Decision to charge always guided by law, says Haji

The Office of the Director of Public Prosecution (ODPP) has kicked off a series of online engagements to educate Kenyans on the process of lodging complaints and prosecution of cases.

The ODPP Café seeks to sensitise the public on the office handles cases. The initiative comes at a time the Director Public Prosecution (DPP) Noordin Haji has been faulted for not prosecuting all cases and fast-tracking others.

In some instances, he has been blamed for mishandling cases. For instance, in the case surrounding the arrest of two judges, he was blamed for ordering the exercise, which he has refuted.

Yesterday, acting Deputy Director of Public Prosecutions Victor Mule said the office does not lead investigations, it only guides and not all cases are prosecuted by the ODPP. However, all criminal cases taken to court are sanctioned by the ODPP.

"There is no situation where any investigative agency can go above the ODPP straight to court. This is because all charge sheets must bear the office's stamp and signed by a prosecutor," said Mule.

He added, “Once the DPP receives information of a criminal activity, he is empowered to direct an investigating agency to investigate the matter, then gets back the file and considers whether there is evidence to prosecute and move on from there."

But in the case of Justices Saidi Chitembwe and Aggrey Muchelule, the DPP said he was not aware of circumstances which led to their arrest or questioning and added that in the event their files are presented to his office for action, he would direct as is appropriate.

Mule said the decision to charge guidelines ensure uniformity, consistency and predictability. “This is to ensure justice, and therefore the investigator and the prosecutor have a framework to use,” said Mule.

He clarified that the decision to charge on corruption cases is mostly left to the DPP because he is the senior most prosecutor and well placed to make decisions on high profile cases.

“The DPP is bestowed with powers of prosecution, in exercise of these powers, he is also empowered under the ODPP Act to keep under review public prosecution policy and formulate policies for prosecution of cases to ensure efficiency and effectiveness,” said Mule.

He added: “To this effect, the DPP has come up with guidelines. In the guidelines, there are cases which should go to him, and one of the reasons why these cases go to him is because of their complex nature.”

Mule refuted claims that there are decisions influenced by politics. "To avoid that perception, it is best that the senior most prosecutor makes the decision," said Mule.

He also said before a person is taken to court, there are alternatives to prosecution. “We can divert by applying administrative sanctions, you can be demoted, surcharged for the laws, promotions withheld or giving warnings and restitution. This is done after a decision has been made to charge, but the ODPP gives reasons for diversions, and it is recorded,” said Mule.

However, diversion is not applicable to corruption cases.