dpp haji resolve to fight corruption sees several …€¦ · of a sitting judge to avoid conflict...

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The ProsecutorA NEWSLETTER FROM THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

DPP HAJI RESOLVE TO FIGHT CORRUPTION SEES SEVERAL HIGH RANKING OFFICIALS ARRESTEDAND CHARGED WITH CORRUPTION by Beatrice Omari

The Director of Public Prosecutions (DPP) Noordin Haji, means business in the war against corruption, impunity and organised crime.

Seven months after taking over as the DPP, Haji has intensified the war against graft with the country witnessing several top government officials being arrested and charged in court with corruption related offenses. Those affected have included; cabinet secretaries (CSs), permanent secretaries (PSs), governors, county government officials, and members of Parliament (MPs). Others include, chief executives and directors of state departments, agencies, top companies, banks and entities.

The DPP’s first assignment after taking office was to order for the arrest and prosecution of former Youth Affairs Principal Secretary (PS) Lilian Omollo, former National Youth Service (NYS) Director General Richard Ndubai and

52 other accused persons in regards to the alleged theft of KShs 8 billion at NYS.

Omollo and the co-accused persons were arraigned in court soon after and pleaded not guilty to several counts of corruption.

The accused persons were remanded at the Langata Women’s Prison and Industrial Area as they waited for their bond application ruling which was denied. However they got a reprieve after the High court freed them on KShs 5 million bond or alternative cash bail of KShs 1 million each. The accused persons were also ordered to deposit their passports in court. The DPP further called for thorough scrutiny of the sureties they presented for their freedom to ensure that they are not proceeds of crime. Trial of their cases is in progress.

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EDITORIAL TEAMChairperson - Mrs Dorcas Oduor, OGWEditor-in-Chief - Beatrice Omari Members 1. Mary Mwenje (SADPP)

2. Jackline Njagi (SPPC)3. Wangui Gichui (SPPC)4. MaryAnn Mwangi (SPPC)5. Duncan Ondimu (PPC)6. Eunice Oloo (PC1)

7. Rose Kipyego (SIO)8. Jemima Aluda (SPC)9. Samita Mangoli (PC1)10. Bernard Ramoka (IOII)Photography - John Njue/KNA

INSIDE

FROM THE EDITOR’S DESKDear Reader,

We are delighted to introduce this first edition of the Prosecutor. We intend to make it a regular publication and to use it to keep you in touch with news and developments that relate to the implementation of the ODPP

mandate. In this and future publications, we shall strive to publish major ODPP achievements, activities and events. We shall also keep you informed on emerging jurisprudence on legal and criminal matters.

We are keen to respond to the interests of our readers and look forward to your feedback and comments on this first edition and other issues you may have relating to the ODPP mandate. You can reach us on this email address: [email protected].

3. MESSAGE FROM THE DIRECTOR OF PUBLIC PROSECUTIONS (DPP)

5. DPP HIRES QUEENS COUNSEL TO PROSECUTE DCJ MWILU’S GRAFT CASE

6. DPP HAJI TO PETITION PARLIAMENT TO REVIEW ANTI-CORRUPTION ACT

7. NEWLY RECRUITED ODPP STAFF

GRADUATE AFTER INTENSE INDUCTION TRAINING

9. THE ODPP ESTABLISHES A PROSECUTORS’

TRAINING INSTITUTE

11. CS MATIANG’I HAILS ODPP 12. WHAT IT TAKES TO BE A PROSECUTOR 13. DPP ESTABLISHES DECISION TO CHARGE TASK FORCE

14. ALL FOR JUSTICE REMAND CASE REVIEW INITIATIVE

16. PICTURE SPEAK 2O. FIRST DAY IN COURT

21. AWARDS

22. PLEA BARGAINING IN KENYA: A SYNOPSIS

24. DPP KENYA TO HOST EAAP SECRETARIAT

25. COURTS ROUND UP

27. ODPP SHOW CASES BEST PRACTICES IN COMBATING WILD LIFE CRIMES

28. CRY FOR JUSTICE UNDER SEXUAL OFFENCES ACT

29. THE DPP ADVOCATES FOR ENHANCED

INSTITUTIONAL IMPLEMENTATION OF GOVERNANCE AND ETHICAL STANDARDS

30. ODPP OFFICERS RECEIVE PRESIDENTIAL

AWARDS


MESSAGE FROM THE DIRECTOR OF PUBLIC PROSECUTIONS (DPP)

I am pleased to present the first issue of the ODPP E-newsletter, the Prosecutor.

The Prosecutor will serve as an additional communication channel between ODPP, our clients and stakeholders and will contain information relating to the implementation of our mandate and updates on our accomplishments, milestones and challenges.

This important publication could not have come at a better time as we mark a most important stage of our history; implementation of our second Strategic Plan (2018-2022), whose central theme will be to ensure quality prosecution service. We intend to carry with us the lessons learnt and gains made over the last seven years since the establishment of the ODPP to build more partnerships, enhance public engagements and build capacity for provision of quality services to the public.

We started small, with only 13 offices in the Country and 93 Prosecution Counsel. Presently we are in all 47 counties with 610 Prosecution Counsel (a 736% increase), the highest of any country in our Region. Further, we have taken over prosecutions from the National Police Service, a move aimed

at professionalising and taking full control of the prosecution service.

I am glad to report that the ODPP has continued to attain qualitative and quantitative increase in prosecutorial efficiency and capacity. We achieved an overall conviction rate of 92.3% compared to 82% in 2013-2014 and 75% in 2011-2013, indicating a steady improvement over the years. The Office further decentralised its prosecutorial services to all the 121 court stations in the country, thus enhancing access to justice.

The ODPP has achieved a number of milestones in its transformational journey towards the realisation of its Vision and Mission, and indeed in contributing meaningfully to the Country’s development agenda as envisaged in the Vision 2030. One such milestone is the establishment of the Prosecutors Training Institute (PTI).

Seventy-seven newly recruited prosecution and support staff recently graduated after undergoing a vigorous eight weeks induction and trial advocacy training organized by the PTI.

On the fight against corruption, impunity and organised crime, we are determined to fight the vices and call on our stakeholders and all Kenyans to join hands with us. I take this opportunity to appreciate ODPP staff, development partners, stakeholders, and the general public for their continued support in assisting the Office continue to provide quality prosecution service.

As an Office, we remain firm and bold in implementing our Mandate fairly, effectively, efficiently and without fear or favour as we combat crimes especially corruption and the economic crimes that bedevil our Society. To this end I make my pledge.

NOORDIN. M. HAJIDIRECTOR OF PUBLIC PROSECUTIONS

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Among other key or high profile cases that DPP Haji has prosecuted in court in the past few months include, the Kenya Bureau of Standards (KEBS) Managing Director Charles Ongwae and other accused persons charged with importation of substandard fertilizer and fake standardisation stickers. Ongwae and his co-accused were released on KShs 10 million bond with surety of KShs 3 million or an alternative cash of bail of KShs 2 million each.

Another high-ranking official who was arraigned in court is former Kenya Power and Lighting Managing (KPLC) Managing Director Ben Chumo alongside other accused persons who were arrested and charged with procurement of substandard transformers worth KShs 409 million. They were freed on a KShs 3 million bond or an alternative cash bail of KShs 1 million.

Patel/Solai Dam owners Perry Mansukh Kansagara and General Manager Vinoj Jaya Kumar and other accused persons were also charged with 48 counts of manslaughter at the Naivasha Law Courts. They denied the charges and were released on KShs 5 million bond with similar surety or an alternative cash bail of KShs 2.5 million.

Busia Governor Sospeter Ojamong and other top county officials were charged with graft related offenses and released on KShs 2 million bond or an alternative cash bail of KShs 1 million while former Nyandarua Governor Daniel Waithaka and other former county officials were charged with flouting procurement laws leading to the loss of KShs 50 million. The Court released them on a KShs 10 million bond with a surety of similar amount. Former Nairobi Governor Evans Kidero and 11 other former county officials were charged with mismanagement and embezzlement of public funds.

