The barrage of criminal cases that have been dropped by the Office of the Director of Public Prosecutions (DPP) recently have predictably provoked a raging debate about the integrity and predictability of our system of law enforcement.
It is a very pertinent issue because the issue at stake is public faith in the prevailing law enforcement regime.
We often forget that commerce and business can only thrive where you have a viable legal framework and where the law is enforced without political favouritism or arbitrariness.
The merits and demerits of the decision by the DPP to withdraw so many cases within a very short period and the fact that episodes have been timed to happen hardly months after the advent of a new political dispensation should not be the biggest of our concerns.
What should concern us most is the risk of creating a crisis of public faith in the criminal justice system. It is the arbitrariness of the decisions on whether to withdraw cases or not that is worrisome.
What we have been fighting to achieve since 2010 is a prosecutorial system that has constitutional restraints on its powers but that is insulated from day-to-day political pressures.
The picture you see is that we are yet to graduate from the practice where the criminal justice system can be used as a tool for disciplining troublesome constituents or rewarding supporters of the high and mighty. Clearly, we still have a lot of work to do in terms of reforming our systems to a level where reforms can outlive changes in the leadership of the country.
I found myself reflecting on a 2018 prosecution where three top senior executives of the Moroccan fertilizer multinational conglomerate, OCP Ltd, were dramatically arraigned — together with six top executives of the Kenya Bureau of Standards — charged with murder. Careers of the six Kenyan citizens, including the former CEO, Mr Charles Ongwae, were also prematurely terminated.
What sin had the nine individuals committed to be charged with murder? According to the charge sheet, they ‘ with intent to unlawfully cause the death of persons residing in Narok and Eldoret areas, unlawfully released 5,846 kilograms of fertiliser that contained mercury — a substance that endangers human life’.
For months, this murder case dragged in court because the prosecution would not accept the plea by the Moroccans that the fertiliser in question be subjected to tests by independent laboratories in Europe and USA. The fertiliser lay at a warehouse in Mombasa for nearly two years.
Charged with murder
Then came the climax of the saga. In May 2019, OCP Ltd signed a plea bargaining agreement with the DPP that gave them unconditional rights to remove the fertiliser from the warehouse where it had been kept. A consignment of fertiliser that had been condemned as laced with mercury was now deemed fit for use. The three Moroccans who had been charged with murder were also released unconditionally.
What reasons did the DPP give for entering into a leniency deal with the Moroccans? First, the investigators had belatedly realised that the decision to prefer murder charges against the Morrocans was made without the benefit of full facts. Secondly, that investigators had dragged the three Morrocans to court without hearing them?
Which begs the question: How do you hold hundreds of millions of shillings of goods belonging to an investor and foreign company, charge its senior executives who have not as much as set foot in Kenya with murder, and then belatedly rush to court to plead that you were wrong to charge them with murder in the first place? Arbitrary exercise of power?
But it was the manner in which the DPP handled the cases of the six Kenya citizens who were charged with murder with the Moroccans that reeked of arbitrariness to the extreme. With the case against the Moroccans dropped, one would have expected that the Kenyans would also be set free.
Laced with mercury
After all, the murder case was based on the allegation that they colluded with OCP Ltd to allow fertiliser laced with mercury into the country, thus exposing users in Narok and Eldoret to sickness — even death. As I write, Charles Ogega Ongwae, Eric Chesire Kiptoo, Peter Kinyanjui Ndugu, Martin Muswanya Nyakiamo, Pole Mwangesi, Erick Kariuki Kirimi and Benson Oduor Ngesa, are still in court facing murder charges.
Yet the fertiliser that was said to be unfit for human consumption was indeed released from warehouses in May 2019 and sold by OCP to the public. All seven citizens of Kenya who have been in and out of courts since 2018 paying expensive lawyers to defend them lost their jobs.
OCP Ltd has recently become the biggest player in the subsidised fertiliser space in Kenya. Theatre of the absurd. We can only wait and see how and whether the prosecutions will proceed.