By: Joseph Mutua Ndonga
Worth Noting:
- The timing of withdrawal was tellingly given it happened in the eve of their vetting by National Assembly committee on appointment chaired by Speaker Moses Wetangula.
- Reports indicated one of the cases was withdrawn by the complainant and the other one by the Office of the Director of Public Prosecution [ODPP].
- Get me right. I’m not insinuating that the two cabinet nominees were guilty. This is because their cases had not been conclusively heard and hence no determination had been made.
- As a patriotic and law-abiding citizen, allow me to say. I strongly believe in the principle of presumption of innocence until proven guilty. The principle is applied in many jurisdictions across the world including the international criminal court [ICC].
For quiet sometimes I have been asking myself these questions. Does the law allow a complainant to withdraw a criminal case? If yes, at what stage can this happen? For instance, can the case be withdrawn when the proceedings are on course?
Although I stand to be corrected, my considered view is that this cannot happen. In civil cases, however, things are different. The parties involved can be allowed to do so once they agree to sort out the matter out of court.
Again here, it is not a matter of waking up one morning and your request is granted. The parties must file an application listing the grounds. Once convinced, the judicial officer handling the case will allow them to have their way but with certain conditions attached.
My queries had been triggered by the events of recent past in which a number of complainants had successfully withdrawn their criminal cases against high profile personalities.
Some of these applications would be certified urgent in order to ensure they had been dealt without any delay. The two criminal cases in point are those filed against two cabinet nominees.
The timing of withdrawal was tellingly given it happened in the eve of their vetting by National Assembly committee on appointment chaired by Speaker Moses Wetangula.
Reports indicated one of the cases was withdrawn by the complainant and the other one by the Office of the Director of Public Prosecution [ODPP].
Get me right. I’m not insinuating that the two cabinet nominees were guilty. This is because their cases had not been conclusively heard and hence no determination had been made.
As a patriotic and law-abiding citizen, allow me to say. I strongly believe in the principle of presumption of innocence until proven guilty. The principle is applied in many jurisdictions across the world including the international criminal court [ICC].
In our context, is this principle being abused? If yes, can we review it and introduce necessary amendments? Well, this is a debate for another day.
For now, my immediate concern is hinged on the decisions to withdraw their cases. Was this done within the law? If not, who should bear the blame? Is it the judicial officer, DPP or complaint?
If my views are sought, I would be the last person to support the withdrawal of criminal cases. As we know, cases of criminal nature are the most serious crimes under our law. It is, therefore, foolhardy to make easy for a criminal to have the way; this would amount to back-peddling on gains we have made.
When the matter is in court, you expect two things to happen. You either win the case or lose it. The office of DPP enjoys exclusive power to file and prosecute the cases.
The situation in lawlessness countries is different. One can commit a heinous crime and get away with it. Here, money and political connections talk at the expense of truth and justice.
Kenya will never go there. President William Ruto’s sentiments can attest to this.
He has been telling all the arms in criminal justice system to perform their jobs in a professional manner and in full compliance with the constitution and other laws of the land. You have no option. Kenyans are watching you. They want to see you doing jobs they bestowed on you.
The message here is clear. If you fail to do the job, you should ship out. I hope and pray that they would heed Dr Ruto’s call. The president cannot run the government alone. So, each arm should stand up and discharge its constitutional mandate.
The arms are created by the constitution and, as we know, they are independent. Therefore, one would not expect them to be dictated or directed.Â
Joseph Mutua Ndonga is a writer and a political commentator based in Nairobi
