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By Willy Mutunga*
"In exercising the powers conferred by this Article, the Director of Public Prosecutions [DPP] shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process." Article 157(11) of the Constitution of Kenya 2010.
There is an ongoing robust public debate on the withdrawals of criminal cases against various politicians, former and current civil servants. These politicians and civil servants had been charged with corruption, murder, and other crimes. I do not have the actual rulings of these cases to enable me to comment on the legality of the withdrawals. I am in the process of getting these rulings for purposes of clarifying the issues I raise here.
The Article quoted above is also anchored on the preceding article on the independence and integrity of the Office of the Director of Public Prosecutions. Article 157(10) decrees that "The Director of public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority."
This history of these Articles is not difficult to unravel. The Constitution of Kenya 2010 sought to create institutions and state organs that were independent of forces that had enslaved these institutions since the colonial era. Our criminal justice history records many cases where accused persons were either jailed or released if such forces decreed. The investigative, prosecuting, and judicial arms in these cases were seamlessly aligned to deliver the required outcome of these forces of injustice.
Institutional Blame Games
The vision of the Constitution of Kenya 2010 is that all the three arms in administration of criminal justice work seamlessly to deliver justice to the people of Kenya. The practice has been different as the blame games have been the dominant dialogue when gross injustices occur. Invariably, the Judiciary as the final arbiter in these criminal cases, has been solely blamed. There have been blame games between the investigators and the prosecutors in some cases. The National Council for the Administration of Justice (NCAJ) was created to eliminate blame games and harmonise the seamless professional cooperation in the criminal justice system.
Chief Justice Maraga reflected upon this challenge when he once publicly asked what the Judiciary is supposed to do when faced with evidence that cannot successfully convict the accused after a constitutional judicial process. There is no doubt in my mind that in that chain in the administration of justice lies invisible cartels of corruption or political forces that undermine the administration of criminal justice. The criminal justice system gets so muddied up that the public is at a loss to know who to blame. The politicians have a field day, of course, blaming those they want to target to bear the ultimate blame, and not themselves.
What must be done in the issue of the withdrawal of these cases
I believe it is Mao Zedong who said that those who have not investigated an issue have no right to speak. That was in the context of political party discussions seeking solutions. Nonetheless there is wisdom in the proper investigation of issues in a country like Kenya where shukunuku/gossip/grapevine are the order of the day.
Public interest litigators and or citizens must get all the information the ODPP has. The ODPP does not have to be dragged to court under Article 35 of the Constitution to give the information contained in these files. We have great lawyers who can find out if these criminal cases were justifiably withdrawn. The DPP at this stage should really act in the public interest since his power is delegated to her or him by the Kenyan citizens. There is the issue of the judicial rulings under which these cases were withdrawn. We need to know if the withdrawals were conditional or absolute, the former signalling the possibility of resurrecting these cases for new prosecutions. Again, great lawyers will be able to peruse these rulings and review them in the national interest.
We have been told that these withdrawals were based on affidavits filed by investigators with claims that they were not allowed to give their professional opinions on the investigations. Such manipulations, if at all they happened, are definitely criminal. So are manipulations by political forces of the investigations or prosecutorial, or judicial processes. Of course, these are as invidious as they are invisible, but this evidence must come from the investigators themselves for a start. That is where the manipulation starts. The DPP is next. The current DPP has not, to my knowledge, told the Kenyan people, in a language they can all understand, why these cases were withdrawn. The judicial officers involved will be judged by the rulings given. They will be held accountable. They can face disciplinary proceedings from the Judicial Service Commission if incompetency, misconduct or misbehaviour is unearthed.
So, what is "in the public interest?" Wanjiku versus Mtado?
It is clear to me that public interest as envisioned by Article 1 of the Kenya 2010 must mean the perceived and real interest of the sovereign power of the people of Kenya, individually and collectively. The constitutional value of participation of the people was missing in the decisions taken by the DPP. If there was no manipulation why was this not done? We could have asked individuals and institutions to represent us in the conversations.
Public interest cannot mean the interest of the cartels, ethnic barons, national and international interests that are all capable of subverting the public interest. We see it all the time in the economic, social, cultural, religious, ethnic, and political sphere. The struggle for the public interest of the Kenyan people from all these forces that subvert it on a daily basis must continue. There does not exist any other option.
* Chief Justice emeritus of the Republic of Kenya and Professor of Public Law at Kabarak University.
 Constitution of Kenya (2010), Article 157(11).
 Constitution of Kenya (2010), Article 157(11).
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