Prosecuting graft cases might be an uphill task for the Director of Public Prosecutions Noordin Haji after the Appellate Court recently ruled that the High Court has a duty of evaluating the legality of the charges brought against a suspect and the prospect of securing a conviction.
Previous rulings by the court were that the task of evaluating such evidence was to be left to the trial magistrate.
The High Court, however, can consider the circumstances presented before it and determine whether the DPP was properly guided in bringing the charges or abused his discretion by being motivated by factors other than the pursuit of justice.
If, in the court’s view, the DPP took into account extraneous factors, it can quash such charges but the discretion to prosecute criminal offences is not to be lightly interfered with.
While quashing charges intended against former Central Bank of Kenya Governor Njuguna Ndung’u, two judges of the Appellate Court faulted a decision of the High Court rejecting to halt the intended trial.
Justice Erastus Githinji, whose decision was concurred with by Justice Jamila Mohammed, said the charges against Prof Ndung’u were largely dependent on documentary evidence and most of the facts were not in controversy.
The judges said Justice George Odunga of the High Court was called upon to find out whether or not the omissions allegedly committed by Prof Ndung’u, at face value, constituted the alleged criminal offences under the procurement law.
Justice Githinji said a decision on that issue could have been made without embarking on a trial by scrutinising the documents and upon consideration of the circumstances of the case and the law.
“In my respectful view, the High Court erred in law by failing to scrutinise the charges, the relevant documents including the decisions of evaluation committee, tender committee, review board and the High Court proceedings and reach a conclusive and objective decision on whether or not the charges had any legal or factual foundation and also a realistic prospect of conviction,” he said.
The judge said he was satisfied that the charges had no legal or factual foundation and thus there was no realistic prospect of conviction.
“It is apparent that the High Court left the matters raised by the appellant and the respondents to the trial court for determination without making any tentative and objective finding on the legality of the charges and the prospect of a conviction,” he added.
In a dissenting decision, Justice Hannah Okwengu said she would not have stopped the intended trial because Prof Ndung’u failed to demonstrate any violation or that there was a threat to violation of any constitutional rights by the actions taken by the Ethics and Anti-Corruption Commission (EACC) and the DPP to charge him.
In the case, EACC and DPP decided to prosecute Prof Ndung’u over the procurement of the Integrated Security Management Systems [ISMS] for use in the Central Bank of Kenya.
Six companies – AUA Industria, Ovad Limited, Indra Limited, Axicon Kenya Limited, Horsebridge Network Systems EA and Engineered Systems Solution – offered their bids.
A dispute arose concerning the award of the tender after the bank’s tender committee declined to award the tender to Horsebridge, the lowest bidder.
Horsebridge filed an application in the Public Procurement and Administrative Review Board and the board ordered that the tender be awarded to Horsebridge.
Notwithstanding internal and external legal advice given to the appellant questioning the review board’s jurisdiction and advising the appellant to appeal against the decision, Prof Ndung’u directed the tender committee to comply with the order.
EACC, through Mr David Ruto, contended that its investigations revealed that Prof Ndung’u, being the governor and accounting officer of the bank, had wilfully failed to comply with the law relating to procurement procedures.
This was because he allegedly directed that the contract be given to Horsebridge and, in doing so, irregularly conferred or attempted to confer a benefit on the company.
The charges that were to be preferred against him included wilful failure to comply with the law relating to procurement and attempt to commit an offence involving corruption.
The bank had a budget of Sh800 million but the company’s bid was Sh1.2 billion.
The DPP, through Mr Fredrick Ashimosi, maintained that he had acted in accordance with his mandate as the report submitted to him by EACC revealed evidence that was sufficient to establish criminal culpability.
Prof Ndung’u then moved to the High Court seeking to stop the charges but Justice Odunga ruled that the criminal process has inbuilt mechanisms intended to safeguard the right to a fair trial.
In the appeal, Prof Ndung’u, through lawyer Cecil Miller, said he was not involved in the tender procurement process and the decision to award the tender to Horsebridge was made by the review board.
He further said the legal advice given could not override established law.
Mr Miller said the case lacked legal and factual substratum and Justice Odunga erred in criminalising a lawful procurement process.
The two appellate court judges agreed with him and prohibited EACC and DPP from going on with the case.