National Lands Commission (NLC) Chairman Mohamed Swazuri alongside sixteen accused persons were charged in court with the offense of conspiring to defraud the Government of KShs 221, 375 million through dubious allocation of Standard Gauge Railways (SGR) plots. Swazuri also faced charges of abuse of office, breach of trust and unlawful acquisition of public property. He

was released on a KShs 6 million bond with a surety of similar amount and an alternative cash bail of KShs 3.5 million.

Other high profile persons being prosecuted for graft include Deputy Chief Justice Philomena Mwilu for abuse of office, forgery and failure to pay taxes among other charges; former Broadcasting and Telecomm PS Sammy Itemere, Lugari MP Ayub Savula and 22 others charged with conspiracy to defraud Government Advertising Agency (GAA) of KShs 122 million; former Sports CS and two others charged with embezzlement and mismanagement of KShs 55 million during 2016 RIO Olympics and former KPLC MD Ben Chumo and current MD Ken Tarus over fraudulent procurement of faulty transformers.

Kenya Pipeline Company (MD) Joe Kimutai Sang and 22 others have also been charged with misappropriating KShs 2 billion in the course of the procurement and construction of Kisumu Oil Jetty. The National Hospital

Insurance Fund (NHIF) CEO Geoffrey Gitau Mwangi and former CEO Simon Lemminte ole Kirgotty and four others have also been charged with misappropriation of funds, irregular award of tenders and information communication technology manipulation leading to the loss of KShs 1.1 billion at NHIF.

DPP Haji stated that he is fearless in the war against graft, impunity and organised crime. He reiterated that he will go for the ‘small fish, big fish’ and even the whales and has sufficient evidence that may lead to convictions in most of the cases.

The DPP however lamented his frustrations over the fact that accused persons not only continue to be in office but also use the said offices to subvert investigations, intimidate witnesses and undermine the trial process.

Established under article 157 of the constitution, Mr Haji‘s office is working closely with the Ethics and Ant-Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI), the Judiciary, the National Police Service and other agencies in the fight against corruption.

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DPP Haji stated that he is fearless in the war against graft, impunity

and organised crime... he will go for the ‘small fish, big fish’ and even the

whales...


The Director of Public Prosecutions Noordin Haji has appointed the Queen’s Counsel (QC) Khawar

Qureshi to lead the prosecution of the graft case facing Deputy Chief Justice Philomena Mwilu.

The DPP explained that he hired the QC to handle the complex case facing the DCJ, the first of its kind in Kenya of a sitting judge to avoid conflict between his office and the judiciary and also to ensure transparency and independence in dealing with the case.

“There are a number of cases of great public importance involving state and public officers. To ensure transparency and independence in dealing with these cases, build jurisprudence, ensure pragmatic interpretation of the Constitution, and to avoid conflict between the ODPP and the Judiciary, we have deemed it prudent to engage private foreign counsel to deal with these matters,” he said.

The DPP clarified that his office opted to appoint a special prosecutor through single sourcing after advertising for private legal counsel but failed to find suitable candidates due to the unique nature and complexity of the case.

Professor Qureshi has taught Commercial Law at Cambridge University, Public International Law at Kings

College London, and was appointed a visiting Professor in Commercial Law at the University of London in 2006. He was appointed a Deputy High Court Judge in 2013 and is a bencher in middle temple.

Professor Qureshi’s areas of expertise include: Commercial Litigation, Public International Law, Arbitration, Administrative and Public Law and Human Rights. He has consistently been recognised by the legal directories as a leading advocate who has made extensive appearances, for and against more than 60 governments internationally. He was an ‘A’ Panel UK Government Treasury Counsel from 1999-2006 and has been Chairman of The City UK Legal Services Group which is designated by the UK Ministry of Justice as the lead organisation to promote UK legal services internationally. He practices Public International Law in many Commonwealth countries. The QC has also published numerous books and a frequent contributor to Journals.

Meanwhile the DPP has sought the disqualification of senior counsels James Orengo and Okongo Omogeni from representing the DCJ.

DPP HIRES QUEENS COUNSEL TO PROSECUTE DCJ MWILU’S GRAFT CASE By Beatrice Omari

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DPP HAJI TO PETITION PARLIAMENT TO REVIEW ANTI-CORRUPTION ACT

The Director of Public Prosecutions Noordin Haji (DPP) now wants the Anti-Corruption and Economic

Crimes Act amended for state officials charged with corruption and other serious offenses forced to step aside pending hearing and determination of their cases.

DPP Haji said that he will petition Parliament to amend Section 62 (5) and sub-Section 6 of the Anti-Corruption and Economic Act to force state officers charged with corruption and other serious crimes to step aside. He noted that their continued stay in office on full pay and benefits after being charged undermines justice because accused persons use their offices to intimidate witnesses and interfere with investigations.

“We must have standards and those standards must be applied across the board,” the DPP said.

He proposes that if found innocent, the state officials will be paid in lump-sum for the period they will not have been in office.

Meanwhile, the DPP will be moving to the Court of Appeal to challenge the Anti-Corruption High Court ruling in Criminal Revision Case No. 13 of 2018 that allowed Professor Mohamed Swazuri, Chairperson of the National Lands Commission (NLC) to remain in office pending hearing and determination of

Anti-Corruption Case No. 33 of 2018.

Some of the state officers who have continued to hold office even after being charged in Court include Deputy Chief Justice (DCJ) Philomena Mwilu, Chairman National Land Commission Mohammed Swazuri, Busia and Migori Governors Sospeter Ojaamong and Okoth Obado respectively and MPs Samuel Arama (Nakuru West), John Waluke (Sirisia), Ayub Samula (Lugari) and James Mwangi Gakuya (Embakasi North).

By Bernard Ramoka

The DPP through Secretary of Public Prosecutions (SPP) Dorcas Oduor told a five judge bench comprising of Hellen Omondi, Mumbi Ngugi, Chacha Mwita, Francis Tuiyot, and William Musyoka that Senator Orengo and Omogeni enjoy parliamentary privilege to question the DPP in the Senate Committee and their involvement in the Petition amounts to conflict of interest.

Further, in a bid to strengthen the capacity of the ODPP and in light of the increasing complexity of crime, the DPP has prequalified three individuals to provide legal services to the office.

The three James Muruthi Kihara, Philip Kipchirchir Murgor and Taib Ali Taib were prequalified following a public advertisement on 25th September 2018 requesting those interested to apply and be considered

for pre-qualification to join the panel of the ODPP lawyers to provide legal services. Fifteen applications were received and processed as per the set criteria and the three were successfully prequalified.

The Secretary of Public Prosecutions (SPP) Dorcas Oduor said that the responses were not as expected and

therefore the DPP will re-advertise to build a strong portfolio of special prosecutors to assist the ODPP.

The Secretary of Public Prosecutions (SPP) Dorcas Oduor said that the responses

were not as expected and therefore the DPP will re-advertise to build a strong

portfolio of special prosecutors to assist the ODPP.

“We must have standards and those standards must be applied across the

board,” the DPP said.



NEWLY RECRUITED ODPP STAFF GRADUATE AFTER INTENSE INDUCTION TRAININGBy Beatrice Omari and Bernard Ramoka

Namibia’s Prosecutor General Martha Imalwa has urged newly recruited Office of Director of Public Prosecutions (ODPP) staff to exercise integrity, responsibility, diligence, respect and honesty in their work.

She said that prosecution work is not for the faint hearted or lazy people but for the strong hearted who are ready to discharge their duties without fear, favour or prejudice guided by the law and the professional code of conduct in their work.

Speaking at the Kenya School of Monetary Studies (KSMS) during the graduation ceremony for 77 newly recruited ODPP staff, the Namibian Prosecutor General also asked the new staff to exercise and respect human rights. “You are the people’s lawyers and you must show respect to human rights,” she said.

Imalwa urged the prosecutors to dedicate their lives to serving Kenyans by not engaging in business while in service. ‘Dedicate your life to serving the public and when you have served diligently, then retire and do business, she said.

Adding that a good prosecutor must be a good researcher, Ilalwa urged that prosecutors engage in research to build strong case that can stand trial. “As prosecutors, you must not only rely on what the police provide in terms of evidence but go out of your way to ascertain if the evidence is sufficient,” she advised.

