I don’t think there is any greater measure of abuse of power in Kenya than withdrawal of serious cases against influential people by the Prosecutor’s office. It is a dangerous precedent being set within the criminal justice system and in society.
The rule of law is facing assault from the very people who should be its guardian and protector. The essence of rule of law is that everyone is to be treated equally before the law.
The attempts to blatantly interfere with and withdraw serious cases facing Cabinet ministers, senior government officials and anyone with financial influence and “celebrity” status in Kenya, goes to show that justice only belongs to the upper echelon in Kenya. Sadly, a two-tiered legal system is here to stay at the behest of impunity.
The Prosecutor’s office knows that the withdrawal of cases of murder and corruption in particular concerning senior officials and other influential people is not only immoral but unjust. Nothing inspires the Prosecution from withdrawing serious cases involving politicians and influential people than impunity.
Prosecution can twist the law all it wants on withdrawing cases to justify its act, but it is still impunity. Even if the law allows Prosecutor’s office to withdraw criminal cases, this must be done in public interest. There is no public interest being protected in the withdrawal of some of these cases.
The ODPP must take cognisance of the fact that it brings criminal cases to court in public interest. Withdrawing them later to protect politicians or Kenyans of influence is in itself corruption.
The criminal justice system is mandated to protect the interests of victims as much as those of the offenders. However, when it comes to ministers and other influential people, the interests of victims take a back seat despite the gravity of a case or the impact on victims, their families and the country’s image. The ODPP clearly believes it is paid taxpayers money to protect only the super-rich and trample on the rights of poor victims. Withdrawal of serious cases out of court before their completion is unconscionable. There is no rhyme or reason to the withdrawal of particular cases and not others by ODPP. Conscionability in law is crucial for all actors in the criminal justice system to ensure that all, not just some cases, are dealt with fairly and justly. The actors in the ODDP’s office and the judiciary cannot claim to have acted conscionably when they pick and choose whom to save from the gallows depending on class, race and creed.
Two-tier legal system
A two-tier legal system is “inequitable, immoral and unjust”. Why should Kenya’s criminal justice system choose to create a two-tier legal system when their mandate is to ensure that everyone is treated equally before the law? This is a question that needs to be answered by none other than the Chief Justice of the Republic of Kenya. Article 159 of the Constitution stipulates as follows: “(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution. (2) in exercising judicial authority, the courts and tribunals shall be guided by the following principles, (a) Justice shall be done to all, irrespective of .”
That is the law! However, the characteristics of the current courts and the Prosecutor’s office of withdrawing serious cases involving influential people do not correspond with the objectives of article 159.
The two offices have taken a roaring fire to article 159 and adopted abuse of power as their modus operandi.
Although the law allows the Prosecution to halt cases, this power is clearly now being abused and used in favour of influential people in society. It is the responsibility of the courts even then and in light of perpetual abuse of legal process by state agencies, to thoroughly interrogate the intention of withdrawing serious cases out of court. There are striking similarities between the many cases being withdrawn out of court by ODPP.
Firstly, they involve people of influence.
Secondly they, more often than not, revolve around serious cases of corruption, murder or rape. These are not the types of crimes that ordinary people could get away with.
The tacit immunity being given to politicians and influential people in Kenyan society despite heinous crimes committed risks erosion of the rule of law. If the two-tier legal system is the preferred model, then the law must make that clear. Otherwise, all cases must be heard to full conclusion regardless of the class of the accused, or they should all be withdrawn.
If Kenya does not want lawlessness within the criminal justice system and society, it must stop the actors within CJS from abusing their powers by withdrawing serious criminal cases out of court prematurely. When it comes to due process within the courts, let the guiding principle be article 159 (a) that says, “Justice shall be done to all, irrespective of status.”
It’s only fair, equitable and moral.
Ms Guyo is a legal researcher. [email protected] @kdiguyo