DPP: Courts must be sensitive to our national security threats

By Stephen Makabila

Kenya: Director of Public Prosecution (DPP) Keriako Tobiko has spoken on the irony of dangerous terror suspects roaming the country’s streets after being granted bail in courts, and blamed the mess on loopholes in the new Constitution.

Tobiko  has also outlined  efforts by his office to deal with  complex forms of crimes, including terrorism, cybercrimes, money laundering and wildlife crimes which require specialised prosecution skills among other  burning issues.

“The new Constitution unlike the old one makes all offences irrespective of their gravity and seriousness bailable in court. Under the old order, capital offences like murder and treason were not bailable,” says Tobiko. The laws that grant bail to terror suspects have been under scrutiny lately, with analysts and legal experts warning that freeing terror suspects exposes the country to more risks. They say the country is handling suspects too softly despite the threat posed by the militants.

For instance, a suspect, Hussein Nur Mohammed, was accused of involvement in planning an attack in which an improvised explosive device was planted in a matatu in Pangani, Nairobi, last year. Before the incident, Mohammed had been released on bail as he faced terror-related charges in a Nairobi court.

 In an interview with The Standard on Sunday, Tobiko says: “The prosecution has to prove  compelling  reasons  for denial  of bail before a court.  The challenge  here is  that what constitutes ‘compelling reasons’ has not been  defined on law or the Constitution. This therefore leaves it to the interpretation of the magistrate  or judge  to decide  whether to grant bail or not.” Below are the excerpts of the interview.

QUESTION: Several notorious terror suspects roam free after they were released by courts pending hearing of their cases. Inspector General of Police David Kimaiyo says as things stand now, prosecutors and police could only plead with courts to order that the suspects remain in custody, since the courts were acting within the law. What is your take on the laws that grant bail to terror suspects?

ANSWER: Right of the accused person must be balanced  against  right  of national  security, public safety, protection of witnesses and victims and likelihood of absconding  or committing similar offences  once out on bail. The problem we have is that there is lack of standard guidelines on bails and bonds. Bail should not be an absolute right. Courts in deciding this must take into account such factors as  the gravity of the  offence, likelihood of a person fleeing the country especially for foreigners without  fixed abode, and lastly interests of victims and witnesses. Fortunate enough, there is now a taskforce set up by the Judiciary to  prepare guidelines on bails and bonds.

Security analysts and legal  experts are warning that freeing terror suspects is exposing the country to more risks. Comment.

Yes I agree, although there is a presumption of innocence, our courts should be sensitive to national security threats and the country’s general welfare.

How is your office dealing with the emergence of more complex forms of crimes requiring specialised prosecution skills?

In order to enhance specialised, effectiveness and efficiency in our operations, we have re-organised the Office of the DPP into four (Three technical and one facilitative) thematic  directorates  each headed by a Deputy Director. The thematical directorates are reorganised into specialised divisions, sections and Units such as the Narcotics, Cybercrimes and money laundering division, the counter terrorism division, the Internal Crimes Division, the Martime Policy Division, the Wildlife Crimes Division, the human trafficking unit and the anti-Female genital mutilation (FGM) unit. Staff in these divisions have been trained and imparted with professional skills.

In light  of  the Eastleigh  operation (Operation Usalama), has the deportation of the Somali aliens back to Mogadishu been done in accordance  to the law?

My office has not been presented  with any  evidence or claim or allegation that what has  been going on (the deportation), is not  in accordance with the law.

We have seen you make arrest orders for high profile cases. For example CBK governors and former minister Amos Kimunya. Do we expect more, and when?

I make decisions to charge  or not to charge  based on  evidence submitted  by police or the Ethics and Anti-Corruption Commission. I do not make decisions based on social status of individuals. I make decisions decisions based on evidence, fact and the law. If there is  evidence, I will charge  irrespective  of  whether one is a big fish or small fish.

Some times back, police investigations reported lack of evidence to prosecute about 4,576 post-election violence cases. You, however, indicated files were still open. Any evidence stumbled on since then?

Police are still facing the challenges they faced before and no file has been re-submitted to my office. I however want to make it clear that all the files remain open for evidence that can emerge now or in future.

You indicated one of the objective of the second conference held at the Kenya School of Government between April 14 to 16 was the re-launch of the Office of the Director of Public Prosecution (ODPP) Advisory Board. Why a relaunch?

The Board was inaugurated in March and has been in operation since then. The re-launch was only meant to introduce it to the public. The board has eight members among them Inspector General of Police David Kimaiyo, Chief Registrar of the Judiciary Ann Amadi, LSK chairman Eric Mutua, Kenya National Commission on Human Rights chairman  Ms Kagwirria Mbogori, Witness Protection Agency Director Alice Ondieki, Senior Deputy Solicitor General Muthoni Kimaki, Simon Angote from the Devolution and Planning ministry and Nimrod Waweru representing Treasury

The challenges you have highlighted as facing your office include inadequate budgetary allocation, acute shortage on prosecution and support staff and poor terms and conditions of service. Expound on these setbacks.

The total allocation for the ODPPP for the last three years amounted to Sh 4.8 billion against a resource requirement of  Sh11 billion.  We are lobbying Parliament to increase allocation in the coming financial year. Poor terms and conditions of service has resulted to  staff attrition but we are employing more. The conference we concluded on Wednesday offered an opportunity for the ODPP staff to reflect on achievements and challenges and identify our key priorities for the coming financial year (2014/15) so as to improve our standards of  prosecution and delivery  of services to the public.

You have equally been complaining about lack of ICT infrastructure, a weak legal and policy framework for administration of criminal justice coupled with outdated penal, evidentiary and procedural law practices.  What is being done about all these?

We have launched an ICT document and we are also in the process of revamping the ICT department both at the head office and in county offices. With assistance of donor partners, we are finalizing development of  a case management system.

In a nutshell, what has the ODPP achieved since its inception three years back, and are its ear-marked target ahead?

The ODPP is different, more robust, effective and efficient than when it was de-linked  from the Attorney General (AG) in July 2011. IT meets the best regional and international standards in terms of professionalism, independent, efficiency and effectiveness. Achievements are four-fold. So far, we have completed its design and architecture, expansion and decetralisation, improved professionalisation of prosecution  services and staff welfare.