She urged them to ensure that they strike a balance between public and private life to avoid burnout. The new staff (52 prosecution counsel and 25 support staff) graduated after undergoing a two months training.

In his remarks, the Director of Public Prosecution (DPP) Noordin Haji said that the graduation marked the full operationalization of the Office of the Director of Public Prosecution’s Prosecutors’ Training (PTI) and that the training was the most intense of trainings ever offered to prosecutors in the history of the ODPP.

He described the induction as unique, well thought out, thorough, detailed and enriched by some of the legal profession’s best minds. He added that the inductees had the privilege of receiving instruction from practicing judicial officers, prosecutors and private practitioners both nationally and internationally. He was in no doubt that they had been adequately prepared to discharge their prosecutorial mandate.

The DPP also said that he was satisfied with the high standard in the training programme and thanked the facilitators from agencies close to the ODPP, Lawyers Without Borders and the ODPP resource persons for heeding the call and enriching the inductee’s knowledge

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with their presentations, as well as sacrificing their time to prepare and deliver the training programme.

The DPP urged the graduands to be people of integrity and to go out and serve the public saying that, “…those to whom much is given, much is expected. Great expectations have been placed on your shoulders. You leave this induction today better equipped and prepared than anyone before you in a similar position. I charge you to go forth and deliver on the promise.”

He challenged them to be continually guided by the ODPP values of respect and promotion of human rights; integrity and ethics; professionalism; fairness and impartiality; courtesy and teamwork saying that they are the ODPP creed for which they will be expected to stand, defend and uphold, both in their public and private lives.

...the role of a prosecutor has changed over the years from the traditional

case-based approach, which focused exclusively on the investigation and

prosecution of crimes to include proactive, innovative solutions to

challenges facing the criminal justice system.

He said that in the course of their work, the new prosecutors will be required to make decisions in exercise of the prosecution mandate and challenged them to be bold and firm in their decision making and ensure that they make decisions that they can defend.

The DPP warned against unethical behaviour saying that corruption and bending of rules to meet illegal ends shall have no place within the ODPP. “The duty bestowed upon

you as a prosecutor does not accommodate corruption and neither will I,” he warned.

He hoped that the skills acquired, and knowledge impacted, will go a long way in ensuring excellence, efficiency and effectiveness in all spheres of the graduands professional lives.

In her remarks, the Secretary Public Prosecutions (SPP) Dorcas Oduor said that the ODPP has evolved tremendously over the last seven years. From a mere department in the Attorney General’s (AGs) Office in 2010 to an Independent Constitutional Office with four thematic departments and a support services department; 18 thematic divisions and several units. From just 73 counsel in 2010 to about 700 counsel today and from just 12 field stations to being in all the 47 counties and 120 court stations.

Being the largest law firm in Kenya, the SPP said that the ODPP prosecutes 99% of all court cases and has taken over 100% of the charging process from police prosecutors.

She noted that the role of a prosecutor has changed over the years from the traditional case-based approach, which focused exclusively on the investigation and prosecution of crimes to include proactive, innovative solutions to challenges facing the criminal justice system. These include collaborative crime prevention, alternatives to sentencing, specialty courts and victim support.



Noting that crime has become transnational, international and complex, and that actors and crime scenes have changed to include the virtual world, the SPP underscored the need to embrace new technology, which avails information and evidence to effectively investigate and prosecute crime.

The prosecution counsel and support staff will now be deployed to the 47 counties across the country to discharge the office mandate as enshrined in Article 157 of the constitution.

On his part, Retired Chief Justice (CJ) Benard Chunga urged newly recruited prosecution counsel to observe decorum, good behaviour, and punctuality as the ingredients of good prosecution saying prosecutors are ‘princes’ and ‘princes’ of justice.

The retired CJ urged prosecutors to dispense justice without discrimination by ensuring that justice is rendered in equal measure without fear or favour. Chunga also advised prosecution counsel to be keen when drafting charge sheets noting that a charge sheet is what determines whether a case will result to conviction or not.

THE ODPP ESTABLISHES A PROSECUTORS’ TRAINING INSTITUTE

by Rose Kipyego

The Director of Public Prosecutions (DPP) Noordin Haji has identified continuous professional skills

development as a key re-learning strategy in positioning the ODPP as a leading 21st century prosecutions authority.

The re-learning initiative envisions capacity building, development of curriculum for prosecutors’ training in general and thematic areas, and design of training

manuals as strategies of enhancing and sustaining skills of ODPP staff.

To realise this, the DPP has established a prosecutors’ training institute (PTI) to offer specialised prosecutorial training that is envisaged to enhance execution of the office mandate as stipulated in Article 157 of the

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Outside the ODPP, the PTI will undertake training of officers from

other agencies with delegated prosecution authority; undertake training of other law enforcement

agencies; liaise with external stakeholders and partners in capacity

development and related issues. To ensure consistency in standards of trainings offered, the PTI will also

conduct periodic evaluation of training programmes to ensure relevance,

quality and effectiveness.

Constitution. The Institute will offer a standardised curriculum and enhance skills of prosecutors to prosecute complex and emerging crimes.

The establishment of PTI was informed by a skills gap analysis, which pointed out lack of specialised training for prosecutors apart from the general legal training they undergo before joining ODPP. The PTI will ensure that current and new prosecutors attain high and specialised skills at their different levels of work. The trainings will also impart and impact adherence to national values and principals of governance that include good governance, transparency and accountability.

Further, the PTI will: offer continuous in-house training for Prosecution Counsel; train different cadres of staff to ensure that they are equipped to execute their functions; and conduct research into new and emerging areas in criminal law and the effective administration of justice.

Outside the ODPP, the PTI will undertake training of officers from other agencies with delegated prosecution

authority; undertake training of other law enforcement agencies; liaise with external stakeholders and partners in capacity development and related issues. To ensure consistency in standards of trainings offered, the PTI will also conduct periodic evaluation of training programmes to ensure relevance, quality and effectiveness.

So far, the PTI programme has made commendable milestones. The greatest one being the successful induction and graduation of 77 newly recruited ODPP staff, 52 of them being Prosecution Counsel. The trainees went through an intense eight weeks training on good governance, work ethics and on the ODPP mandate.

A two weeks internship programme at their work stations was conducted to provide the trainees with a feel of what their day-to-day work environment would be.

The Prosecution Counsel underwent specialized technical trainings among them, terrorism and Trial Advocacy. This prepared them to understand the dynamics of terrorism cases and honed their courtroom skills to enable them handle trial from an informed point of view. The Prosecution Counsel also underwent a one week leadership and teambuilding training at the National Police Service Senior Staff College-Emali Campus.

They were trained on finger printing and identification; map reading and identification; identification and safe handling of firearms among other skills necessary for effective prosecution. Prior to the induction program, PTI conducted a training of trainers who played a critical role in the induction program by facilitating the various thematic areas.

So far the DPP has received overwhelming support and goodwill from PLEAD, USDOJ, GIZ, IJM, UK COMMISSION, UNODC, LWOB, ISS and the Indian Government.



CS MATIANG’I HAILS ODPP PERFORMANCE IN JUSTICE SECTOR

Interior Cabinet Secretary (CS) Fred Matiang’i has said that his Ministry will work closely with the Office of

Director of Public Prosecutions (ODPP) in dispensing speedy justice to Kenyans.

Speaking during the graduation ceremony for newly recruited staff at the Kenya School of Monetary Studies (KSMS), Matiang’i said that ODPP plays a crucial role in the justice sector and pledged to donate some of his Ministry resources to support the ODPP mandate, “Moving forward we are going to collaborate with ODPP on key areas in the justice sector,” the CS said.

CS Matiang’i identified decongestion of correctional institutions as one area where his Ministry will work closely with ODPP and other agencies to come up with alternatives to prosecutions to ensure that only accused

p e r s o n s with serious offences are incarcerated saying that it did not make sense to use millions of shillings to take care of petty o f f e n d e r s in the correct ional facilities when

such offences were punishable by fines.

