Last Year saw Director of Public Prosecutions Noordin Haji make a sensational claim that he had a watertight case against the NYS season two suspects who were accused of stealing Kshs.468 million.
The DPP paraded 50 accused persons in court including former Public Service and Youth PS Lillian Omollo. Fast forward, with the trial having started, the DPP has withdrew charges against 12 suspects with many claiming that this is as part of his strategy to nail the big fish.
The DPP has discretion under section 87 (a) of the Criminal Procedure Code to withdraw charges at any time before an accused person is called upon to make a defense. However, such withdrawal does not bar subsequent charges against the accused persons.
In a statement released on Wednesday, Haji said that seven of the suspects would be used as witnesses in the cases. Those converted to prosecution witnesses include junior officers whose evidence according to Hajji will be key in strengthening their case to secure convictions. However, five other individuals were still facing charges in other cluster of cases, which are pending before other magistrates.
“When the cases were reviewed, it dawned on us that the said persons were more suitable as prosecution witnesses ‘even though some of them may offer accomplice evidence but that evidence will be corroborated by other independent witnesses as envisaged under the law’ read part of his statement.
Under article 157 of the constitution and section 5 of the ODPP Act, the DPP may review a case at any stage and considering the circumstances in the current case, the review was invited largely by the order for consolidation.
In summary, the NYS cases have been divided among three magistrates, with each court handling one file after the cases were consolidated. Even as he withdrew the charges, Hajji said lack of evidence was not an issue and that section 87 of the CPC, doesn’t compel them to give reasons as to why charges are withdrawn.
According to an article by John Buck, cooperating witnesses have long been a critical tool for prosecutors and enforcement agency lawyers in both investigations and criminal proceedings.
Buck is a partner in Perkins Coie’s Chicago office, focuses his practice in the areas of investigations and white collar defense, unfair competition litigation, product liability litigation and other commercial litigations.
The article themed ‘Cooperating witnesses: Changing Pressures Create Riska and Opportunities indicates that “the vast majority of individual defendants are faced with a series of choices- all of which are unattractive-about whether to “cooperate” or dig in and fight”
In most cases, Buck says the government is not all-knowing and in the absence of cooperating witnesses the Department Of Justice (DOJ) Securities and Exchange Commission (SEC), and other agencies ‘likely would not uncover-much less be able to prove-many claims arising out of questionable conduct or practices’.