Eyebrows raised as Haji ends high-profile cases

Monday, December 5th, 2022 04:00 | By
Tob Cohen’s widow Sarah Wairimu. Photo/PD/File
Tob Cohen’s widow Sarah Wairimu. Photo/PD/File

The withdrawal of ongoing criminal cases involving high-profile individuals from the courts has now put the Director of Public Prosecutions (DPP) Noordin Haji on the spotlight with questions growing over the independence of his office.

 Haji has over the last two months been on a spree, dropping almost all corruption and criminal related cases, particularly those facing high profile persons associated with President William Ruto, and were investigated under the former Director of Criminal Investigations (DCI) boss George Kinoti.

 Last week, the DPP sought to drop murder charges against Public Service Cabinet Secretary Aisha Jumwa and those of Sarah Wairimu over the murder of her late Dutch husband, Tob Cohen and her co-accused Peter Karanja.

 He now wants the case registered as an inquest. The DDP has discretion to withdraw cases but Law Society of Kenya (LSK) President Eric Theuri says the high number of withdrawals raises questions on the motive and timing.

 “If the cases are being withdrawn for lack of evidence, then the DPP must take responsibility and explain how the decision to charge was arrived at,” Theuri says.

 Since President Ruto was sworn in as Kenya’s fifth president in September, Haji has withdrawn multiple high-profile cases, evoking mixed reactions from Kenyans amid speculation over possible political meddling.

 While some have questioned the timing of the withdrawals, most of which involve close allies of President Ruto, others have defended the move, claiming that some of the allegations were fabricated by the regime of former President Uhuru Kenyatta for political reasons.

In the last two months several criminal and graft related cases have been dropped against Deputy President Rigathi Gachagua, Agriculture Cabinet Secretary Mithika Linturi and his Public Service counterpart Aisha Jumwa, former Kenya Power boss Ben Chumo and Keroche Breweries Director Joseph Karanja — husband of Nakuru Senator Tabitha Karanja, among others.

State office beneficiaries

 Other beneficiaries of Haji’s withdrawals include Thika based tycoon Humphrey Kariuki and activist-cum-business lady Mary Wambui who were facing tax evasion charges of Sh17 billion and Sh2.5 billion respectively and former Samburu Governor Moses Lenolkulal’s Sh80 million case, among others.

 The withdrawals, according to legal experts, could be a pointer to the fact that the DPP may not have been working independently in prosecution of cases in court and he has either been acting under duress from some forces.

 “The reason for the withdrawal of cases against suspects in the new government is coming in fast and is not necessarily as it is worrying. One wonders why the cases which were instituted two to three years ago are now being dropped. The bigger picture that Haji appears to be sending to the country is that he is not independent, and that investigations and prosecutions are not as per the law. He is satisfying the interest of some characters and not as per the operations of the rule of law, “a senior government official, who declined to be named due to the sensitivity of the matter, told the People Daily.

 According to the official, who is also a lawyer by profession, the ODPP, in as much as he 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.

 “DPP Haji is incompetent to hold office as he appears to be a puppet controlled by some individuals who give him orders on who to charge and which cases should be dropped,” the lawyer said.

 On the issue of the Independence of the office of the DPP, the lawyer added that the office was given the mandate to prosecute any criminal cases without being prompted by anyone or being given orders to pick or drop cases.

 “The office was to look at the merit and the evidence of each case before presenting it in court upon receiving the same from the investigating agencies which include DCI, Ethics and Anti-Corruption Commission (EACC) and Kenya Revenue Authority (KRA) among others,” he said.

 Kenya Human Rights Commission (KHRC) has also expressed concern over the DPP’s move to drop cases stating that Haji needs to tell Kenyans the reasons behind the sudden case withdrawals.

 “Although the government has touted its commitment to tackling corruption, we are baffled by the spate of coordinated withdrawals of high-value graft cases by the ODPP. The ODPP and DPP Haji owe Kenyans an explanation over the sudden surge in withdrawal of graft cases,” KHRC said.

 But defending Haji, lawyer Kirathe Wandungi says it is unfortunate for persons to be dragged to court when investigations have not been concluded.

 “It is a violation of the constitution and legal procedures to rush suspects to court without sufficient evidence. The evidence should have been tested before the matter was taken to court. I call for changes on the country’s judicial system to ensure that nobody is ever charged before investigations are complete and that there be full disclosure of evidence before commencement of a criminal trial,” Wandungi says

 In his move to drop the cases, Haji has on several occasions blamed the DCI for presenting weak cases before.

Expressed amusement

 During the withdrawal of Sh7.3 billion graft case against Gachagua, the trial court expressed amusement over reasons given by the DPP while withdrawing the case. Magistrate Victor Wakumile observed that the DCI and DPP had been engaged in a blame game in the prosecution of Gachagua.

 “Investigators and prosecution counsel have played a blame game in this matter. I have heard them and what they are simply saying in different tones and words, they were instructed to proceed and operate within what (evidence) was at hand,” the Magistrate said.

 This however prompted the magistrate to propose the introduction of a personal prosecutorial and investigative liability policy to protect junior officers working with anti- crime state agencies from acting on illegal orders from their bosses.

 Wakumile also recommended the introduction of another office in the Judiciary to check on whether the evidence obtained by the police investigators is sufficient to secure a conviction in court.

 The proposed office, to be known as “office of pre-trial judge” would be mandated to peruse police files, and scrutinize the available evidence before any suspect is arraigned in court to answer to the charges. The intention is to bring to an end abuse of the criminal justice system by police investigators and prosecutors and reduce case backlogs.

 “In my view Parliament should consider passing the necessary legislation to establish an office of pre-trial judge. That office should subject activities of the DPP, DCI and any other investigative authority as relates to intended charges to scrutinize investigations, determine the number of witnesses bonded based on the quality of testimony and set down the timelines of each case.

 When such issues are determined the decision should be binding and full disclosure before suspects are followed for plea taking and commencement of a trial,” the senior principal magistrate said.

The magistrate called on all agencies involved in the justice system to embrace professionalism for the good of the nation.

According to him, the law should never be applied selectively but equally to all Kenyans as investigators, prosecutors and even judicial officers have a responsibility to clean the judicial system and make it better.

The court also questioned the evidential threshold used by the ODPP while making the decisions to approve the charges.

“The question that begs an answer is how come in this matter the DPP seemed to have acted and preferred charges based on inconclusive investigations since they were anticipating evidence,” posed the magistrate.

“There is only one logical threshold that should be the basis of charging any citizen that is the evidential value. Evidence presented should be able to prove a case beyond reasonable doubt,” Wakumile said.

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