By HON. PASCAL EUGENE NABWANA

It will be the worst form of dishonesty on my part if I fail to acknowledge the gradual improvement of the quality in prosecution since the promulgation of the Constitution of Kenya, 2010. Public prosecution has made great strides in the past decade and proved that quality prosecution is a major factor in attainment of justice. I am certain that I share these sentiments with many criminal law practitioners including the ever green Gakuhi advocate and the indefatigable criminal law practitioner Mr. Magolo. If they think otherwise, I challenge them to pen down an article in rebuttal.

It is precisely for this reason that I was beset with joy in the not so distant past when counsels from the Office of the Director of Public Prosecutions (“ODPP”) flatly refused to prosecute a mater which had hurriedly been brought in by some Directorate of Criminal Investigations (DCI) officers in a Nairobi Court. It is not my practice to gloat at the misfortunes bedeviling important institutions in this country, nay. In fact, the role of the DCI in this country and the criminal justice system is extremely crucial and cannot be understated. They are charged with the responsibility of detecting crime, apprehending criminals, doing investigations in crimes and syndicates that are very complex in nature. Conversely, my joy was derived from the fact that it is a constitutional dictate that all files from investigators must pass through the ODPP for scrutiny and review before charging. Odunga J in PETITION NO. 19 OF 2020; ENG. GEOFFREY K. SANG v THE DPP & 4 OTHERS held that when it comes to the exercise of prosecutorial powers, as between the three entities, the Director of Public Prosecutions has the last word. In other words, no public prosecution may be undertaken by or under the authority of either the Inspector General of police or the Director of Criminal Investigations without the consent of the DPP. This enables prosecution counsels, learned in law, to ascertain whether the evidence presented and the charge sheet prepared tallies with the requirements of the law. It is this process that has been overlooked in many an instance in the past that I will endeavor to discuss hereunder.

The decision to charge is key for the criminal justice system as Section 4 of the ODPP Act No. 2 of 2013 mandates the DPP to fulfill a number of key obligations among them being, the need to discharge the functions of the office on behalf of the people of Kenya; the need to serve the cause of justice, prevent the abuse of the legal process and public interest; promote the rules of natural justice; promotion of public confidence in the integrity of the office; and promotion of constitutionalism.

Prosecutors are obligated to exercise their prerogative to charge within the bounds of law, justice, morality and ethical rules of conduct within their profession. In REPUBLIC v KOMBO & 3 OTHERS EX-PARTE WAWERU, NAIROBI HCMA NO. 1648 OF 2005 [2008] 3 KLR (EP) 478; it was held that every act of government power that is to say, every act which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree. Any violation is truly prosecutorial misconduct and an affected party may approach the courts for redress.

The exercise of the discretion to charge may seem simple but it is not easy. The prosecutor has to balance the rights of an anxious and unforgiving complainant, a zealous investigator who believes that all is set for trial, a suspect who hopes the prosecutor will employ superior knowledge in enforcing his rights which he deems already violated and ferocious defence counsels ready to dismantle all prosecutorial evidence to bits. A prudent prosecutor will balance all these competing interests if (s)he analyzes a file within the law and weigh the evidence at hand before making a decision to charge or not to. A review of the file is an irreducible minimum for a prudent prosecutor before the decision to charge is made.

Poor decision making or abuse of the discretion to charge almost always leads to poorly prosecuted cases. I would like to highlight a few examples that I have witnessed during my years of practice both at the bar and the bench as follows: –

