We must invest in prosecutorial services to earn dividends of justice

By APOLLO MBOYA

Following the promulgation of the Constitution 2010, Office of Director of Public Prosecutions (ODPP) was officially delinked from the State Law Office in July 2011.

The position and Office of Director of Public Prosecutions is created by Article 157(1) of the Constitution with wide ranging powers of prosecution.

Article 157 and 158 of the Constitution that gives authority to the Director of Public Prosecution (DPP) to control prosecutions in the Republic of Kenya has been given effect by the ODPP Act No 2 of 2013, which came into effect on January 16, 2013.  The Act provides for powers, functions, accountability and reporting mechanism of the DPP among other functions.

Pursuant to Article 157(4) of the Constitution, the DPP has power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

The DPP may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and discontinue at any stage before judgment is delivered, any criminal proceedings instituted by the DPP or taken over by the DPP subject to the permission of the court.

The powers of the DPP may be exercised in person or by subordinate officers acting in accordance with general or special instructions and in the exercise of these powers or functions, the DPP shall not be under the direction or control of any person or authority so long as the DPP has regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

Power to decide whether a particular case should be forwarded to courts or filtered out of the system is regarded as the central function (the sine qua non) of every prosecuting authority.

Organised crime

The ODPP has been steadily enhancing staffing capacity to match the Judiciary strength from an initial establishment of 93 legal staff to the current 161 legal staff against an establishment of 927. All 304 Police prosecutors in the country have been audited to determine their experience, competence and suitability and have been individually gazetted.

A Multi-Agency team has already finalised a report on modalities for their absorption in to ODPP.

The established staffing norm is two prosecutors for every Supreme, Appeal and High Courts’ judge and one prosecutor for every magistrate.

The ODPP, therefore, has to recruit additional 533 Prosecution Counsel in order to meet the deficiency and match the on-going expansion of the Judiciary boasting of 104 judges and 436 magistrates.

Section 43 (1) of the ODPP Act provides that at least three months before commencement of each financial year, the office shall cause to be prepared, reviewed, and forwarded to the National Assembly estimates of the revenue and expenditure of the office for that year for tabling and approval in the National Assembly. The office prepared and forwarded its estimates of expenditure on March 28, 2013. ODPP submitted resource requirements amounting to Sh5.268 billion to the National Assembly. However, the office has only been allocated Sh1.260 billion resulting in a resource gap of Sh4.008 billion.

In the current financial year, the ODPP has been allocated Sh1.12 billion against a requirement of Sh4.538 billion (recurrent budget) and Sh148 million against a requirement of Sh730 million (development budget). Compare to the Judiciary’s Sh12.3 billion (recurrent) and Sh2.8 billion (development) budget.

It means that the allocation for ODPP in 2013/14 is only 8.30 per cent of the allocation to the Judiciary.

The underfunding of the ODPP has the net effect of undermining the provision of prosecution services with the attendant breakdown in law and order and the rise of insecurity.

The ODPP is an important cog in the wheel of justice, which the country can ill afford to neglect. The emergence of new forms of criminality including organised crime, especially money-laundering, terrorism, drug-trafficking and the ever-increasing complexities of substantive and procedural law make the police more dependent on the prosecutors for legal advice.

In Kenya, like in many common law jurisdictions, this has evolved into forms of co-operation that provide the prosecutor with some influence in the investigation process itself.

There are several instances in which prosecutors have not effectively monitored police investigations via police-constructed files because many police files contain insufficient and sometimes misleading evidence with the result that weaknesses often come out only in or after the trial. On numerous occasions the police investigations tend to focus prematurely upon a police suspect, sometimes overlooking other crucial evidence. Inadequate prosecutorial services, therefore, not only affect investigations but also judicial services leaving the public as a victim.

For Kenya to experience dividends of justice we have to invest more resources in prosecutorial services to match those of the Judiciary especially in training and improving terms and conditions of the prosecutorial counsel.

The writer is Secretary/CEO at the Law Society of Kenya.