why courts handed DPP upper hand in graft cases

The Director of Public Prosecutions (DPP) Noordin Haji has in the recent past few weeks made significant wins in the prosecution of graft suspects as judges upheld his prosecutorial role.

In three decisions rendered by two different judges, the courts maintained that when it comes to prosecutorial powers, the DPP has the last word.

Further, they upheld that as the law is now, the DPP cannot be questioned or challenged on the merits or sufficiency of the evidence at the pre-trail stage, until full hearing of the case and cross-examination is duly carried out, only then can determination be made whether there is a case to answer.

In the first case, Justice George Odunga, sitting in Machakos quashed the intended prosecution of the acting CEO of the National Water Harvesting and Storage Authority, Mr Geoffrey Sang.

The judge said the charges as recommended by the Directorate of Criminal Investigations (DCI) were illegal because the DCI has no such powers.

Mr Sang had challenged plans to charge him with abuse of office, arguing it was maliciously instigated.

And after hearing the case, justice Odunga said the DCI must keep to his lawful lane and resist the temptation to overlap even where he believes that those who are constitutionally empowered to take action are dragging their feet.

“In other words, no public prosecution may be undertaken by or under the authority of either the Inspector General of Police or the Director of Criminal Investigations without the consent of the Director of Public Prosecutions,” the judge said.

In Nairobi, Justice Mumbi Ngugi quashed a ruling by Chief magistrate Douglas Ogoti, who had ordered the DPP to be disclosing evidence, count by count in all graft cases.

Mr Ogoti had made the directive in the trial of Mr Peter Abok and 35 others, facing graft charges over the construction of Lake Basin Development Authority (LBDA) mall in Kisumu County.

But the judge overturned the decision saying the directive will amount to demanding too much from the prosecution and by extension, controlling the DPP’s prosecutorial role, even before the hearing process commences.

She said the plain reading of Article 50(2)(B) and (j) of the Constitution, the prosecution has a legal binding obligation to supply the defence with all material evidence in its possession, which it intends to rely on. This is to enable the defence to prepare adequately. The rationale, she said, is to avoid trial by ambush.

According to the judge, the charge sheet has sufficient information, with specific offence and particulars giving reasonable information as to the nature of the offence.

She added that the supply of evidence the prosecution intends to rely on is not a stop-shop kind of adventure, but an ongoing process.

“Prosecution of a criminal case is like a web. What may not directly touch on one accused can indirectly or circumstantially connect or touch on another accused person. To restrict production or supply of information or evidence according to each count against individual accused persons in respect of each count will go against the spirit of full disclosure of evidence to the defence contrary to what is envisaged under Article 50(2) of the Constitution,” the judge said.

Justice Ngugi added that without a clear legal framework governing committal proceedings or pre-trial conference as is the case of International Court of Justice, the court cannot craft one from nowhere.

“Once a charge has properly been framed, registered and admitted in court, the prosecution is duty bound to disclose all the evidence it intends to rely on without segregating on which evidence is applicable to which accused or to which count.

“In my humble opinion, there are more benefits when having full disclosure of evidence than restricting it to individual accused persons,” she said.

Mr Ogoti had ruled in September last year, that anti-corruption matters are complex, hence requiring a different approach in handling them from the inception.

The magistrate said the lack of express provisions regarding disclosure, a maximum number of charges to be preferred and the extent of disclosure posed a challenge in terms of delayed prosecution and determination of the matters.

He said this had also contributed to apathy in hearing anti-corruption cases, posed a challenge in presentation of evidence by the prosecution and analysis of evidence by the trial court.

He then directed that there should be disclosure in every prosecution file, which should to be done count by count. He further said all disclosures should be captured in an inventory to be signed by the prosecution and defence team.

But the DPP challenged the decision and asked the High Court to determine the legality of Mr Ogoti’s orders.

The DPP through James Kihara argued that the disclosure of evidence count by count was contrary to the constitutional duty of requiring reasonable access to all evidence by the accused persons. He said there was no legal basis for the order and there was no indication that the prosecution had failed on disclosure of evidence.

