The judiciary has said that the office of the Director of Public Prosecutions is the only body mandated by the Constitution to prosecute.
The clarification comes following the reports in some media that the Court of Appeal in a recent judgement ‘gave the Ethics and Anti-Corruption Commission (EACC) the powers to take their cases to court and prosecute instead of ODPP.
The judiciary said that the mandate of DPP is firmly settled beyond debate by Article 157(6)(a), (b) and (c) of the Constitution, that DPP is the only one who can institute, undertake, take over and continue all criminal proceedings in any court (except a court martial for all the offences including offences under Anti-Corruption and Economic Crimes Act (ACECA).
It added that “With leave of the court, and before judgment he can discontinue any criminal proceedings that may have been Instituted or taken over by the DPP before the creation of the ODPP under the 2010 Constitution. It is as clear and simple as that. Any media reports to the contrary are, therefore false and misleading.”
The judiciary said that some of the media misunderstood the 2013 EACC case as the appellant and James Makura M’Abira as the respondent.
The five-judge-bench in the case comprised of judges William Ouko, Martha Koome, Asike Makhandia, Agnes Murgor and Jamilla
It was an appeal case from the ruling of the High Court of Kenya at Nyeri by Justice J. Wakiaga dated October 25, 2012.
Background of the case
James Makura M’Abira a Senior State Counsel, the Respondent employed by the State Law Office and based at Nyeri Office, was on June 22, 2011 arrested and charged with three counts of soliciting for a benefit; that he corruptly solicited for a benefit of Ksh. 50,000 from Peter Chaina Magere as an inducement so as to recommend prosecution in a case that was referred to him for perusal and advise by the CID. The second and third counts similarly stated that the respondent corruptly received Ksh. 25,000 from Magere as above.
M’Abira was arraigned in court and charged with the above offences at first before the Chief Magistrate’s Court in Nyeri but the matter was later transferred to Embu Chief Magistrate’s Court in AC No 3 of 2012. M’Abiria filed a Petition before the High Court in Nyeri challenging the said charges which he alleged contravened certain articles of the Constitution. The said charges were however withdrawn and the respondent was charged afresh before the same court in Anti-Corruption Case No 9 of 2012 after a decision was made by the Director of Public Prosecutions (DPP) one year later to do so.
In summary, M’Abira’s argument was that the charges were unlawful and unprocedural because the Kenya Anti-Corruption Commission arrested him and took him to the Police who prosecuted him before getting written consent from the AG. The High Court ruled against M’Abira, noting that in 2011, the DPP was under the AG and Police Prosecutors were therefore under the AG. There was therefore no need for ‘written consent’ from the AG because that would mean the AG writing to himself.
Moreover, once the ODPP was established in 2012, the ODPP withdrew the case and charged him afresh. The matter was thus squarely settled since ODPP is the office mandated to institute prosecutions. The High Court and the Court of Appeal were therefore in full agreement that M’Abira’s matter was properly before the court.
The respondent’s complaints in more details were:
- a) That he was arrested by officers from the defunct Kenya Anti-Corruption Commission (KACC) who had usurped the role from the Attorney General (AG) as he was the prosecutor then, until that role was assumed by the DPP in June, 2012. Even when the DPP wrote a letter dated 4th June, 2012 directing the withdrawal of the matter and ordering fresh prosecution, the respondent’s position was that the whole prosecution should be declared null and void.
- b) That KACC arraigned him in court on 29th June, 2011 without making a recommendation to the AG as was required under the provisions of Section 35 of the ACECA and that he was not supplied with the relevant materials such as the visual and audio tape recordings to enable him prepare for the hearing which was a breach of his right to a fair trial;
- c) That the recommendation which was made to the ODPP pursuant to Section 11 of the Ethics and Anti- Corruption Commission Act of 2011 after one year since the respondent was arraigned in court could not cure the defect as his rights were already violated.
- d) The charges brought against him were irregular, unprocedural, unlawful and null and void.
The matter escalated to the Court of Appeal by the Ethics and Anti-Corruption Commission emanates from a Ruling by High Court Judge Wakiaga, J. delivered on 25th October, 2012. The respondent’s prayers were mainly, for a declaration that the criminal charges he was facing in Embu Chief Magistrates’ Court in AC NO. 3 OF 2011 – Republic vs. James Makura M’Abira were unconstitutional; judicial review orders in the nature of certiorari (order by a higher court to review a case tried in a lower court) to remove the said criminal proceedings to the High Court and quash them, and finally compensation for breach of his constitutional rights to a fair trial and equal treatment before the law.
The matter before the Court of Appeal raised two issues that is; whether the High Court should have quashed the criminal charges that were laid before the respondent in the Chief Magistrate’s Court in AC No. 3 of 2011 and whether the learned Judge exercised his discretion wrongly in awarding the respondent the said damages (he was awarded Ksh. 100,000).