Mark Agutu
6 July 2008
Nairobi — The recent release of scores of suspected criminals on grounds their constitutional rights had been violated by the police has cast a shadow over the credibility of the country's criminal justice system.
Suspects are regaining freedom in droves either by exploiting constitutional provisions or by beating the state in trials, raising misgivings about the preparedness of the Criminal Investigations Department in assisting the Attorney-General's office to secure convictions.
That CID officers have rarely cracked murder mysteries, including those involving high profile personalities, is well documented in the country's history, demonstrating that much still needs to be done by the department.
A few examples that readily come to mind include the homicides of Nyandarua North MP J.M. Kariuki, Foreign Affairs Minister Robert Ouko, Kilome MP Tony Ndilinge, Chief Magistrate Babu Achieng and University of Nairobi lecturer Dr Odhiambo Mbai, whose killers have never been brought to book.
Regarding cases taken to court, loss has been the norm. The scenario is usually the same: if it's not through bungled investigations, then it is by violation of relevant laws during investigations and trials or both.
As state agents in charge of investigations, accumulation of evidence and exhibits and handling of suspects before they are arraigned in court, officers are expected to bring watertight cases to court and while at it, ensure the rule of law is upheld. This includes protecting the rights of the accused who, in law, are deemed "innocent until proved guilty".
In the last two months, the High Court in Nairobi and Nyeri has released about 41 suspects facing murder and robbery with violence charges because police held them for longer than 14 days before charging them in court.
Statistics from the Director of Public Prosecution's office show that of the 62 cases tried last year at the High Court in Nairobi, 17 were tried as capital offences and conviction obtained. But 28 suspects were acquitted, discharged or had their cases terminated while 17 were sent on probation or were jailed for less than three years.
Cause of justice
So far this year, 24 cases have been concluded. Of these, 20 received acquittals, discharges or termination. In only three cases were the accused convicted of murder and sentenced accordingly.
On violation of suspects' rights which has led to their being freed, judges have not hesitated to express their displeasure. One judge accused the police of "trying to return the country to the old days" when the law was not followed to the letter. "We are no longer in the 1980s," he is reported to have said as he handed 10 suspects their freedom.
And lawyers agreed with the judges that courts should firmly deal with breaches of constitutional rights of accused persons.
"To infringe a constitutional right is a very grave error. All other offences an accused is charged with will have to fall by the wayside when such violations are confirmed. The courts are there to ensure the law is upheld," said Mr Patrick Lutta, a lawyer.
The explanation by police that they needed more time to conclude investigations before taking suspects to court was unacceptable and stemmed from either impunity or ignorance, Mr Lutta said.
Criminal lawyer Evans Ondieki, said once an arrest has been effected, the police could do only one of four things: release the accused on cash bail, grant them free bond, take the suspect before a judge or magistrate for an extension of time or just take him or her to court to answer to the charges.
Recent years
As witnessed in courts in recent years, criminals trials reveal a glaring lack of consistency and grasp of basic principles and procedures associated with criminal investigations on the part of police.
This phenomenon is usually compounded by an apparent lack of coordination between the investigators and prosecutors, a scenario that often plays out in courtrooms and usually to the benefit of the suspects. A former state counsel blamed the situation partly on what he termed an attitude problem on the part of the investigators.
"The perception among officers is that they take orders from the Commissioner of Police in regard to investigations. The directions from the Attorney-General are not given any importance. Some even view state counsel as civilians," said the former state counsel, now in private legal practice.
According to him, complications arise when investigators involved in a case ignore requirements such as preparation of witness statements for parties in the case and providing witnesses among others.
That the Kenya police always finds itself in a tight corner on matters of investigations and nailing criminals is demonstrated by the many high profile cases that have remained unsolved for years and the number of key suspects set free.
No case captures the apparent ineptitude of police investigators better than the September 15, 2003 murder of Dr Mbai, then a delegate at the Bomas Constitutional Conference.
Senior Nation journalist Macharia Gaitho, commenting on investigations shortly after the killing, spoke prophetically when he doubted whether the police would net the culprits in the face of the major lapses in initial investigations.
Writing in the Daily Nation of September 18, 2003, Mr. Gaitho said: "Police who conducted preliminary investigations at the scene of Dr Odhiambo Mbai's shooting made a monumental blunder. They not only failed to secure the scene against interference and contamination but also compounded it all by allowing people to wash off the blood stains and generally clean the house before scene-of-crime experts conducted their examination. It is likely that they had no idea at the time that the victim would die in hospital and that what seemed like an ordinary botched robbery would become a murder case."
High profile
"Though the officers might not have imagined that it would turn out to be a high profile case with profound political implications, the initial "casual" attitude towards crime scenes has become typical of the Kenyan police.
"This is why no officer serving today recalls a successful arrest and prosecution in a high-profile murder case, especially where the suspects have the resources to hire expert lawyers that could tear police investigations and the AG's prosecution to shreds," Mr. Gaitho said.
Indeed after months of trial, the four suspects eventually charged with Dr. Mbai's murder, were set free after their lawyer Francis Njanja tore the state evidence to shreds.
Additional reporting by Daniel Wesangula
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