- DPP Noordin Haji has also saddled the criminal registry with many accused persons who arguably ought to have been dealt with separately.
- Mr Haji has been particular that no one will be spared.
- But his efforts are being constrained by the lack of capacity in terms of personnel and time to prepare.
The arrest and arraignment of high-profile individuals over graft-related charges has often been marked with extensive publicity and fanfare, raising hopes among Kenyans that a lot of effort is being exerted to fight corruption.
Their lawyers will spend considerable effort using their best legal arguments to ensure their clients are released on bail.
After securing freedom, little comes out of the cases, as either they drag on forever, are terminated prematurely, or an acquittal is pronounced by the court “for lack of sufficient evidence”.
Prosecutors’ inability to secure timely convictions, or any at all, has mainly been blamed for the way most corruption cases are being handled, especially by investigators, police and prosecutors.
Some of the challenges range from lack of thorough investigations and overcrowded charge sheets to non-credible witnesses, and failure to comply with the law of evidence.
Law Society of Kenya President Allen Gichuhi says one of the persistent complaints is that where, say, five accused persons are charged with too many counts and prosecutors also line up too many witnesses, such a case ends up being convoluted.
“Some of the suggestions that have been made is the prosecution should sieve and identify the counts they are very confident they have all the evidence and can be concluded faster, then leave out the counts that are shaky, because at the end of the day, what matters is a conviction,” Mr Gichuhi.
The Director of Public Prosecutions (DPP) has also saddled the criminal registry with many accused persons who arguably ought to have been dealt with separately.
Lawyer Nelson Havi says the trial ends up with a scenario where there are more than 10 accused persons with one charge sheet and about 30 witnesses.
“It is improbable that such a case can be determined within a year,” he says.
Lawyer Harun Ndubi adds that when the DPP opts to charge everybody, two challenges arise. First, there will be no witness.
Secondly, if more than 10 accused persons are brought together in one charge sheet and each is entitled to a lawyer of their choice, there will be too many lawyers seeking to address the court.
It gets complicated managing those lawyers in terms of their submissions, particularly if some of the accused persons have hired the services of more than one lawyer and each wants to cross-examine witnesses and address the court.
“So you find that you have a logistical difficulty because even getting a date that is convenient to all those lawyers is very difficult. That is why some of those cases have been allocated dates of next year. Because lawyers’ diaries are already clogged for this year,” he says.