The CS hailed ODPP’s performance since it delinked from the Office of the Attorney General following the

promulgation of the 2010 Constitution and said that the Executive respects the independence of the ODPP and will always protect it.

The graduation ceremony was also graced by the President of thhe Law Society of Kenya (LSK) Allen Gichuhi, Witness Protection Agency (WPA) Director Alice Ondieki and representatives from the Directorate of Criminal Investigations (DCI), the Ethics and AntI- Corruption Commission (EACC) and the National Intelligence Service (NIS).

CS Matiang’i identified decongestion of correctional institutions as one area where his Ministry will work closely

with ODPP and other agencies to come up with alternatives to prosecutions to ensure that only accused persons

with serious offences are incarcerated saying that it did not make sense to use millions of shillings to take care of petty offenders in the correctional

facilities when such offences were punishable by fines.

by Bernard Ramoka

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A prosecutor is a minister of justice who prosecutes criminal matters in court to

ensure a just verdict is arrived at by the end of the trial process by ensuring that criminals are punished while the innocent are set free. The verdict may not necessarily be a conviction.

The purpose of a criminal prosecution is not to obtain a conviction but to lay before the court evidence relevant to what is alleged to be a crime. The evidence must be admissible, credible, relevant and competent. A prosecutor must satisfy the court that the accused is guilty beyond all reasonable doubt otherwise in case of any iota of doubt, the verdict is one of ‘not guilty’ because it is better to let the guilty go free than to let the innocent suffer.

In prosecuting a matter, the prosecutor is guided by the law, admissible evidence and public interest. A prosecutor does not have a ‘client’ in the conventional sense and acts in the public interest. He or she is not the legal representative for victims of crime.

To effectively prosecute a case, the prosecutor must ensure that all the relevant facts, including those favorable to an accused person are presented before the court and that those facts are presented in an ethical, fair, dispassionate, firm and clear manner.

Ideally whatever the results at the end of the case, the prosecutor should be able to say that he has done his best. In the words of a former Attorney General, Justice M.G. Muli: “As prosecuting counsels we never lose or win cases. We only have a burden upon ourselves to prove a case beyond reasonable doubt in criminal cases and on balance of probabilities in civil cases. In this regard, we must place before this court all facts concerning the case and must be fair, honest, frank, courteous and respectful when doing so. In our system, the constitution allows for a conviction and an acquittal, so we should

not therefore strain after a conviction, we must always seek to see that justice is not only seen to be done but that it is done”.

According to the U.S. Supreme Court in Berger v. United States, 55 s. ct. 629 (1935): The role of the prosecutor is different from that of an ordinary advocate because the prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartiality is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one. If the accused is acquitted, the prosecutor should not feel that he has “lost the case” for the State does not “lose” if one of its citizens is acquitted on a criminal charge. The prosecutor should be able to say that the accused was acquitted only because the evidence was insufficient to support a conviction. He should never have to say that although the evidence was otherwise satisfactory he failed to conduct his case properly.

It is the prosecutor’s duty and responsibility to ensure that he/she understands all the facts of the case under prosecution and be able to present them in a clear and logical sequence so that the court can follow the evidence with the minimum of mental effort. A properly presented case enables the court to arrive at the right judgment of whether an accused person is innocent or guilty.

What it takes to be a Prosecutor

DPP ESTABLISHES DECISION TO CHARGE TASK FORCE by Rodah Ogoma


DPP ESTABLISHES DECISION TO CHARGE TASK FORCE by Rodah Ogoma

The Director of Public Prosecutions Noordin Haji has established a Task Force to review the National

Prosecution Policy and establish guidelines and procedures that will provide clarity and consistency on the decision to charge process.

The Task Force, which has representation from critical actors in the Criminal Justice System will be chaired by Mrs Dorcas Oduor who is also the Secretary Public Prosecutions.

The terms of reference of the Task Force include to:1. Review the National

Prosecution Policy and other prosecutorial guidelines to develop a minimum standard on the decision to charge

2. Develop guidelines on alternatives to prosecution

3. Develop standard guidelines on preparation of case files

4. Develop guidelines on the operationalisation of a central intake of cases

5. Develop guidelines on the review of prosecutorial decisions

6. Develop Office of the Director of Public Prosecutions charge sheet formats and information.

The SPP clarified that the decision to establish the Task Force had emanated from the fact that currently, there are no laid down procedures and guidelines to prosecutions or on how to arrive on the decision to charge hence decisions are not uniform or documented.

She said that while ODPP appreciates that there is a National Prosecution Policy, it does not provide

a framework of implementation. This is why there is need to document those matters that must as a necessity inform the decision to charge.

The Task Force has embarked on its assignment and is in the process of rolling out activities that will culminate in a document that will be owned by all

stakeholders. The document is also expected to provide a paradigm shift as, ODPP will from hence forth take charge of the charge sheets and the charging process.

Membership to the Task Force include the Attorney General, the National Police Service, DCI, Judiciary, Law Society of Kenya, Ethic and Anti-Corruption Commission, IPOA and KNCHR

Membership to the Task Force include the Attorney General, the National Police Service, DCI, Judiciary, Law Society of Kenya, Ethic and Anti-

Corruption Commission, IPOA and KNCHR

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ALL FOR JUSTICE REMAND CASE REVIEW INITIATIVEby Christine Nanjala

Kenya’s Vision 2030, under the Social Pillar envisions a society that is just and cohesive through facilitating

equitable application of the law that also eases access to the criminal justice system. To buttress this, the political pillar aims at institutionalising a framework that promotes a fair, affordable and equitable access to justice. The vision and mission of ODPP is anchored on constitutional provisions and this economic blue print provides impartial, effective and efficient prosecution services to all Kenyans.

The criminal justice system in Kenya is like a conveyor belt; suspect enters the system through arrest by police officers, prosecuted by the ODPP, the judiciary adjudicates their cases while they are confined in the correctional facilities either during the conduct of trial or at the absolute end as they exit the courts to serve a term of imprisonment meted by the courts. Actors within the criminal justice system all have a distinct role to play if they are to ensure speedy disposal of cases and ultimately effective and efficient dispensation of justice. That said then it is evident that the ODPP is but one of the actors in the criminal justice system in Kenya whose import cannot be gainsaid.

The Kenya Prison Service has 108 correctional institutions situated in various parts of Kenya. Out of these, 18 hold female offenders, 87 male offenders while three are for juvenile offenders. Recent statistics reveal that the inmate population in the facilities fluctuates at 53 841 against a planned population of 16,000. This is indicative that the facilities holds almost

triple the numbers that they were designed for. These high numbers also indicate that 46% of the inmates are held in remand custody pending trial.

Taking cognizance of this systemic problem and appreciating that all actors in the criminal justice system have a role to play, the ODPP initiated the “All for Justice” Project. This was in line with the ODPP Act Section 5(4) that provides for continuous review of case as well as ODPP policy documents - the Prosecution Guidelines and the Code of Ethics. This project intended to aid in the decongestion of the correctional facilities while ensuring access to justice through the speedy disposal of pending cases. The “All for Justice” project involved interviewing and reviewing of cases of remandees in 65 prison facilities.

The case review exercise was aimed at ascertaining the cause for a high number of remandees held in correctional facilities, expediting pending cases, proposing feasible and practical strategies for disposal of cases and ultimately informing policy and legal reforms within the criminal justice system. The exercise lasted for six month (January to June 2018) with over ten thousand remand prisoners interviewed. The data collected was analysed and key findings presented to key stakeholders.

Findings From the remandee interviews and case review exercise the following were evident:• That a large numbers of those in remand are


unable to process bail/bond and are placed in remand facilities. This increases the number of people in the correctional facilities and thus the congestion. Of particular concern was that most of the vulnerable and disadvantaged including; the aged, poor, illiterate, unemployment, mentally ill, drug addicts and children in conflict with the law formed the bulk of those in custody. This concern was arrived at upon analysis of ability to afford bail or bond terms vis a vis education levels and employment of the remandees.

• 65.8% of those interviewed in remand were youth aged between 18- 34 years. This has a negative impact on the social economic growth of the country and is also an indicator of the effects of lack of employment opportunities among the youth. Unfortunately, there are no meaningful programmes that engage the remand prisoners while they are in custody.

