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Corruption cases to go through pre-trial

By Zadock Angira
Monday, May 18th, 2020
Anti-Corruption Court Chief Magistrate Douglas Ogoti.
In summary

The prosecution will now have to disclose all the relevant evidence when filing charges in the Anti-Corruption Court before files are accepted for registration and taking of plea.

Anti-Corruption Court Chief Magistrate Douglas Ogoti ruled on Thursday that the Director of Public Prosecutions, the police, and the Ethics and Anti-Corruption Commission (EACC) have to disclose witness statements, charge sheet, criminal records where relevant, expert evidence, relevant transcripts of interviews, video, audio recordings and photographs before files are accepted in courts. 

 “The relevant agencies to ensure that at the time of filing of the charge(s) in the Anti-Corruption Court, they simultaneously file a copy of a duly executed inventory as above guided.

It is upon the satisfaction of the above requirements that the plea will be accepted for registration and only then will a matter be fixed for plea taking,” Ogoti ruled.

Ogoti said the disclosure law contributes to fair administration of criminal justice by minimising the undesirable effect of surprise at the trial and contribute to the accurate determination of guilt or innocence.

“Failure to disclose significance evidence to the defence in numerous cases has led to reversal and dismissal of cases,” Ogoti ruled.

In the case of Nairobi Governor Mike Sonko’s anti-graft case number 32 of 2019, the plea was taken on February 26 this year and not much progress has been made.

Give consent

“The reason is simple. There has been no properly organised disclosure. This has become common as there are other cases some of which I will mention later where disclosure was delayed leading to delays in the commencement of the cases, a scenario that can be avoided,” Ogoti ruled.

Sonko was charged together with Peter Mbugua Kariuki, Patrick Mwangangi, Wambua Ndaka, Andrew Nyasiego, Samwel Mwangi Ndung’u, Edwin Kariuki Murimi, Lawrence Mwangi Mukuru, Preston Mwandiki, Anthony Mwaura Ng’ang’a, Rose Njeri, and Anthony Otieno Ombok alias Jamal. Others were Hardi Enterprises Ltd, Toddy Civil Engineering, Arbab Auto Ltd, Rog Security Ltd and High Energy Petroleum Ltd.

Ogoti said proper disclosure of evidence of great force may cause the accused to plead guilty and this would be to the advantage of the administration of justice and of accused.

“The search for truth is advanced rather than retarded by disclosure of all relevant material,” he said.

Some of the cases where disclosure delayed or continues to delay include Anti-Corruption Case (ACC) 10 of 2018 where plea was taken on May 29, 2018 and disclosure was on August 7, 2018; ACC 45 of 2018 where plea was on October 15, 2018 and disclosure made four months later, on February 12, 2019; and ACC 48 of 2019 where plea was on December 10, 2018 whereas disclosure was on April 29 2019, over five months and almost three weeks later.

Under the Anti-Corruption and Economic Crimes Act, before a case is presented to court, the investigations file must first be presented to DPP with recommendations to give consent to prosecute.

This means that by the time a file is being handed over to the DPP and the DPP gives consent to prosecute, the investigations are complete, and the prosecutor is presumed to be in possession of all the evidence forwarded to the DPP for his consideration to prosecute.

Ogoti said this meant that if the DPP gives consent to prosecute whereas the investigative agency did not complete its work, the DPP then carries that burden to court and this makes them responsible for the failures of the institution which is then exhibited in court due to their inability to disclose within timelines given by the court.

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