  1. An ex-husband made a complaint of the murder of his infant child born of his “new” wife. The current wife (hitherto their house help) and the former were fighting over furniture. All prosecution witnesses in their statements did not attribute any wrong doing on the accused. In deed the star witness was categorical that the former wife did not touch the baby at all even though they had had a scuffle. The case took well over 18 months to complete before she was acquitted;
  2. An accused person was charged for indecent assault a month after the accused had made a complaint of physical assault by the husband of the alleged victim of the sexual assault. The husband was a police reservist. Witness statements provided conflicting and fantastic stories. The extraneous circumstances were manifestly alive but yet a decision to charge was made. The accused was later acquitted;
  3. A 59 year old guard who was armed with a stick (rungu) was charged for failure to prevent a felony (read armed robbery). None of the prosecutions witnesses suggested any negligence on his part in trying to repulse robbers armed with rifles and other crude weapons. He was later acquitted but after suffering in remand for quite some time due to his inability to raise bail or bond;
  4. In another instance 4 people were lumped together in a murder charge where it was alleged that one of them clobbered a drunk reveler to death. None of the prosecution witnesses in their statements witnessed the incidence. Culpability was attributed to only one of the accused’s. Any witnesses to the incidence was among the four accused persons. They were all acquitted for lack of evidence;
  5. We still have charge sheets in traffic courts for over-speeding in excess of about 5 KM/h to 10 KM/h beyond the stipulated limit. The Traffic Act provides that it only becomes an offence when the excess speed surpasses 20 km/h;
  6. Terrorism matters touch on the very nerve of National Security. However, there are few cases which there is absolutely no iota of evidence linking any of the accused persons to any crime under the prevention of Terrorism Act yet charges are preferred under the guise of public interest. Public interest does not convict accused persons. It may bear pressure on the criminal justice system but it is ultimately tight evidence that convicts. Indeed acquittals, rightfully given in such cases only serve to draw criticisms and public condemnation for no reason at all;
  7. There are some matters which have serious interference from unknown quarters. This is a common source of abuse of the prosecutorial decision to charge. These matters will be prosecuted notwithstanding their lack of evidence. You will hear of phrases like “Orders from above bwana!” “Hii ina wenyewe!” Most of these matters are pushed by powerful individuals either within the investigations hierarchy or political leaders for their own gains;
  8. There is an emerging trend where the criminal justice system is being used as a debt collection agency. Civil debts turn into stealing or obtaining money by fraudulent pretences. Why would a decision to charge be made on a purely civil matter?

EFFECTS OF ABUSE OF PROSECUTORIAL DISCRETION TO CHARGE

Whenever a prosecution counsel is presented with a completed file from the police, he or she ought to answer one crucial question; Is this case provable? The answer to this question is Yes, then the discretion to charge should be exercised in favour of charging. The contrary is also true. However, when a prosecution counsel entertains the question; should I prove this case? It already denotes doubt as to the weight of the evidence of a particular case and they should not charge. It should be understood that abused prosecutorial decisions to charge erodes public confidence in the criminal justice process. It fans systemic abuse of human rights within institutions charged with the responsibility of protecting and promoting them. It also saddles courts with matters not fit to stand trial and creating backlog within the judiciary. Lastly, extreme cases of abuse of prosecutorial discretion will lead to a risky trend where there is lack of uniformity in the decisions to charge. Whilst I acknowledge that there must be variances whenever discretion is employed, it must not be to the extent as to be alarming.

CONCLUSION: –

It is not in doubt that abuse of prosecutorial discretion to charge is antithetical to the rule of law, morality and justice. Failure to review a police file before charging is akin to flogging a dead horse. The more the time passes the more the stench of the decomposing horse becomes unbearable. Ultimately, court will throw out matters that do not meet the threshold required of criminal cases.

In Kenya prosecutorial discretion to charge or not is not subject to public scrutiny and may end up being abused by imprudent prosecution counsels. However, this discretion should remain absolute for the simple reason that the DPP’s powers and constitutional protection under Article 157 (10) clothes him with the power understated: –

“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.”

This is crucial if the DPP has to prosecute crime. Absolute discretion should not be fettered. However, firm administrative mechanisms like issuing a written decision justifying the decision to charge or not to is crucial. It will bring about uniformity in charging procedures and the ODPP can be able to administratively ensure adherence to the rule of law and logic is applied in the discretion to charge or not to charge.

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Hon. Pascal Eugene Nabwana

Resident Magistrate

Mpeketoni Law Courts