NAIROBI: As Kenya awaits the decision by Director of Public Prosecutions (DPP) Keriako Tobiko on whether he will sustain or dismiss prosecution against Government officials who allegedly stole Sh800 million in the National Youth Service (NYS) scandal, it is imperative we interrogate the mandate of this critical office against public expectations, which in my opinion, continues to soar unfulfilled.
Recently, we commemorated the promulgation of our new Constitution that was majorly inspired by the people’s views. One of the biggest achievements in the Constitution was the establishment of an independent office of the DPP.
The importance of the DPP’s office cannot be gainsaid. It was established in the new constitutional dispensation to restore public confidence in our judicial system, which had been put under threat by jurisprudential inefficiency, corruption in the corridors of justice and external interference in criminal proceedings.
The Constitution mandated the DPP’s office with three main responsibilities, namely; directing the police boss to investigate unlawful conduct, instituting and/or presiding over any criminal proceedings in the courts of law and terminating ongoing criminal cases as needed within outlined protocols in the constitution.
Five years down the line, the DPP’s office has got nothing substantial to quench public expectations for equal and unadulterated justice. In most cases, the status quo prevails. The dillydallying in presenting files for prosecution remains an impediment throughout the process of delivery of justice in a timely fashion. Under the DPP’s watch, impunity has more than doubled. Criminal conduct is rampant, yet it doesn’t get punished with the aggressive severity it deserves.
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In my opinion, the DPP’s office hasn’t demonstrated the required prosecutorial earnestness. Although the law insulates DPP’s office from unnecessary interference, somehow it executes its functions under a fearful environment that’s influenced by mysterious forces. The DPP’s office seems to lack enthusiasm in prosecuting crime.
Yet, with an overwhelming number of economic and general crime cases, the public wants to see the DPP’s hands busy juggling binders full of names of the lowly and the mighty and prosecuting them in equal measure and without fear or favour.
Unfortunately, it seems the DPP’s office has become the proverbial bottomless pit where “high voltage” criminal files drop and die in a cold. Instead of allowing all files to be tested by the judicial process in the court of law, the DPP’s office appears to terminate some of them at will.
What the DPP is doing is not what we anticipated when we established his office. It seems the DPP has implicitly assumed the role of the investigator, prosecutor and the judge in contravention of the doctrine of separation of powers as enshrined in our democratic principles.
What is even more concerning is that the DPP lacks the prosecutorial exuberance to order the police boss to institute criminal proceedings against incessant cases of crime.
Granted, some cases may be incapacitated by lack of “water-tight” evidence that can result in successful conviction of suspects.
However, as long as there are reasonable grounds to believe crime was committed, the judge should be the ultimate decider in every case, not the DPP. It is not in the DPP’s place to dismiss cases without presenting reasonable and believable explanation to the public.
Perhaps Mr Tobiko should be reminded that our judicial system has a due process to which every accused individual must be subjected.
They must then be cross-examined and be found either guilty or innocent. The due process shouldn’t necessarily result in a guilty verdict. Rather, due process rests on the foundations of acquittal or conviction, depending on the strength of the evidence adduced.
If the evidence is insufficient, it is the prerogative of the judge to acquit the accused. When evidence is compelling, it is the prerogative of the judge to render a guilty verdict. By terminating or dismissing cases on grounds of insufficient evidence, the DPP is tampering with the justice process.
The DPP must move with speed to reassert the independence of his office before public confidence is diminished. He has enough powers and a clear mandate. He must act not in the interest of the powerful but in the interest of the people of Kenyans, who employed him and pay his salary.
Mr Ambuka is a socio-political analyst
