The withdrawal of the Sh7.3 billion fraud case against Deputy President Rigathi Gachagua has set the stage for possible law amendments to establish an office in the Judiciary to vet prosecution decisions.
In a recommendation made yesterday by an anti-corruption court in Nairobi, there is a need for an office to determine whether evidence obtained by investigators is sufficient to institute and sustain a criminal trial.
The proposed “office of the pre-trial judge” would also check the veracity of the prosecutors’ decisions to charge suspects.
The court admonished the Office of the Director of Public Prosecutions (ODPP) and Director of Directorate of Criminal Investigations (DCI) for charging Mr Gachagua and nine other persons before concluding the investigations, saying it was an abuse of the court process.
“In my view, Parliament should consider passing the necessary legislation to establish an office of the pre-trial judge. That office should subject activities of the DPP, DCI and any other investigative authority as relates to intended charges to scrutiny, determine the number of witnesses bonded based on the quality of testimony and set down the timelines of each case,” said Senior Principal Magistrate Victor Wakumile.
“I state so because I am horrified that we could sit here hearing matters yet they (investigators) were fishing for evidence,” said the magistrate.
The ODPP withdrew the case against Mr Gachagua citing insufficient evidence, frustrations by the DCI and a revelation that case investigator Obadiah Kuria was pressured to recommend the criminal charges before establishing culpability.
While allowing the withdrawal of the case, the magistrate said the proposed new office would also help to reduce the backlog of cases in courts.
“Once the office of pre-trial judge establishes that there is ample evidence chances are that plea bargain shall be the norm in this country rather than plea-taking,” said Mr Wakumile.
He said it is unfair to subject judicial officers to taking lengthy notes and hearing ridiculous witnesses when investigators are still fishing for evidence.
“As courts of laws, we are no longer passive arbiters of everything and anything that is presented before us for adjudication. Never, in my view, should a judicial system be used as a stopgap measure or a doormat,” stated Mr Wakumile.
Even as Mr Wakumile dismissed the case, he observed that the DP can be re-arrested and charged over the same allegations should the investigators obtain further evidence.
The magistrate also proposed the introduction of a “personal prosecutorial and investigative liability” policy to protect junior officers working with anti-crime state agencies from acting on illegal orders issued by their bosses.
In the DP Gachagua case, Mr Wakumile said investigators and prosecutors engaged in blame games as “what they were simply saying in different tones and words was that they were instructed to proceed and operate within what was at hand”.
“Definitely administrative actions would have followed if they refused to comply. However, with introduction of personal prosecutorial and investigative liability, such officers will be able to stand firm, unshaken and resist the devil at all times,” he said.