The defence team defended the decision stating that each accused person is charged as an individual, hence entitled to specific disclosure on the evidence concerning the relevant count.

The court heard that the prosecution should be providing a clear and comprehensive overview of all incriminating evidence and how each item of evidence relates to the charges against the accused person.

The defence team also said that the orders of the court were intended to achieve greater justice and that Mr Ogoti properly exercised his discretion, hence the High Court should not interfere with that discretion.

In the ruling, justice Ngugi said a court of law is not a mechanical machine to strictly operate within strict and fixed parameters. Each court, she said, has a case management strategy executed within the confines of law to ensure optimal results and attainment of the overriding objective that criminal cases be dealt with justly and expeditiously whilst exercising any power given under the law.

The judge, therefore said she saw nothing wrong with Mr Ogoti making directions on his own motion.

She, however said the Attorney- General should prepare amendments to the Evidence Act and Criminal Procedure Code.

The amendments, she pointed out, should provide clear legal framework on committal proceedings or pre-trial conference where the evidence disclosed in advance would be challenged at a preliminary stage to determine whether an accused person should be committed to stand trial on the basis of the evidence available.

She said a proper legal framework will save more precious judicial time, cost and avoid charges prepared for the sake of settling personal scores or speculative charges, which are eventually withdrawn for lack of evidence, witnesses or they simply collapse from the word go.

In yet another case, justice Ngugi overturned a decision by Mr Ogoti, who directed investigating agencies to furnish suspects with documentary and electronic evidence before they plead to the charges.

Mr Ogoti had ruled that the prosecution should disclose all the evidence it intends to use before a suspect pleads to the charge.

The magistrate further said the DPP and EACC should file an inventory capturing every document that it had supplied to the defence.

He made a ruling in a case in which Nairobi governor Mike Sonko is facing corruption charges together with 12 other persons and five companies.

But Justice Ngugi overturned the decision saying there is no provision in criminal procedure code (CPC) that empowers the court to reject a charge sheet on the basis that it is not accompanied by an inventory of the evidence, which the prosecution intends to rely on.

“The court seized of a matter is granted powers in relation to the conduct of a matter before it. I have not, however, been able to find any provision in the CPC that vests general power in the magistrate’s court to make directions and orders that apply to other matters not before it, or that generally apply as is in this case, to anti-corruption matters filed before the anti-corruption magistrates courts,” the judge said.

According to justice Ngugi, powers to issue such guidelines are vested in the Chief Justice. “It appears to me therefore, to be quite an overreach for the court in the ruling impugned in the matter to purport to issue directions applicable to all anti-corruption matters filed before the magistrates’ courts,” she added.

The judge made the ruling in an appeal filed by Mr Haji after Mr Ogoti directed him to ensure that disclosure in each prosecution file is done before suspects plead to the charge. In May, the magistrate directed the DPP and EACC to disclose all evidence it intends to rely on prior to registration of plea in the anti-corruption court.

But the DPP argued that the magistrate adjudicated on a matter that was not before him and had stopped being an impartial arbiter and descended into the arena of the parties.

Supporting the appeal, EACC said the magistrate had no powers to issue generic directions to be applied broadly in all matters.

The anti-graft body argued that placing a pre-condition of filing a duly executed inventory together with the charge sheet, interferes with powers of prosecution that is given to the DPP and with the constitutional power of prosecution which is vested in him.

EACC added that investigating agencies affected by the ruling were not given an opportunity to be heard.

The disclosure, the court heard, includes the identity of anyone being investigated and the release of evidence to persons who have not even taken plea is highly prejudicial to witnesses in corruption cases since the charge sheet is not a formal document unless and until it has been restored in court.

The DPP also said the directive is even more prejudicial to the prosecution in cases where there are witness under protection or whose evidence is crucial to the prosecution.

The suspects in the matter opposed the petition saying it is the duty of the court to ensure fairness and the DPP was seeking to micromanage the proceedings before the trial court.

Justice Ngugi allowed the appeal saying the directive was irregular because the magistrate purported to issue directions in matters that are outside the court’s jurisdiction.