• On the other hand having this category of offenders (youthful offenders) staying longer in correctional facilities poses a serious challenge to the criminal justice system as the youth are exposed to hard-core criminals and radicalization while awaiting the determination of their cases.

• 198 children in conflict with the law were held in adult prisons, which is contrary to the Law and international best practice that dictates that when children are incarcerated, they should be kept separate from adults. It was also noteworthy that majority of the children in conflict with the Law are from single families (53.6%), 40% had both parents while 6.4% were orphans.

• 61.5% of the remandees were married and had dependants these statistics invite further research into the impact of crime on the family and social set up.

• 75% of remandees had no legal representation. Interestingly, the 25% who had legal representation were mostly under the judiciary Pauper Brief Scheme in adherence to the Gazette Notice No. 370 Practice Directions relating to Pauper Brief Scheme and Pro Bono Services.

• All in all, only 7% of those interviewed in the sixty-five correctional facilities had the means to secure

legal representation. A clear case for the need of a well-structured and functional legal aid scheme in this country.

• Preparation to Commit a Felony is one of the most common offences preferred by the courts;

• Notably, there were delays in the determination of the cases that resulted to the large numbers of those in remand. These delays can be attributed to all the actors in the criminal justice system- the police, judiciary, prosecution, defense counsel and even the witnesses themselves who fail to attend court and required. This calls for introspection

for all duty bearers in the criminal justice sector.

Way forwardThe exercise was an eye opener. It provided much needed evidence from the consumer perspective on the gaps that need to be addressed to enhance efficient and effective service delivery within the criminal justice system. To this end, the following

recommendations were made:• There is dire need to review institutional

and sectoral policies and legal framework to address issues relating to petty offences and the standardization of practices and processes.

• Operationalisation of the National Legal Aid Service should be done with haste to ensure accused persons have access to legal services.

• Leveraging on alternatives to prosecutions such as plea-bargaining and diversions is bound to ensure speedy disposal of cases and ultimately reduce the number of remand prisoners.

• Continuous engagement amongst duty bearers including dialogue, information sharing and joint operations to ensure the quality of services.

At the end of the day, it is important to bear in mind that the criminal justice system is there to serve the interest of the common mwananchi. The sector is dynamic embracing the ever-changing societal challenges. This calls for all duty bearers to accommodate and adopt. Prosecutors are just but officers and agents of justice who must depart from the traditional prosecutorial functions and adopt innovative and proactive approaches that ensure that justice is dispensed within reasonable time. Justice for all and all for justice!

The Kenya Prison Service has 108 correctional institutions situated in

various parts of Kenya. Out of these, 18 hold female offenders, 87 male

offenders while three are for juvenile offenders.

16

PICTURESPEAK


18


PICTURESPEAK

Photos By John Njue

20

FIRST DAY IN COURTBy Samita Mang’oli

As a newly admitted Advocate, much was expected of me especially being the first one from my village.

The stakes were high. You see, my village pretty much raised me. Enough harambees were organised by the old men just to see me through school. But it was now my turn to return the favour. This was very clear in my mind. I was not going to disappoint. I had to shine.

On the date of admission, the whole village arrived in style. The local secondary school bus was used. Of course I knew I had the favour of the school’s principal as my performance had been exemplarily. By village standards. He thus had no problem offering the school bus. But one thing was for sure, his wife was to attend my admission ceremony. Signs that plenty was expected. I digress.

It is a chilly morning in the capital. I wake up ready to face the day. I had always wanted to practice law. I worked extremely hard although you know how much the village can do to you. I dress quietly as I imagine what will happen in court today. I have been in court a few times before while holding over. Those times you humble yourself while requesting a senior advocate to hold your brief. Of course you always hope that nothing else will come up because most of the time the instructions are limited. Or to put it better, you don’t even understand what is in the file in the first place!

But this time, I am the Advocate. I must face the Court. I must encounter the Law. It felt good but quite scary. Questions lingered in my mind. What if i could not think on my feet? What if I misguided the court? What if the court just didn’t like my face? What if?

Be that as it may, the only way of solving all this was by trying. After all, kupotea njia ndio kujua njia.I proceeded to the law firm where I had been employed to hold over. My boss had been too kind to allow me handle one of the files. He sent me to the High Court to record a consent. And because of the ego that makes me who I am, I did not find out what a consent was.To make matters worse, I had learned of my own knowledge that

the court I was appearing before was a no nonsense court. One was not allowed to stammer or look unsure. I perused my file and came across a copy of a consent together with instructions from my boss. After reading the instructions which to me were very clear, I knew that I was set. I was going to shine.

My matter was mentioned. I rose to my feet. My mouth would not open. But how was I going to introduce myself using a title? I was so used to being called by my name. No ‘Miss’. But this time, I had to. That was the most difficult moment. To acknowledge that I was no longer some villager roaming the streets of Nairobi, but that I was now a respected figure in the society. I had to live the part.

Be that as it may, the adverse party stood up and introduced themselves. They told the court that I had a consent to record. The court asked me of the date of the consent. I looked lost. How did the court expect me to know! I was blank. So I started to peruse through the file. Advocate style. All eyes were on me. It’s even worse when you realise that you are the only human being standing in the courtroom. And that everyone is waiting for you to find some date which you cannot figure out. Also remember that my client was in court. They also waited. I am sure they must have cursed my boss for making such a wrong decision of sending a rookie to court: The High Court.

I did not believe the question that was thrown at me by the good Judge. Could you believe that he asked me when I was admitted! As I stood there shaking, I realised that the devil comes in many colours. This was embarrassing to say the least. Was the Court looking down upon my qualifications? How was I going to inform the Court that I was just a night old in practice?I stood there. Shocked but humbled. I told the Court that I had just been admitted the previous day. The Court did not have a word for me. As if to say that I was the greatest joker of the time.

However, probably with the understanding that judicial time was precious, the Court asked my learned colleague to intervene. He did.

This is a day never to be forgotten. I carry this shame with me all the time. But all this said, I believe that was a learning experience. As for now, let us meet in court.


The Deputy Director of Public Prosecutions (DDPP) Nicholas Mutuku has recently received the

prestigious Prosecutor of the Year Award 2018 from the International Association of Prosecutors (IAP) in recognition of his accomplishments in his fight against corruption and severe crime in Kenya.

Mr. Mutuku who is the current Head of County Affairs and Regulatory Prosecutions Department has worked in the Kenyan Public Prosecutions Service for the last 24 years. In this period, he has served as lead trial attorney in many high profile cases involving senior Government officials involved in corruption and complex crime, as well as organised crime and drug related cases.

Presenting the Award during the Annual IAP held in Johannesburg, South Africa, the IAP President Gerhard Jorosch said that the nomination of Mr Mutuku took into consideration the pervasive harm caused by corruption as well as challenges faced by frontline prosecutors in Africa and globally in the discharge of their duties.

“Together with the organisation that nominated Nicholas Mutuku, the IAP believes that Mr. Mutuku should indeed be recognised for his accomplishments in his fight against corruption and severe crime in Kenya and being put in the spotlights as an example for the younger generation of prosecutors, not only in Kenya, also far beyond its borders,” said Mr. Jorosch.

The aim of the IAP Prosecutor of the Year Award is to give a special recognition and encouragement to front-line prosecutors who have demonstrated an outstanding performance in their work domestically and internationally.

Meanwhile another ODPP officer has bagged the Personal Assistant of the Year Award - Africa 2018 in recognition of his exemplary performance in professional practice and achievements.

The Award which was presented to Andrew Osundwa, a Secretary working with ODPP during a ceremony in Lesotho also recognized Osundwa’s role as National

MUTUKU RECEIVES THE INTERNATIONAL

PROSECUTOR OF YEAR AWARD

Chair of the Kenya National Secretaries Association (KENASA).

As KENASA chair, Osundwa has initiated the Secretarial Profession Bill 2018 that seeks to establish a Board to regulate the secretarial profession. The Bill that is currently before the Ministry of Public Service also seeks to establish a training institute for secretarial personnel.

