Explainer: Why ODPP withdraws high-profile court cases

Insufficient evidence that cannot stand in court and the desire to save taxpayers money are among the reasons why high-profile cases are withdrawn by the Office of Office of the Director of Public Prosecutions (ODPP)

Deputy Director of the Department of Prosecution Training Institute Mr. Aloys Kemo explained that evidence in all the cases that have previously been withdrawn could not sustain the charges and those indicted were likely to win and sue the government for compensation, so the cases were withdrawn to save the taxpayers’ money.

Kemo said withdrawal of cases by the Office of the Director of Public Prosecutions (ODPP) is not strange and that over 1,000 cases have been withdrawn so far.

“The withdrawal of cases is something that is done every day countrywide. It is only that we focus on those of senior persons,” the official indicated.

Addressing legal experts, judicial officers, law students, policy makers, departmental heads and members of the public during an -Office of Office of the Director of Public Prosecutions Open Day- held at the Red Cross Hall in Nakuru, Kemo explained that before any case is withdrawn, assessment is done on its viability and the reasons must be convincing to the court. The event was themed ‘Mashtaka yenye uhaki na yenye usawa’.

“We have had many instances where the courts have declined the withdrawal of some cases because the reasons given by the ODPP were not convincing, so we do not withdraw cases just for the sake of it,” the official elaborated.

Kemo affirmed that ODPP had no ill motive while dropping charges against some cases.   He said the Prosecution should not play a passive role and prosecute every matter presented by an investigative agency that does not meet the threshold.

“One of the cardinal duties of a Prosecutor is to ensure proper facts are placed before court for adjudication hence the need to constantly review decisions to prosecute. The decision to prosecute is one of the most important aspects in the criminal justice chain. The decision to prosecute is weighty and cannot be left to the hands of an investigator,” Kemo pointed out.

The Prosecutor stated the official bears the ultimate responsibility in making the decision to prosecute while the ODPP bears the sole responsibility to interrogate every aspect of an investigative file.

“The ODPP is not and should not be a conveyor belt. The ODPP works in coordination with various investigative agencies. The entire criminal justice system is like a chain that should not be broken, it is a complementary relationship,” he explained.

The Deputy Director maintained that the docket had done well in prosecution of cases touching on high profile individuals.

He explained that some of the circumstances that forced the office to declare a case lacked enough evidence.

“When a matter is before the court, during the trial, you might encounter some information or some evidence from the defence that was not available at the time you were deciding to charge. At that point, you will need to go back and review and you may be forced to withdraw the case,” he explained.

In another circumstance, he said the witness might lose interest in the case and withdraw or in the case of the death of a witness.

He also mentioned withdrawal by the complainant; “In some cases, we have complainants declare that they have no interest in the case. They have reconciled with the suspect and don’t want us to proceed”.

Kemo further said that the office might be forced to withdraw a case considering the circumstances under which a person was charged, which might change over time due to public interest or other factors.

He also listed the incident where witnesses gave contradictory evidence, which then forced the court to go back to the drawing board.

When such withdrawal happens, the Public Prosecutor does anticipate losses resulting from the loss of time and resources in pursuing the case.

However, the Deputy Director said the withdrawals would rather save the taxpayers a lot of money that might have been paid to the accused for damages after they were acquitted.

“When the ODPP realizes that this case will lead to an acquittal under section 210 where the court will say there was no evidence whatsoever, and when such a high-profile person is acquitted and they move to civil court to claim damages, then you can be sure it can be millions because of their status in the society,” he added.

He further refuted claims of the Office withdrawing cases of only highly profiled individuals, mentioning that there were countless cases withdrawn in courts all over the country daily for lack of evidence.

Nakuru County Commissioner Mr. Loyford Kibaara stated that by organizing the event, the ODPP was reflecting fairness and equality in the professional prosecution process.

While upholding that integrity is the core value in the criminal justice system, Kibaara said incidences of corruption were affecting service delivery and diminishing public confidence in State run institutions.

He stated that public officers needed to foster public trust and promote ethical behaviour adding that prosecution was one of the core components of the criminal justice chain.

“The role of prosecution is entrusted in the Office of the Director of Public Prosecutions (ODPP) as enshrined under Article 157 of the Constitution. Further, Article 157(10) provides that the DPP does not require the consent of any person or authority for commencement of criminal proceedings and in the exercise of its powers or functions, the DPP shall not be under the direction or control of any person or authority,” elaborated the administrator.

Kibaara indicated that in exercise of his powers, the DPP is bound by the provisions of Article 157(11) that required the DPP to have regard to public interest, the interest of administration of justice and need to avoid abuse of the legal process.

He explained that investigative agencies were required to adhere to various provisions of the Constitution adding that to institute criminal prosecutions, the ODPP depends on various investigative agencies.

Kibaara mentioned “Section 2(1) of the ODPP Act defines an Investigative Agency as, “in relation to public prosecutions means … Ethics and Anti-Corruption Commission…”. Once an investigative agency submits its findings, the ODPP is required to peruse the file based on laid down criteria. Section 4 of the ODPP Act provides the guiding principles that must be adhered to in whatever decision the ODPP takes,” he noted.

These, he said, include, the rules of natural justice, the need to serve the cause of justice, prevent abuse of the legal process and public interest, among others.

The ODPP, observed Kibaara, is required to ensure all necessary evidence is gathered, and no loopholes are left.

“Once investigations are completed, the same is submitted to the prosecutorial agency to give appropriate direction, which may include no further action is required, or to investigate further certain critical areas, or direct the matter to diversion, among others,” he said.

Before the 2010 Constitution, the Police Force (as it then was) was both the investigator and prosecutor in all lower court matters.

The prosecutorial office was a mere department under the Office of the Attorney General.

ODPP was delinked from the Office of the Attorney General after the promulgation of the 2010 Constitution.

The system of checks and balances introduced by the Constitution, Kibaara said, must always be maintained to ensure fairness.

“A Prosecutor is also required to constantly review the evidence on record in order to ensure quality prosecution. Section 5(4)(e) of the ODPP Act provides for the power to review a decision to prosecute or not to prosecute any criminal offence,” the administrator said.

He noted that successful prosecution required thorough investigations using modern investigative techniques and that all players in the chain must play their role and work seamlessly.