Demystifying nolle prosequi and its effects on fundamental human rights in Kenya and South Africa.

Author: Mutakha, John Kangu

Awarding University: University of South Africa

Level : LLM

Year: 1995

Holding Libraries: University Microfilms International ;

Subject Terms: Criminal law ;

Pages: 0

Advisors: Adviser: Joubert, J J

Abstract:

The issue of the use of the concept of nolle prosequi by the Kenya Office of the Attorney General to terminate criminal proceedings commenced by either the Attorney General or private prosecutors has in the recent past became controversial. As the controversy rages on, a detailed study of the use of the concept and the effect such use has on fundamental human rights in both Kenya and South Africa has become imperative. This is achieved by setting the concept in its English common law historical background. It is revealed by the study that there has been a gross abuse of the concept in Kenya with resultant violation of fundamental human rights. This abuse seems to be encouraged by the reluctance of the courts to assume supervisory jurisdiction over the exercise of the Attorney General's discretionary powers. Through a detailed reference to the approach adopted by the English and Australian courts, it is submitted that the abuse of the concept can be checked and/or avoided if the Kenya and South African courts play their dutiful role.