The Award organised by the International Renaissance Centre (IRC) seeks to appreciate best performing and self-dedicated Personal Assistants across the globe seeks to market, appreciate and encourage best practices in the personal and executive assistants profession.

As the Annual Award winner, Mr Osundwa now has a duty to use it to mentor, market the profession, and motivate other professionals. The Award that comes with a revolving shield also gives the winner the voice to speak and champion the interests of Personal and Executive Assistants across the globe.

“I am delighted about the Award and I dedicate it to all Personal Assistants professionals in Kenya and across the globe,” Mr Osundwa said.

by Bernard Ramoka

22

Plea-bargaining is a non-trial mode of procedure. One of its advantages is efficiency leading to its

endorsement because of speed, thus the need to understand the nature of plea agreements.

Plea-bargaining is a negotiation between an accused and or his advocate on the one hand and the prosecutor on the other. The accused agrees to plead ‘guilty’ or ‘not to contest’ to some crimes, in return for reduction of the severity of the charges, removal of some of the charges, and the prosecutor’s willingness to recommend a particular sentence, or any other benefit to the accused. Plea-bargaining can conclude a criminal case without a trial.

Sometimes one element of the bargain is that the accused is required to reveal information such as location of stolen goods, names of others accomplices in the crime, or admission of other crimes (such as a string of burglaries). Plea-bargaining is expressly authorized in the Criminal Procedure Code Cap 75, Laws of Kenya.

The legal frameworkThe Law on plea agreements was introduced into the Criminal Procedure Code by Act No 3 of 2008 through amendment to Section 137 of the Code by adding sections 137(A-O). Other legislations permitting plea agreements include, The Anti Counterfeit Act, Section 34A; The Customs and Excise Act, Section 214.

Under the Criminal Procedure Code, a prosecutor and an accused person or his representative may negotiate and enter into an agreement in respect of reduction of a charge to a lesser included offence, withdrawal of the charge or a stay of other charges or the promise not to proceed with other possible charges. A plea agreement entered into may provide for the payment by an accused person of any restitution or compensation. A plea agreement can only be entered into after an accused person has been charged at any time before judgement.

Where a prosecution is undertaken privately, no plea agreement shall be concluded without the written consent of the Director of Public Prosecutions (DPP).

A plea agreement on behalf of the Republic shall be entered into by the DPP or officers authorised by the

DPP. Provided that in any trial before a subordinate court, a public prosecutor may with the prior written approval of the DPP or officers subordinate to him, enter into a plea agreement.

Initiation of plea agreement A prosecutor or an accused person or his legal representative may initiate an offer for a plea agreement. When the parties intend to negotiate a plea agreement, they must notify the court. The court shall not, however, participate in plea negotiation between a public prosecutor and an accused person.

Consultation with victim and investigating officerA prosecutor shall only enter into a plea agreement in accordance with section after consultation with the police officer investigating the case. The Prosecutor is required to take due regard to the nature of and the circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community. The prosecutor is required to further afford the victim or his legal representative the opportunity to make representations to him regarding the contents of the agreement.

Form of plea agreement A plea agreement shall be in writing, and shall be reviewed and accepted by the accused person, or explained to the accused person in a language that he understands. If the accused person has negotiated with the prosecutor through an interpreter, the agreement shall contain a certificate by the interpreter to the effect that the interpreter is proficient in that language and that he interpreted accurately during the negotiations in respect of the contents of the agreement.

The plea agreement shall state fully the terms of the agreement, the facts of the matter and all other relevant facts of the case including any admissions made by the accused person. The prosecutor and the accused person or his legal representative will sign the agreement, and where complainant is to be granted compensation, the complainant signs it.

Recording of plea agreement by courtBefore the court records a plea agreement, the accused person shall be placed under oath and the court shall

PLEA BARGAINING IN KENYA: A SYNOPSISby Jacob Ondari and Muranga Gitonga


address the accused personally in court, and shall inform the accused person the right to plead not guilty, or having already so pleaded, to persist in that plea; the accused person’s right to be presumed innocent until proved guilty; his right to remain silent and not to testify during the proceedings; his right not to be compelled to give self-incriminating evidence; his right to a full trial; his right to be represented by a legal representative of his own choice, and where necessary, have the court appoint a legal representative and his right to examine in person or by his legal representative the witnesses called by the prosecution and his right to call his own witnesses in support of his case. By accepting the plea agreement the accused is essentially waiving his right to a full trial and the rights mentioned.

The court will also inform the accused of any maximum possible penalty, including imprisonment, fine, community service order, probation or conditional or unconditional discharge that he may be subjected to in the event of a plea of guilty being entered and any mandatory minimum penalty. Where the offence includes provisions of forfeiture the same shall be explained to the accused person.

A critical consequence of the accused pleading guilty under a plea agreement is that the accused waives his right to appeal except as to the extent or legality of sentence. The accused person is still liable for prosecution in the cases where the accused commits perjury or gives a false statement and any such false statement made during the plea agreement process may be used against him.

The court is required to, before recording a plea agreement, satisfy itself that at the time the agreement was entered into, the accused person was competent, of sound mind and acted voluntarily. The agreement shall become binding upon the prosecutor and the accused and the agreement shall become part of the record of the court. Where the court accepts a plea agreement, the court shall proceed to convict the accused person accordingly.

Upon conviction, the court may invite the parties to address it on the issue of sentencing. In passing a sentence, the court shall take into account the period during which the accused person has been in custody, the victim impact statement, if any, the stage in the proceedings at which the accused person indicated his intention to enter into a plea agreement, and the nature and amount of any restitution or compensation agreed to be made by the accused person. Where necessary and desirable, the court may in passing a sentence, take into account a probation officer’s report.

Rejection of plea agreement The Law provides for the court to reject a plea agreement. Where the court rejects a plea agreement, it shall record the reasons for such rejection and inform the parties accordingly. In that instance the plea agreement shall become null and void and no party shall be bound by its terms. The proceedings giving rise to the plea agreement shall be inadmissible in a subsequent trial or any future trial relating to the same facts. In other words the details of the plea agreement shall not be admissible in other proceedings. The court that presided over the failed plea agreement cannot hear the matter afresh and the case is required to be transferred to another court of equal jurisdiction, unless the accused requests that the matter proceed before the same court thus waiving his right to have the matter tried before a different court.

The court will record a plea of no guilty once the plea agreement is rejected and no further plea negotiations shall be entertained on the same facts or case. There is the finality of the decision rejecting the plea agreement, with the law denying all parties the opportunity to appeal, or seek a review of the courts decision to reject the plea agreement.

The Law provides for an opportunity for the accused person to withdraw a plea of guilty pursuant to a plea agreement prior to the court accepting the agreement. The accused may also withdraw his plea of guilty pursuant to a plea agreement after the court accepts the agreement and convicts them on the plea but it must be before sentence and the accused person must demonstrate a fair and just reason for the withdrawal.

Once the opportunity to withdraw the guilty plea under the agreement has passed and the court hands the sentence, the sentence passed shall be final and no appeal shall be entertained on the sentence except as to its extent or its legality. Further room is provided for the sentence and plea agreement to be set aside on the grounds of fraud or misrepresentation.

The Law and the statements protect the plea agreement process information or facts stated by an accused person in a plea agreement shall not be used for any other purpose except for the purpose of the plea agreement.

The Law prohibits plea agreements in cases of sexual offences under the Sexual Offences Act, 2006 and offences of genocide, war crimes and crimes against humanity.

24

DPP KENYA TO HOST EAAP SECRETARIATby Rodah Ogoma

The Executive Committee of the East African Association of Prosecutors (EAAP) has congratulated

Noordin Haji on his appointment as the Director of Public Prosecutions (DPP), Kenya.

The EAAP leadership led by the President Jean Bosco Mutangata who is the Prosecutor General, Rwanda also welcomed Haji to the EAAP Executive Committee where he will be serving at Secretary General.

Among the issues discussed during the Association’s 8th Annual General meeting held in Arusha, Tanzania include, the operationalization of the EAAP Secretariat, which Haji offered to host with donation of a seed capital of $10,000; review of the EAAP Constitution to address emerging issues such as the one year office holding that members felt was too short to achieve tangible results; implementation of the EAAP Strategic Plan, capacity building, cooperation and networking within the region and election of 2019 officials.

