Director of Public Prosecutions Keriako Tobiko warns Kakamega Governor Wycliffe Oparanya not to hire prosecutors

By CYRUS OMBATI

Kakamega, Kenya: Director of Public Prosecutions Keriako Tobiko has opposed plans by the Kakamega county government to appoint county prosecutors.

In a letter addressed to the secretary of the Kakamega County Public Service Board, Mr Tobiko advised against the planned recruitment, which he described as illegal and a gross violation of the Constitution.

This follows a series of recent mass media advertisements seeking to fill county prosecutor positions. The powers and functions of the county governments in the Constitution, Tobiko pointed out, do not include prosecution of criminal matters, as such powers are vested in the independent office of the Director of Public Prosecutions under Article 157 of the Constitution.

“Indeed, under the 4th Schedule of the Constitution, the enforcement of criminal law is a function of the national government,” Tobiko explained.

Reacting to the advertisements, Tobiko said the exercise of prosecutorial powers is exclusively, vested in his office or with officers appointed by the Director of Public Prosecutions.

“Although there is no dispute that the functions of the county government include establishment and staffing of its public service, such public service can only be for the discharge of functions and exercise of the powers bestowed on the county government either by the Constitution or any other written law.  As stated, this does not include the powers of prosecution,” Tobiko said in a statement to newsrooms.

Legal challenges

He said the hiring of “County Prosecutors” by the county would remain illegal, and that the county administration faces insurmountable constitutional and legal challenges in its ill-advised and unnecessary move.

He reminded the Kakamega County Public Service Board that proceeding with such recruitment/appointment could expose the county administration to potential criminal culpability for false assumption of authority, contrary to Section 104(b) of the Penal Code.

Reacting to Tobiko’s position, the Kakamega County Public Service Board said it would co-operate with the national government to establish the offices of prosecutors in the county to enforce laws passed by the assembly.

Rhoda Masaviru, chair of the board said they would comply with the directive from the office of the DPP.

“We advertised the positions because the county is required to enforce laws passed by the assembly,” she said, adding: “We are ready to co-operate with Keriako Tobiko’s office and follow what the Constitution stipulates about the appointments to ensure service delivery to the people.”