Last week, Kenyans were shocked at media reports indicating that the Office of the Director of Public Prosecutions (ODPP) had withdrawn corruption cases of high public interest, some involving individuals being considered for executive positions in the new government, without proper justification to members of the public. A contravention of the principle of transparency and accountability to the public, especially in ensuring regard to the public interest, the interests of the administration of justice and the need for ODPP to prevent and avoid abuse of the legal process. Further reports of other cases in court being reviewed, have further raised eyebrows coming at this critical point of the political transition in the country.
The ODPP, in as much as it is an independent institution, does not have blanket unilateral power to file and drop cases as it so wishes but must be guided by the law and the Constitution. The DPP, similar to every other public servant, acts on delegated power from the people of Kenya which must be exercised in the public interest and in utmost good faith. This is an overriding interest that must guide the ODPP in every decision including whether to file or drop a case. As such, it will be prudent for the ODPP to lay bare justifications behind the instantaneous withdrawal of graft charges against certain high-profile individuals.
Some of the individuals being exonerated from the graft charges are currently undergoing vetting or interviews for public appointments. Aisha Jumwa, whose Ksh 19 million graft charge was withdrawn, is a cabinet nominee, while Ken Tarus, the former Kenya Power Managing Director whose graft case was withdrawn is among those shortlisted by the Public Service Commission for a Principal Secretary position. The withdrawal of these cases and charge in the case of Ms Jumwa, is therefore a clear mockery of the leadership and integrity tenets enshrined in Chapter 6 of the Constitution of Kenya 2010. For when Kenyans cast their ballot for this Constitution in 2010, personal integrity and the attainment of moral and ethical requirements as prescribed by the Constitution became key criteria for the election or selection of individuals to public office.
The ethical threshold set by our Constitution stops anyone that has been accused of any breaches from holding public office – as these then go against Chapter 6 of the Constitution and fail to bring honour to, and demean the office held. Once one is accused, aspersions are cast on his or her person, regardless of the principle of presumption of innocence. While everyone is entitled to fair hearing, it trumps public
interest that one who has been accused of corruption or other criminal offences, should be given a ticket to public office or continue serving in public office when they have a case to answer.
Our laws require suspected criminals to go through a complete trial process in the courts to ascertain their guilt or innocence, and ODPP’s prosecutorial mandate is a key cog in the trial process. In fact, the DPP has been on record on several occasions stating that his office only files charges in court when fully satisfied that the cases have met the evidentiary threshold to secure a conviction which in criminal cases must be beyond reasonable doubt. It can therefore be justifiably assumed that prior to the filing of the aforementioned cases, the ODPP was satisfied by the evidentiary threshold to convict him and his office that criminal offences had been committed and were prosecutable. If this was the case, then why the zeal by the ODPP to withdraw the cases at this stage and time when some of the individuals are being considered for public office, and even worse, without any justifiable reasons to the public.
ODPPs failure to disclose the reasons behind the withdrawal of the graft cases leads to speculations on the ODPP’s commitment to the fight against corruption, and to preserve, protect and defend the Constitution.
The ODPP must immediately supply Kenyans with detailed information on what elicited the decision to charge in the first place, and justification to withdraw the cases now.
By Sheila Masinde, Executive Director, Transparency International Kenya
A copy of the article was published in People Daily Newspaper on 25/10/2022