Recently, opinion has been divided over the withdrawal of court cases by the Office of Director of Public Prosecution.
The debate, however, seems not to acknowledge that the ODPP is operating within a legal mandate when withdrawing cases with the court's permission.
The debate also seems to imply that these withdrawals are both "overt and systematic" and not based on solid evidence. Clearly, there seems to be a lack of understanding of fundamental principles of prosecution and sheer misrepresentation of various legal provisions, including those in the Constitution.
Prosecution is one of the core components of the criminal justice chain. The role of prosecution is entrusted in the Office of the Director of Public Prosecutions (ODPP) as enshrined under Article 157 of the Constitution.
Further, Article 157(10) provides that the DPP does not require the consent of any person or authority for commencement of criminal proceedings and in the exercise of its powers or functions, the DPP shall not be under the direction or control of any person or authority.
However, in exercise of his powers, the DPP is bound by the provisions of Article 157(11) that require the DPP to have regard to public interest, the interest of administration of justice and need to avoid abuse of the legal process.
Investigative agencies are required to adhere to various provisions of the Constitution. To institute criminal prosecutions, the ODPP depends on various investigative agencies.
Section 2(1) of the ODPP Act defines an Investigative Agency as, “in relation to public prosecutions means … Ethics and Anti-Corruption Commission…”.
Once an investigative agency submits its findings, the ODPP is required to peruse the file based on laid down criteria.
Section 4 of the ODPP Act provides the guiding principles that must be adhered to in whatever decision the ODPP takes.
These include; the rules of natural justice, the need to serve the cause of justice, prevent abuse of the legal process and public interest, among others.
Prosecution should not play a passive role and prosecute every matter presented by an investigative agency that does not meet the threshold.
One of the cardinal duties of a prosecutor is to ensure proper facts are placed before court for adjudication hence the need to constantly review decision to prosecute.
Justice EK Ogola in the case of Hassan Ali Joho vs Inspector-General of Police and 3 others [2017] eKLR where the court held that, “This court observes that Article 157 of the Constitution does not merely mean that the Director of Public Prosecution is a conveyor belt for each and every investigations and findings placed before him. The office of the DPP is duty bound to interrogate the investigations presented to it and ensure that they comply and meet the Constitutional threshold.”
The decision to prosecute is one of the most important aspects in the criminal justice chain. The decision to prosecute is weighty and cannot be left to the hands of an investigator.
The Prosecutor bears the ultimate responsibility in making the decision to prosecute. The DPP bears sole responsibility to interrogate every aspect of an investigative file.
The ODPP is not and should not be a conveyor belt. The ODPP works in coordination with various investigative agencies. The entire criminal justice system is like a chain that should not be broken, it is a complementary relationship.
To execute its mandate, the Ethics and Anti-Corruption Commission (EACC) must work in harmony with the ODPP and must appreciate that we are in a new Constitution dispensation of clear checks and balances.
Every criminal investigation is geared towards finding the person culpable for a criminal offence. All criminal offences require that elements of each offence be fully investigated.
The ODPP is required to ensure all necessary evidence is gathered, and no loopholes are left. Once investigations are completed, the same is submitted to the prosecutorial agency to give appropriate direction, which may include no further action is required, or to investigate further certain critical areas, or direct the matter to diversion, among others.
Before the 2010 Constitution, the Police Force (as it then was) was both the investigator and prosecutor in all lower court matters.
The prosecutorial office was a mere department under the Office of the Attorney General. ODPP was delinked from the Office of the Attorney General after the promulgation of the new Constitution.
The system of checks and balances introduced by the Constitution must be always maintained to ensure fairness.
An investigator cannot be a prosecutor at the same time. This fulfils the old saying that a person cannot be a judge in his own case.
EACC is an investigative agency and its duties are laid out under Section 11(1)(d) of the Ethics and Anti-Corruption Commission “investigate and recommend to the Director of Public Prosecutions the prosecution …” None of the responsibility includes prosecutorial function, let alone the role of a secondary prosecutor.
A Prosecutor is also required to constantly review the evidence on record in order to ensure quality prosecution. Section 5(4)(e) of the ODPP Act provides for the power to review a decision to prosecute or not to prosecute any criminal offence.
Successful prosecution requires thorough investigations using modern investigative techniques. All players in the chain must play their role and work seamlessly.
-The writer is an advocate of the High Court and mediator
