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Daily Nation : February 16th 2014
24 | Sunday Review PRECEDENT| Ruling will have major implications for ongoing and future cases on corruption Judges rebuke DPP for ‘selective’ prosecution T BY KENFREY KIBERENGE @KenKiberenge firstname.lastname@example.org wo High Court judges have launched a scathing attack on the Director of Public Prosecutions (DPP) in a judgment that will have major implications for ongoing and future corruption cases. Justices Wesley Korir and George Odunga faulted the DPP for “selective” and “discriminative” prosecution of former Kenya Pipeline Corporation Managing Director George Okungu and Mary Kiptui, a former Kenya Pipe- line company secretary. The duo was charged in 2009 with abuse of office over the sale of KPC houses to members of staff and the National Intelligence Service. Mr Okungu and Ms Kiptui are accused of authorising the sale without approval from the Treasury and the Energy ministry. Further, the two are accused of failing to follow the Exchequer and Audit (Public Procurement) Regulations, 2001, which were applicable before the enactment and coming into force of the Public Procurement and Disposal Act No.3 of 2005. Mr Okungu is said to have bought one of the houses at Nairobi’s Gigiri Estate in October of 2006. The duo moved to the High Court in 2009 to stop the suit, saying the sale had been approved by the board of directors, but the DPP had settled on the two and went on to enlist some board members – who had participated in the approval − as witnesses. To hold that the discretion given to the DPP ought not to be questioned by this court would be an abhorrent affront to judicial conscience” Ruling by Justices Korir and Odunga On February 7, 2013, Justices Odunga and Korir declared the case unconstitutional. The KPC board consists of the chairman, the chief executive, the Energy and Treasury PSs, not more than seven other members, and the Inspector General (State Corporations) and the Attorney-General who are ex-officio members. But one of the prosecution witnesses was Mwanyengela Ngali, then KPC board chairman, and who the two said executed the transfer of one of the properties for which they were facing charges. The prosecution had also lined up then Energy permanent secretary Patrick Nyoike as its witness, although he is said to have written a letter on October 23, confirming that KPC Board had decided to dispose of the residential houses. In his defence, the DPP ar- gued that the prosecution was entitled to line up whatever witnesses it deemed necessary to not only prove its case but to also give the court relevant information for a fair decision. “To turn round and institute criminal prosecution against the Petitioners (Okungu and Kiptui) while making the very persons who authorised the Petitioner’s action into prosecution witnesses, in our SUNDAY NATION February 16, 2014 view, amounts to selective and discriminatory exercise of discretion,” the judges ruled. They went on: “It is even worse where the same persons being shielded could have been potential witnesses for the Petitioner and who have, with a view to being rendered incompetent as the Petitioner’s witnesses, have been in a way enticed to be prosecution witnesses.” Mr Okungu and Ms Kiptui also argued that as a member, the Attorney-General was party to board resolutions, hence it would be unfair for him to be allowed to conduct prosecution for the acts he himself authored and implemented. In his defence, the DPP ar- gued that his office is legally empowered to use discretion while discharging its duties. But the judges said exercis- ing discretion with a view to achieving certain unimportant goals other than those legally recognised constitutes an abuse of the legal process, and the court can intervene and bring to an end such wrongful exercise of discretion. “To hold that the discre- tion given to the DPP to prefer charges ought not to be questioned by this Court would be an abhorrent affront to judicial conscience and, above all, the Constitution,” the judges noted. Not absolute The judges said the terrain under the current prosecutorial regime has shifted and that the discretion given to the DPP is not absolute. Rather, it must be exercised within certain laiddown standards provided under the Constitution and the Office of the Director of Public Prosecutions Act. Accordingly, the DPP must avoid abuse of the legal process. According to the DPP Act, other principles that should be adhered to include diversity of the people of Kenya, impartiality and gender equity, the rules of natural justice, promotion of public confidence in the integrity of the office. Judiciary sources indicate that the DPP’s office may have decided to proceed with corruption cases, even if he was dissatisfied with the evidence, to ward off criticism by the Ethics and Anti-Corruption Commission (EACC). FILE | NATION Justice George Odunga who last week censured the DPP for what he termed “selective and discriminatory” prosecution.
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