Kinoti and Haji advised to iron out their differences

Director of Public Prosecution(DPP) and Director of Criminal Investigation(DCI) George Kinoti when they appeared before the Senate Justice and Legal Affairs Committee to shed light on the war against Corruption at Parliament on December 5, 2018. [Boniface Okendo, Standard]

Lawyers yesterday urged Directorate of Criminal Investigations (DCI) head George Kinoti to work more closely with Director of Public Prosecutions (DPP) Noordin Haji.

In separate reactions to Tuesday’s clash between Mr Haji and Mr Kinoti, former DPP Phillip Murgor and former Committee of Experts on Constitutional Review chairman Nzamba Kitonga said it is only the DPP who can present a criminal case before a court.

They said the DPP is allowed by the law to review a file or return it to the DCI for further investigations. The DPP can also amend a charge sheet or withdraw any proceedings before court.

Mr Murgor said Kinoti can only pursue a criminal case in person through private prosecution, but any matter investigated by his department has to go through the office of the DPP.

"The sole authority of prosecution is on the DPP, not the DCI. The DPP is the boss of the DCI and the command flows one way and not the other,” said Murgor.

According to the lawyer, the 2010 Constitution took away the power to prosecute from the Attorney General to the DPP, hence ending the era of police prosecutors.

"Under the old law, the AG had delegated prosecution to the police but that does not exist. The DPP is in charge of the prosecution. The DPP is not his colleague; he is his boss. The DCI cannot order the DPP to prosecute,” said Murgor.

Nzamba observed that, in practice, the majority of files do not go through the DPP. He gave the example of traffic cases and other minor offences where the police make an arrest, prepare a charge sheet and take it to the prosecutor to press charges.

"It appears the departure between the two is only on ‘big names’ where the DPP and his senior team have to authorise for the suspects to be arrested."

The lawyer said there are instances where the DPP can terminate a case upon reviewing a file if a suspect complains of being unfairly charged.

Trouble started after Kinoti prepared a charge sheet and presented Kenya Ports Authority boss Daniel Manduku in court before a junior prosecutor.

But in a dramatic turn of events, the DCI boss was stopped in his tracks after Haji, through his assistant Joseph Riungu, refused to register the charge sheet because he had not independently reviewed the file.

"They do not have to agree. The DPP is a lawyer and he evaluates the evidence and decides either way. From what I understand, there are many cases that have not been approved,” said Nzamba.

The lawyer suggested that Haji and Kinoti could reach an informal arrangement on the timelines of approving, reviewing or returning investigation files.

"Time is ripe for the country to review the laws on criminal justice system as some of the issues now cropping up between the DCI and DPP can only be resolved through amending the criminal laws," said Nzamba.

The lawyer warned that suspects would suffer if the two offices continued fighting.

Law Society of Kenya President Nelson Havi had argued that arresting Manduku was in contempt of court, which had given him anticipatory bail and ordered police not to detain him.

"Kenya is not a police state. We have institutions anchored in the Constitution. Any law enforcement agency cannot enforce the law if they violate the same law. We wonder why the DCI would want to press charges the DPP is unaware of."