BY SAM ALFAN.
A magistrate has questioned the motive by the Director of Public Prosecution Noordin Haji in withdrawing charges against some accused persons.
In a ruling declining one such request for withdrawal, senior principal magistrate Kagure Nyutu wondered whether public interest is factored during withdrawal of charges.
The magistrate said it might be discriminatory to withdraw charges against some accused persons who are involved in the same transactions and are facing joint charges and leave others.
“It is my finding that allowing such discriminatory withdrawal of charges has a bearing on the perception of the integrity of the court,” said the Magistrate.
The Milimani magistrate made the ruling in an application by the DPP to withdraw charges against Zhang Jing, a director of Erdemann properties ltd, which is implicated in the Sh4 billion Lake Basin Mall in Kisumu county.
The DPP said the decision was informed after reviewing evidence, which was not available when she and others were charged, and established that her role was limited to being a director and played no role in the transactions leading to the scandal.
“In regards to executing documents leading to the alleged unlawful charging of public property. If the DPP is now saying that the available evidence against accused number nine is insufficient to sustain a prosecutorial decision to prosecute her for the offenses of unlawful charging a public property, I find that this is a dangerous proposition capable of absurd and un-intended results,” she said.
The magistrate said if by executing the documents, Zhang did no wrong, it would then follow that all the other accused persons who have been charged on the basis of executing documents, also did no wrong.
According to the magistrate, the direction was a slippery road that has a direct bearing to the maxim that justice must not only must be done, but it must be seen to be done. “Is the intention of the prosecution to drop the entire case?” the magistrate posed.
She wondered how justice will be seen to be done if the court allows the “cherry picking of accused persons” for withdrawal of their cases against other accused persons with similar circumstances.
“If indeed the DPP is sincere as stated at paragraph 13 of their Further Affidavit that the execution of documents by accused number nine is not adequate to sustain a charge, then this argument should be applicable to a number of accused persons. The effect of this would be then unintended absurdity of justice not being seen to be done,” said the Magistrate.
She added that it is either the court hears the case on merit, or the argument is applied to all accused persons whose role was the execution of documents.
“I’m stating this, having had the opportunity to hear eight witnesses as at the time of writing this ruling,” she said.
Other than the charges that she was involved in the execution of documents, Zhang is also charged with corruptly giving a benefit as well as conspiracy to commit an offense of corruption.
The magistrate said nothing was stated concerning the other charges.
She said the interest of the administration of justice and the need to prevent and avoid abuse of the legal process, interest of the administration of justice dictates that only those whom the DPP believes have a prosecutable case against them, be arraigned in court.
“And those who the DPP believe have no prosecutable case against them be let free,” the magistrate added.