The elections saw Prosecutor General of Tanzania Biswalo Mganga elected President, DPP Uganda Mike Chibita - Vice President, Prosecutor General of Rwanda Bosco Mutangana – Treasurer, while DPP Kenya Noordin Haji was elected Secretary General.

In his remarks, DPP Kenya called on EAAP member states to make use of the recently established ODPP Prosecutors Training Institute to build the capacity of their staff. Haji pledged to reserve two free slots for each of the EAAP counties whenever there were relevant on-going trainings at the Institute.

The Association whose membership comprises Burundi, Kenya, Rwanda, South Sudan, Tanzania and Uganda is a regional block for prosecutors whose key role is to enhance cooperation and Mutual Legal Assistance in criminal matters within the Region. The Association also provides a platform for networking and enhancement of capacity to handle specialized crimes within member states.

Established in 2011, EAAP has expanded from only three member counties of Kenya, Uganda and Tanzania to the current six. The Association is managed at policy level by an Executive Committee comprising of the heads of prosecution authorities of member states and serviced by a Technical Committee consisting of nominated prosecutors from each of the member countries.


Former nominated Senator Joy Gwendo has been imprisoned for two years after she pleaded guilty in a plea bargaining agreement to the offences of abuse of office and issuing bad cheques.

The court ordered that Gwendo be jailed without the option of a fine for hoodwinking the Court after failing to honour a plea bargain she entered into with the ODPP to settle a Sh1.7 million debt and abuse of office charge. “..It is noteworthy that she executed a plea bargain agreement yet she was sure that she could not honour the same. She was hoodwinking the Court and therefore lied,” ruled Chief Magistrate Douglas Ogoti.

The Court found Gwendo to have been dishonest, even after she sought for a non-custodial sentence.

According to the Charge Sheet, on 23rd October 2016 at Chiga Parish in Kisumu East within Kisumu County, Gwendo used her position as a State officer to confer herself KShs 2,226,800, the property of Kisumu East Cotton Growers Cooperative Society through Kivali Development Initiative. She was also charged with issuing a bad cheque amounting to KShs 300,000 and another of KShs 950, 000.

Detectives from EACC arrested Gwendo in January 2018 for fraudulently and without claim of right, taking money belonging to Kisumu East Cotton Growers Cooperative Society between October and December 2016. Thereafter she also issued cheques that were dishonoured by the bank.

FORMER SENATOR JOY GWENDO IMPRISONED FOR TWO YEARS

COURTS ROUND UPby Bernard Ramoka

WOMAN SENTENCED TO TWO YEARS FOR TAKING KSHS 2,500 BRIBE

A middle-aged woman has been sentenced to two years in prison by the Anti-Corruption Court (ACC) sitting in Nairobi, after she was found guilty of receiving a KShs 2,500 bribe.

The accused, Justina Malela Syonzua, was ordered to pay a fine of KShs 500,000 as an alternative to the jail term.

Syonzua, formerly an employee of the Ministry of Interior and Co-ordination of National Government was

charged with several counts of demanding and taking bribeS.

During the trial the Prosecution told the Court that the accused had on 8 September 2016, while working as a clerical officer based at the National Registration Bureau in Nairobi’s Kasarani, improperly received a benefit of KShs 2,500. The amount was an inducement to facilitate the issuance of a birth certificate to a client.

Duncan Bundi Bunduki has been sentenced to five and half years in prison without the option of a fine for impersonating an EACC Investigator and exhorting money from the public

MAN JAILED FOR IMPERSONATION

Dr. Vincent Kathumo, a lecturer at the University of Nairobi has been convicted of three counts of requesting and receiving a bribe. He was fined KShs 450,000 in default three years imprisonment..

LECTURER SENTENCED TO THREE YEARS FOR RECEIVING BRIBE

26

Milimani High Court Judge Jessie Lessit has sentenced Ruth Kamande to death after the Court found her guilty of stabbing and killing her boyfriend in Buruburu Estate in 2015.

Kamande, who was crowned Miss Langata women prison beauty queen in 2016, was charged with stabbing and killing her boyfriend Farid Mohamed. In her judgment, Justice Lessit said that Kamande who stabbed her boyfriend 22 times acted in malice and that her actions in Court proved the same.

Lessit said that the Prosecution had proven beyond all reasonable doubt that Kamande committed the offence.

“The prosecution has laid it clear that the accused person committed the offense and the stabs that killed the deceased (Farid Mohamed) were not done at a go,” the Judge ruled.

Justice Lessit dismissed the accused person’s rape allegations terming them false. She said that a doctor’s report presented in court ruled out rape.

MISS LANGATA 2016 SENTENCED TO DEATH

A Nairobi High Court has found Moses Dola guilty of manslaughter and sentenced him to 10 years imprisonment for the death of his wife, former NTV Journalist Sarah Wambui Kabiru, in 2011.

While passing the sentence, Justice Roselyn Korir noted that though Dola was remorseful, the family of the deceased is still bitter and demanding for justice for her death. Judge Korir said that the victim report filed in

court showed that the family of the deceased is yet to come to terms with the death of their daughter.

“I am convinced that a custodial sentence is good enough and I hereby sentence him to ten years in prison.” Justice Korir said.

The Judge said that the Prosecution had proved beyond reasonable doubt that Kabiru died an unlawful death. Ms Kabiru was killed in the couple’s Umoja Estate house in Nairobi on May 1, 2011.

COURT FINDS DOLA GUILTY OF MANSLAUGHTER IN DEATH OF WAMBUI

KABIRU

COURT JAILS SEVEN SUSPECTS ON THE BUNGOMA WHEELBARROW

SCANDAL Seven suspects Juma Matsanza, Howard Lukadilu,

Oscar Onyango, Ayub Tuvaka, Arlington Shikuku, Jackline Nanjala and Reuben Cheruiyot who were charged over the Bungoma County wheelbarrow scandal have been sentenced to one-and-half years in jail or pay a fine of Ksh.300, 000 each.

One of the suspects, Juma Matsanza, who was the accounting officer in the Bungoma County Finance Department, was handed a two-year jail term or KShs 400,000 fine.

Bildard Ochieng, the Kakamega Senior Magistrate sentenced the seven on June 25, 2018. He ruled that the prosecution had proven that the convicts who were members of the County Tendering Committee colluded and procured nine wheelbarrows at a cost of KShs 109,320 each in 2015.

Daudi Nzomo, the man caught on camera assaulting his wife Winfred Mwende in Makueni, has been sentenced to 12-year imprisonment. Nzomo had pleaded guilty to the charge of causing grievous harm to Mwende.

The convict was arrested in Nguuni, Kibwezi West Constituency after the video of him viciously beating his wife went viral on Social Media. In his sentencing on August 8, 2018, Makueni Senior Principal Magistrate James Mwaniki said that he considered Nzomo’s criminal record, which showed that he has been a violent man.

MAN CAUGHT ON CAMERA ASSAULTING WIFE SLAPPED WITH

12-YEAR JAIL TERM


ODPP SHOW CASES BEST PRACTICES IN COMBATING

WILD LIFE CRIMES

The Office of the Director of Public Prosecution (ODPP) has taken the lead in training other countries from the Eastern African Region in the investigation and prosecution of wildlife crimes.

The trainings are aimed at increasing legal cooperation among prosecutors and creating a vibrant prosecution network on wildlife crimes in the region.

The ODPP Wildlife Crimes Unit has so far been invited to make presentations on ‘Combating Wildlife Crimes’ in Uganda, Tanzania and Ethiopia.

The presentations, which are guided by the ODPP’s Rapid Reference Guide on investigation and prosecution of wildlife crimes, are aimed at sensitising participants and sharing experiences on Kenyan Laws relating to fighting wildlife crimes, Mutual Legal Assistance and extradition of suspects of such crimes.

Eastern Africa countries have shown interest in learning best practices from ODPP because they have seen the impact of the recently enacted laws on wildlife crimes that has seen drastic reduction in poaching by 80% since 2012.

