DPP on the spot over Linturi case ‘bungling’
The Directorate of Public Prosecutions (DPP) is on the spot after a constitutional office accused it of allegedly subverting the rule of law and administration of justice.
The National Cohesion and Integration Commission (NCIC) has taken issue with DPP Noordin Haji’s office over the manner in which it handled the hate speech case against Meru Senator Mithika Linturi, before it eventually withdrew it.
NCIC questions whether it was by coincidence that the same State Counsel who handled the incitement case against Kapseret MP Oscar Sudi, in which the legislator was acquitted under “unclear circumstances” was the same one who was mandated to deal with the Linturi case that “it bungled again”.
NCIC claims DPP Noordin Haji’s office had hatched a well-choreographed scheme to assist Linturi and other high-ranking influential personalities to “evade justice”.
“It is unfortunate that the utterances of the suspect are being protected by certain individuals through the State Counsel whereas it is fresh in the minds of Kenyans that the atrocities that befell them during the 2007/08 post-election violence were ignited by utterances similar to those of the suspect,” NCIC notes.
In a bare-knuckled attack, NCIC chief executive Dr Skitter Ocharo says the DPP’s decision has not only reduced it to a laughing stock before the eyes of the public, but has also rendered it “a toothless bulldog”.
“By actions of the prosecution, we feel regarded as a lesser player in the justice system and, therefore, shortchanged and hereby demand that the matter be brought before a court of law and the suspect charged without further delay,” Dr Ocharo states in a letter dated March 17.
The letter is copied to Attorney General Kihara Kariuki, Inspector General of Police Hillary Mutyambai, Director of Criminal Investigations George Kinoti, Chief Justice Martha Koome, the Law Society of Kenya and the National Council on the Administration of Justice.
But Haji last evening described the letter as full of “utter nonsense” as he denied claims that he is out to “protect Linturi or any other suspect.”
“What business do I have with Linturi? My work is to ensure the rule of law and dispensation of justice. I have been out of the country and only received the letter this morning, which I shall respond to point by point and copy to you,” Haji told the People Daily by telephone.
Ocharo asserts that NCIC had a strong case against Linturi and claims by the ODPP that he had recalled the file for review and analysis of evidence is a gimmick for possible cover-up.
“Our conviction is that we had and still have a watertight case and the same was due for prosecution, which has, however, delayed under the impression that it is still being reviewed and evidence analysed,” she said.
Private prosecution
NCIC boss warns that should the DPP fail to institute charges against Linturi, they would initiate a private prosecution against the senator under Section 28 of the ODPP Act. “The ODPP is expected to assist the court to arrive at a just decision. By not charging the suspect is tantamount to denying the commission an audience with the court to prove its case against Linturi,” Ocharo observes.
Withdrawal of charges against Linturi, the NCIC boss argues, had demoralised investigators after toiling under tough and dangerous conditions to gather evidence “that is now gathering dust in the DPP’s office”.
NCIC also accuses the ODPP of usurping the powers of investigators and courts by the manner in which it handled the Linturi case.
“The withdrawal of the miscellaneous criminal application is not an acquittal, and neither is it a bar from prosecuting the suspect,” Ocharo states.
Investigative agencies
Besides pushing for Linturi’s prosecution, NCIC is also demanding that Haji and other investigative agencies undertake comprehensive investigations into the conduct of an assistant director of prosecutions with a view to taking appropriate action against him. Ocharo says Haji can only exonerate himself from claims of being part of the cover up scheme if he initiated investigations against the official.
“We require that you initiate a complaint for an investigation by an appropriate investigative agency to investigate prosecutor (name withheld) on decisions that are believed to have been influenced by unethical considerations to the detriment of Kenyans,” NCIC petitions.
NCIC protest follows a recent decision by the DPP to terminate an incitement case against Linturi that was pending in a Nakuru court.
Nakuru Chief Magistrate Edna Nyaloti dismissed the miscellaneous application by detectives, who had sought to investigate the senator for incitement after the prosecution failed to prefer charges against him within the allocated time.
Prosecution said it had withdrawn the miscellaneous application as it awaited several areas to be covered by the investigating officer and charges to be preferred later. The ODPP then said in a tweet that it had returned the file to NCIC to fill in some gaps in the case.
“ODPP will make the decision to charge once investigations are complete in the ethnic contempt case against Linturi. ODPP returned the file to NCIC to cover outstanding investigation gaps before resubmission.”
Evoke memories
Linturi was arrested by detectives at Eka Hotel in Eldoret on January 9 over utterances he allegedly made at a rally in Eldoret, and taken to Nakuru, Nairobi and back to Nakuru.
His Madoadoa remarks are said to have evoked memories of past episodes of pre and post-election ethnic violence where certain communities were attacked for not supporting a candidate from the larger host community.
But in its protest letter, NCIC accuses the ODPP of purporting to give directions that have no place in law with the sole purpose of setting the public against the commission. Commission claims that four days after it had started investigations and arrested the suspect, before releasing him on bond, the ODPP wrote a letter to Inspector General Mutyambai purporting to direct him to begin the probe, an action it says was meant to cause confusion.
“The commission is at a crossroads as to whether the intention of the above letter was to take away the mandate of investigations under the NCIC Act or to have the police superintend over the commission on its functions or still further carry out parallel investigations,”Dr Ocharo said.
Commission, after ignoring ODPP’s directive to Mutyambai, went ahead and completed investigations and presented the suspect in court.
But to the commission’s surprise, the ODPP once again stood on their path, with fresh instructions that they put on hold everything until the investigating officer addressed finer details in the case.
Even after covering the sought details, the ODDP filed an application in court withdrawing the matter altogether.
“The actions by the prosecution have left the commission with mud in the face and being labelled as a toothless bulldog, all based on the fact that the suspect has been assisted to evade facing the law,” Ocharo says.
