Why DPP Haji, Kinoti are no longer at ease
Tuesday, February 25th, 2020
When they took office two years ago, they were presented as the dynamic duo that would invigorate the fight against corruption and activate the administration of justice.
True to the citation, Director of Public Prosecutions (DPP) Noordin Haji and the head of criminal investigations George Kinoti, hit the ground running, with dramatic arrests of high-profile individuals in and outside government who were previously deemed untouchable.
And they did not shy away from the media as they gave regular updates on operations of their high profile offices and cases they were pursuing. Soon, those facing investigations over corruption and other criminal activities dreaded the mere mention of Haji and Kinoti’s names.
But, yesterday, the two declined to comment on claims that they are no longer reading from the same script as far as prosecution of high profile cases is concerned.
While Kinoti gave a curt “No comment” response to inquiries by People Daily, Haji ignored all attempts to respond to the allegations. Sources in the criminal justice system say the bromance between the two crime busters seems to have faded, with insiders attributing the turn of events to a blame game between their offices.
Indeed, the two no longer appear for press conferences together, the sources observed.
While the office of the DPP accuses Kinoti of conducting poor investigations before making arrests, sometimes leading to acquittal of suspects in court, the Directorate of Criminal Investigations blames Haji for weak prosecution of cases.
Chief Justice David Maraga has on many occasions expressed concern over the quality of investigations before cases are presented before court.
“The war against corruption is not going to be won by blame games. The war will be won by the application of the law. If we are given half-baked cases we will dismiss them firmly,” Maraga said recently.
It was former Chief Justice Dr Willy Mutunga who at the weekend kicked off debate over alleged misuse of key evidence in public platforms. Mutunga tweeted: “Is the media in breach of the right to privacy? Reporters also get intel from investigators raising the issue of the right to fair trial.”
The former CJ was making reference to Kinoti’s comments on investigations leading to the arrest of Appeal Court judge Sankale ole Kantai.
Top city lawyer Ahmednasir Abdullahi joined the debate with a tweet: “DPP Noordin has an obligatory constitutional duty to investigate why crime investigation files are first handed over to the media then to his office. Isn’t the media being used to (a) cloud his judgement (b) exert pressure (c) rally public opinion against the accused?”
Nairobi lawyer Maria Mbeneka, said it is unprocedural for the DCI to make public evidence through the media. “By doing so, the DCI will be injuring both the DPP and the accused since public opinion will be formed against it with the evidence and the nitty gritty already out,” said Mbeneka, who is vying for the presidency of the Law Society of Kenya.
Another city lawyer, Oliver Kipchumba, described the Kinoti-Haji alliance as “unholy and incestuous”. Kipchumba accused Kinoti of making dramatic allegations to the public to whip up emotions, only to present weak or different evidence or charges in court. “The office of the DCI should be held accountable for trying to shape public opinion, clouding the judgment of the DPP to prosecute cases not on the strength of the evidence available but on public perceptions,” said Kipchumba. “The evidence he reveals to public does not get into the courtroom. The DPP is supposed to oversight the DCI and not the other way round. The collapse of their relationship is good for the administration of justice,” he added.
However, lawyer Steve Ogolla defended the DCI, saying he had a right to make investigations public. “If the quality of evidence is strong, it doesn’t matter what he says in public. Public interest also matters in handling of cases,” he told People Daily.
In the past, Maraga has accused the DPP of framing cases poorly and failing to provide witness statements on time, denying those accused ability to defend themselves.
Mbeneka said the emerging differences between the offices of the DPP and that of the DCI could hugely affect the quality of high profile cases. “What I find curious is when they rush high profile cases to court only to ask for more time,” he said.
Despite high profile arrests, Kinoti and Haji are yet to record any major convictions in the cases they have taken to court, and a majority are yet to kick off due to legal technicalities.
Chief Registrar of the Judiciary Anne Amadi blames the DPP for delay in hearing of corruption cases. “The problem we have is the design of the prosecution. The way they were done is evident that some of them will never be finalised even in the next one year unless something is done,” she told a parliamentary committee, accusing the DPP of lining up more than 40 witnesses in some of the cases.
Some of the cases where big number of suspects have been charged include the National Youth Service corruption trial, the case involving officers of the Kenya Revenue Authority and the matter facing senior managers of Kenya Power.
In all the cases, defence lawyers have accused the prosecution of engaging in a fishing expedition where the DPP presents suspects in court and then asks for time to gather evidence.
The DPP and the DCI have also suffered embarrassing defeats in some cases they took to court, mainly due to shoddy investigations or weak evidence.
In one such incident, Nanyuki High court judge Mary Kasango while acquitting a suspect wrote: “As I write this judgment, there is no doubt in my mind that all players of the justice system failed in ensuring that the person/s responsible for the death of the deceased were brought to book.”
The case is one among many where officers have been blamed for bungled investigations or failing to follow the law of evidence, hence, giving guilty persons a ticket to undeserved freedom.
A good example is Nakuru’s Solai dam tragedy case. After 18 months of adjournments, suspects who were brought to court in a dramatic manner on May 9, 2018, walked free after Chief magistrate Kennedy Bidali ruled that there was lack of “willingness” and support from the DPP’s office in prosecuting the case. “No court should be held to ransom by the office of the DPP and the accused have the right to fair and speedy trial but the prosecution has time and again proved it was not ready to handle this case,” he said.
Haji has in the past said his office required funding to employ more prosecutors. According to the DPP a greater budget allocation should be considered to facilitate the hiring of new prosecutors across the country.
Haji says his office requires between 1,500 and 2,000 prosecutors to ensure quality prosecution. Currently, there are only 900 prosecutors countrywide faced by an “overwhelming” number of cases.