28

“Justice be our shield and defender,” is a profound statement found in third line of the first stanza of the Kenya National Anthem.

Justice must not only be done; it must also be seen to be done. Upholding the rule of law is one of the

ways we ensure that justice is served. This brings me to a disturbing observation that I have made in the execution of my duties as a prosecution counsel.

The core mandate of a prosecution counsel is to prosecute criminal charges in a competent court of law. The main goals of the criminal justice system are to; punish the offenders, rehabilitate offenders, and prevention of commission of offences. While discharging my duties for almost four years, I have concluded that at times, statutory justice is injustice to the society, mainly on sexual offences under the Sexual Offences Act No. 3 of 2006(SOA). To demonstrate this, I will use a real life scenario that I have experienced in the course of my work.

A parent seeks to administer punishment on her17-year-old daughter who has done something the parent deems wrong. However, before the girl can be punished, she runs away from home and seeks refuge in a schoolmate’s house. The schoolmate is an 18-year-old male whom she has been friends with for a while and who is set to join university soon. The two agree and engage in non-coercive sexual intercourse. The two are arrested on the same day by the parents of the girl who have been looking for their daughter. They are escorted to the nearby police station. Investigations are conducted and the young man is charged with the offence of defilement. The case goes to full trial. At the end, the boy who had a promising future ahead of him is sentenced to 15 years in prison. The court in its sentencing states that its hands are tied because the sentence provided by the SOA is mandatory.

Research has shown that girls mature faster than boys by two to three years. Does this mean that a 17-year-old girl is equivalent to a 21-year-old boy? If so, where is the justice in punishing an 18-year-old boy to serve at least 15 years mandatory sentence after engaging in a non-coercive sexual encounter with a 17-year-old female? In

CRY FOR JUSTICE UNDER SEXUAL OFFENCES

ACTOchengo O. Justus

the states of Utah and Wyoming in the United States of America, the age of consent 16 years for women and 18 years for men .

Section 14(3) of the Penal Code, Cap 63 of the Laws of Kenya, provides that a male person above 12 years is capable of having knowledge. The implication of this is that, a male person above 12 years understands the consequences of his acts. The SOA provides that a person under the age of 18 does not have the ability to consent to sexual activities. If a male child above twelve years is legally capable of understanding the consequences of his sexual acts, what of a 17-year-old girl in the scenario I have presented? Are we doing justice to the boy child who biologically matures slower than his female counterpart?

Those who celebrated their marriages before 2012 were issued with marriage certificates under the African Christian Marriage and Divorce Act. The age of consent under the act was 16 years. Is it time we reduced the age consent to 16 years under the SOA? The age of consent in more than 20 countries around the world has been placed at 16 years.

Do you still believe that justice was served in sentencing an 18-year-old waiting to join university to serve 15 years in prison? The drafters of the SOA had noble intentions - to protect children from sexual pests. While the law has partially achieved its objective, it has also caused suffering to young people who find themselves serving long imprisonments for engaging in non-coercive sexual relations. Young people occupy more than 60% of our prisons. Almost 35% of the young people in our prisons are charged with sex related offences while 65% of sexual offenders are charged with engaging in non-coercive sexual relations.

It is often repeated that the world suffers most not because of the violence of the bad people but by the silence of the good people. It is high time, that we in the justice sector steer reforms in our statutory laws that we deem unjust. The SOA needs serious reforms.

My proposal in the said Law includes the following: • The mandatory minimum sentences be abolished • Magistrates be granted discretion in sentencing

to enable them sentence on the circumstances of each case

• Non-coercive sexual intercourse between persons whose age difference is between zero to three year be availed as a defense in the SOA


The DPP urged adults to be role models by demonstrating that the success they

have gained is through hard work, trust, integrity, patriotism, servant

leadership and concern for the common good.

THE DPP ADVOCATES FOR ENHANCED INSTITUTIONAL IMPLEMENTATION OF GOVERNANCE AND ETHICAL

STANDARDSby Rose Kipyego

Mr Noordin Haji, the Director of Public Prosecutions (DPP) says that unethical practices have been the

source of injustice against the Kenyan people.

“Most of the offences my office has had to deal with arise from poor ethical leadership in organizations, particularly in the course of procuring goods and services, handling of finances and making payments, and recruitment and promotion of employees,” he said this during a multi-agency panel discussion on Inter-Relation Between Corporate Governance, Ethical Standards and Public Prosecutions.

Corporate governance is all about the system of rules, practices and processes by which an organisation is directed or controlled; and the trust and confidence an organisation is able to build on its name. Ethical standards on the other hand guide individuals and institutions to act in an honest and trustworthy manner.

The DPP said that upon his assumption to office, he visited the ODPP offices countrywide and interacted with members of the law enforcement sector, remandees and the public. What was clear is that, punda amechoka. That people are sick and tired of injustice in the country, stemming from poor governance and unethical practices.

“So as leaders seated here today, do we have a role in this, have we always risen to the occasion?” the DPP challenged the panelists. He added that failure by both private and public sector to provide moral guidance and ethical direction has been a major hindrance to political, social and economic growth and development.

The DPP added that his office continues to implement governance and ethical standards through: trainings/

workshops for staff focusing on office mandate and service delivery, enactment of ethical laws and codes of conduct, and promoting effective financial management within ODPP, among others. That it has developed a Code of Ethics to guide staff and another for prosecutors while the non-legal staff are guided by the ethics of their respective professional bodies.

The critical role that the ODPP plays in entrenching governance and ethical standards to the public is evident

by way of: prosecuting cases from unethical actions and behavior which is corruption, advising institutions on criminal matters bordering on unethical behavior and actions, advocating for ethical leadership, and collaborating with institutions to entrench

ethical leadership.

The DPP opined that to strengthen governance and ethical standards in our institutions and society at large, there is need to begin with a process he referred to as Ethical Inculcation Pipeline. This means re-looking, re-imaging, re-designing and implementing a social process that begins at childhood, to old age so that ethics are inculcated throughout the human journey. The DPP put this into perspective by explaining that; parents ought to be available to raise their children and inculcate the requisite ethics, and schools ought to frame ethics as a national security agenda the same way agriculture and terrorism has been framed.

The DPP urged adults to be role models by demonstrating that the success they have gained is through hard work, trust, integrity, patriotism, servant leadership and concern for the common good.

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OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONSNSSF Building, Block ‘A’ 19th Floor

P.O. Box 30701-00100. Nairobi, KenyaTel: +254 2732090/2732240 } Mobile: 0723202880/0787880580

Fax: +254 2 2243524/2251808Web: www.odpp.go.ke | Email: [email protected]

Director of Public Prosecutions (DPP) Noordin Mohamed Haji, the Secretary of Public Prosecutions

(SPP) Mrs Dorcas Oduor and other ODPP seniors officers were among top state and public officers who received the prestigious Presidential Awards during this year’s 55th Jamhuri Day Celebrations.

The Awards were as follows:CHIEF OF THE ORDER OF BURNING SPEAR (CBS)1. DPP, Noordin M. Haji

ELDER OF THE ORDER OF THE BURNING SPEAR (EBS)2. SPP, Dorcas Oduor

ORDER OF THE GRAND WARRIOR OF KENYA (OGW)3. Jacob Ondari4. Nicholas Mutuku5. Emily Kamau6. Lilian Obuo7. Tabitha Ouya8. Grace Murungi9. Vincent Monda10. Duncan Ondimu

HEAD OF STATE COMMENDATION (HSC)11. Lucy Muhuni

According the Kenya Gazette of 12th December, 2018, the DPP and other ODPP officers were honored for their distinguished and outstanding services rendered to the Nation in their various capacities and responsibilities.

ODPP OFFICERS RECEIVE PRESIDENTIAL AWARDS

DPP, Noordin M. Haji SPP, Dorcas Oduor Jacob Ondari Nicholas Mutuku Emily Kamau

Lilian Obuo Tabitha Ouya Grace Murungi Vincent Monda Duncan Ondimu Lucy Muhuni

dpp haji resolve to fight corruption sees several …€¦ · of a sitting judge to avoid conflict...

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