I have no view on the guilt or suspicions about, or indeed much else, about those politically connected people who were being prosecuted for something over the last few years and against whom prosecutions are now being withdrawn.
I simply want to set out the constitutional position.
Before the current Constitution, prosecutions of people suspected of having committed criminal offences were often started, and conducted, by the police. We did have a Director of Public Prosecutions, but the office was under the Attorney General, a political office, and neither was really independent. The criminal justice system was a tool of the government in various ways.
A particular problem was labelled with one of those little bits of Latin that colonies inherited with the imposed legal system: “nolle prosequi” – meaning do not prosecute.
To issue such an order was a power of the Attorney General, and there were no limits on it. And it would be exercised as it suited the government.
THE CONSTITUTION
The first report of the Constitution of Kenyan Review Commission, in 2002, the Short Report, said that its draft Constitution would improve the criminal justice system by:
(i) An independent Director of Public Prosecutions,
(ii) a Public Defender,
(iii) legal aid services,
(iv) a constitutional requirement to develop a policy for prosecuting, which must be made public,
(v) private prosecutions to continue to be permitted (subject to court approval),
(vi) requiring court must approval for the use of the nolle prosequi, and
(vii) an independent body to decide whether a pardon or commutation of sentence was granted.
Numbers (i), (vi) and (vii) are in the 2010 Constitution.
A rather weak version of (iii) on legal aid (services of a lawyer) is in Article 50 and is not yet realised. The DPP has issued prosecution policies publicly. Private prosecutions are almost impossible now. The public defender disappeared at the Parliamentary Select Committee in 2020 – one of the many unfortunate changes by that committee.
Article 157 of the Constitution is very clear. “The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and … shall not be under the direction or control of any person or authority.”
Then, “The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”
And finally, “In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”
The dominant issue in the minds of the office must be whether there is sufficient evidence to get a conviction in court. It is legitimate to decide not to prosecute for reasons of mercy, for example, but not for political favouritism reasons. Other issues might be more debateable – like not prosecuting for fear of damaging relations with a friendly nation.
But it is of course against the Constitution for the DPP to start a case because of a direction from anyone else (even the President), or because he or she believes this is what the President wants, and for the office to stop a prosecution for similar motives.
HOW CASES END
Once a criminal case has gone to court, it will end in one of several ways.
The person accused may be convicted – found guilty -- of the offence. They may be found not guilty after a full trial. In that case that is the end of the case and they cannot be tried again for the same offence.
After the prosecution has brought all their evidence to show the person has committed the crime, the accused may argue “If that’s all you have, you really have not shown that I committed any crime. I have no case to answer”.
This is usually because the evidence just does not prove that the accused person was guilty. It might be because what the accused person is proved to have done is not a crime. If the court agrees it must find the accused person not guilty - meaning the case ends.
WITHDRAWAL
The trickiest cases are when the case is withdrawn. There are four basic situations.
The victim or victims of the alleged behaviour of the accused person may decide they do not want the case to go ahead. A variant of this is that victims and the accused person have decided they want to settle the matter out of court.
The DPP may decide to withdraw the case. This might be before the prosecution has finished producing its evidence and arguments. If the case ends in these circumstances, the prosecution could bring another case based on the same facts. It might want to do this because it realises its evidence is weak but it believes there is more to be uncovered. Or the prosecution might realise - perhaps based on the evidence brought by the accused person – that its case is hopeless. If it withdraws at this late stage the accused person will be acquitted by the court.
The DPP might withdraw the case against one accused person so that person can give evidence against other accused individuals. That is a different type of “deal”.
The prosecution may agree to withdraw some charges, while the accused pleads guilty to others – a “plea bargain”.
To some extent, the law encourages parties to agree to settle a case. The Criminal Procedure Code says that courts may promote reconciliation and “encourage and facilitate the settlement in an amicable way.” This fits with the Constitution, which says that other ways of dealing with disputes than going to court – including using traditional methods – should be encouraged (Article 159(2)(c).
The whole idea of criminal law is that there is a public interest in punishing, and hopefully rehabilitating, people who have committed harmful acts against others. But the law recognises that some cases are of a personal nature – and presumably the offender is not a general danger to people. Offences “of a personal or private nature” may be settled. The Sexual Offences Act says that no cases under it may be settled by agreement between parties.
Courts have said that even if the person who has suffered wants to withdraw the case, they should do so through the prosecutor. This means the court must also decide whether to approve. And the court must surely also consider the public interest.
Even in the so-called private or personal cases, the prosecution and the court must surely want to be satisfied that the victim’s wish to withdraw is genuine – not caused by threats from the accused person, or by an offer of a bribe rather than genuine compensation, for example.
Some controversial cases have involved murder, and cases have been withdrawn, and courts have agreed, because the two families involved have reconciled and agreed on customary compensation. This is seen as encouraging traditional methods.
The prosecution, and the courts, should be careful. Has everyone really agreed? Or is it maybe the head of the family who has decided alone or forced his will on others? Is an individual being spared punishment although they may pose a threat to others? (The court is not supposed to know about an accused person’s past record, but the prosecution should be aware of it).
We are seeing a spate of withdrawals of prosecutions. As the prosecution, and the police, try to explain away their earlier actions, the courts have an important role to play. Are people who tell the courts that they lied or fabricated evidence in the past now telling us the truth? Are people against whom there is genuinely substantial evidence being allowed to go free not because of past favouring of past government but because of the same for the current government?
It is of crucial importance that – as faith in yet another important public institution drains away – the Judiciary remains faithful to the Constitution, including that it has the final say on withdrawal of criminal cases.
The author writes in her personal capacity