The DPP “nolle prosequi” entered in the criminal case between the Republic vs. Hon. Pauline Gekul, a Member of Parliament and an immediate Deputy Minister has reignited the debate against the powers of the DPP to terminate criminal cases without giving reasons, and the powerlessness of the victims to seek alternative retributive justice.
This matter is grave because the accused is the powerful woman who was the Ex-deputy minister and currently an MP sponsored by the ruling party, CCM. The accusations against her read like a pornographic movie revealing graphic details of raping a young man with a bottle as a means to extract crucial information of the people who had been allegedly dispatched this victim to poison the politician. The bottle is allegedly said to have been used to sodomize that young soul!
This young man is said to have been an employee of the accused in her hotel but she was tipped he is a hireling of her political enemies that are determined to terminate her life. The whole caboodle looks like a farfetched novel narratives or a horror movie, and is difficult to believe either side. Looks like each side is mixing half truths and lies to prop up their predicament.
For us, it is immaterial which side is right or wrong but whether DPP prosecutorial powers have been used properly without abuse of power. And, also in a case the victim is dissatisfied with the DPP actions, what options are available for him to seek restorative justice under criminal law.
We are alive that DPP prosecutorial powers are under the leash of the DCI – Director of Criminal Investigations. If the DCI recommends ending the criminal prosecution, the DPP is helpless but to follow suit. The DCI may claim there is insufficient evidence to advance the criminal proceedings but it is in the opaque that such pivotal decisions are being made and that raises red flags.
In this matter before us no reasons were presented to exculpate the DPP from accusations that it was succumbing to political pressure at the cost of the victim. The special presidential committee that was poring at criminal justice was supposed to pay attention to the DPP prosecutorial powers but until new amendments are tabled in the Parliament we are at loss to unearthen the gems lying hidden in their recommendations.
In the Landmark case of Joseph M. Mutashobya vs M/s Kibo Match Group Limited (Civil Appeal 53 of 2001) [2003] TZCA 21 (11 June 2003) [2004] TLR 242 [CA], the Tanzanian Court of Appeal ruled that according to common law public institutions must give reasons for their decisions to the affected parties of those decisions.
Bereft of reasons behind the “nolle prosequi” decision is afflicting injustices to both sides of the criminal case. The accused will always face the public backlash that she bought her respite while the victim will feel has been shortchanged because he is a lilliputian. The politician will be damaged goods unsuitable for public office while the victim and the general public will feel the law serves the powerful members of the society. Lack of reasons in the decision reached by public institutions such as the DPP office is bad news to all of us.
The Victim Lawyers Considered
The victims lawyers have promised an appeal against the “nolle prosequi” decision but we are asking ourselves whether they have a locus stand in criminal proceedings. One must be a party to previous proceedings to lodge an appeal, review or a revision and the victim was not a party to the proceedings in the resident magistrates courts.
So from which legal limb can the human rights advocates advance their legal assault bedazzle us. The criminal law does not permit the enjoinment of the accused and the victims in the proceedings, and courts being creatures of law it is difficult to see how the courts will uphold the rule of law without sticking to what the law stipulates.
The best option is to commence new civil proceedings against the DPP office that urge him to give reasons behind his “nolle prosequi” perspiration. Most likely, the DPP will seek succour that his office is tied to the DCI office that has indicated there is insufficient evidence to progress the criminal indictment.
The details of why the evidence is not sufficient to successfully mount the criminal prosecution could be an area where the legal representation apply in lodging their own criminal case against the accused. Unless the reasons are tabled by the DPP, the legal representation of the victim has virtually nothing to go on.
We also seriously doubt that the High Court has powers to investigate whether the DPP had sound and legitimate reasons to terminate the criminal matter. The court cannot evaluate that because it falls in the realm of the vagaries of “specific performance” that the courts lack the tools to ferret out.
Can the court evaluate the evidence to determine whether it is sufficient without affording a hearing to the investigators and all witnesses? The answer to that ought to be in the negativity. That judicial scrutiny will amount to a hearing within a hushed hearing of the terminated criminal proceedings of which the High Court lacks the jurisdiction.
There must be a hearing and concluded proceedings in a lower court with a ruling attached for the High Court to invoke her appellate jurisdiction, a situation which is not applicable here. A lower court is yet to conduct a hearing and complete it, establish her findings and make her ruling.
So that appeal amounts to a premature legal assault and a wrongful forum, and could be dismissed as such. Criminal victims must have another option away from the DPP.
Apart from the criminal law to require the DPP office to give reasons in the “nolle prosequi” decisions to promote transparency and accountability the victims too need a reprieve away from the DPP office.
If the DPP office enters a “nolle prosequi” the dissatisfied victim must be given a relief to lodge his own prosecution case without the assistance of the DPP. That will take care of troubling higher courts for matters that have not been disposed of on merits by lower courts.
At the moment, the victim can lodge own criminal indictment when the DPP refuses to take up the matter but in this case that door is shut because the DPP took the matter but dropped it before a hearing.
Our Concerns Captured
Unless the prosecutorial powers of the DPP are clipped, interrogated and transparency and accountability are restored these vast powers are subject to political and bribery extortion leaving the victims and the general public disgruntled.
Public institutions cannot make decisions affecting the livelihoods of the members of the public without incurring the wrath of fairness and reasonable considerations. The DPP office being a public institution cannot afford the luxury of hiding from facing the harsh realities of her decisions. Both the accused, the allegedly victims and the court of public opinion demand it.
