KAIKAI'S KICKER: DPP Withdrawals

Now just sample this; earlier Thursday, the Office of the Director of Public Prosecutions (ODPP) and the Ethics and Anti-Corruption Commission clashed in court over an application by the DPP to withdraw an ongoing corruption case at the Milimani Anti-Corruption Court in Nairobi.

 The corruption case is against a former managing director of the Geothermal Development Corporation (GDC)  and 7 other officials of the power generating public company. 

At the time of applying to withdraw the case, the same prosecution had called 25 out of 26 witnesses, and there was only one to go; the investigating officer from the EACC and the anti corruption commission filed an application opposing the DPP’s bid to withdraw the case.

Exactly a week ago today, the DPP’s bid to withdraw corruption charges against a former managing director of the Kenya  pipeline company was dismissed by the Milmani Anti-Corruption Court. 

The magistrate, Victor Wakhumile, told the DPP in his ruling that the power to withdraw cases was not absolute and that the same power to withdraw cases should be exercised with due regard to the public interest.

And public interest is where the line must be drawn. The spectacle of the now frequent clashes between the DPP and the EACC should be found not just untidy but potentially harmful to public interest. 

In the good order of anti-corruption cases, the DPP and the EACC would be expected to be on the same side, with the EACC providing the DPP with the necessary evidence to prosecute the case in court.  

But oddly, and twice this week, the prosecution (DPP)  and the investigators (EACC)  have faced opposite directions in what time will prove a shallow mystery.

Turning to the growing pattern of withdrawing corruption cases, Kenyans can only note with alarm that the office of the Director of Public Prosecutions, (ODDP), is on a roll.  

It is a frenzy that seems outright inexplicable and seemingly unstoppable.  Late January High Court Judge Justice Prof. Nixon Sifuna made a precedent-setting ruling on what he termed ‘a laundry manner of prosecution practice taking route in Kenya’ ; this in reference to the  rolling trend of withdrawal of cases by the DPP.

Justice Sifuna ruled that; "the prosecution cannot, in the course of the trial, suddenly make a 360 degrees turn and declare the accused innocent…’ 

It will be noted that the 360 degree turns by the DPP became particularly swift and frequent in the aftermath of the 2022 general elections. In these 360 degree turns on ongoing cases, the dpp saw Justice Sifuna terming such declarations as unacceptable and extrajudicial.

In his landmark ruling, Justice Sifuna held that in a criminal trial , the prosecution should present the evidence it has and let the court decide. But unfortunately, for public interest and the spirit of the rule of law, this has not been the path taken by the withdrawal-inspired office of the DPP, especially with regard to high profile corruption cases.

And so the eyebrows remain raised as ODPP clashes with EACC and who knows who next in its prosecution of withdrawals.

Next withdrawal, please?

That is my kicker