Verdict on prosecution escalates dispute between Haji and Kinoti

DCI boss George Kinoti (left) and Director of  Public Prosecutions Noordin Haji speak at the Buru Buru police station on August 3, 2020. [Collins Kweyu, Standard]

Last week’s judgment that any charge sheet not prepared and signed by lawful prosecutors will be quashed by the court has escalated the row between the Directorate of Criminal Investigations (DCI) boss and the Director of Public Prosecutions (DPP).

On Sunday, DCI boss George Kinoti directed his officers to stop recording statements, preferring charges and giving evidence in court.

This followed last Monday’s directive by Justice Anthony Mrima, warning the DCI against drafting, signing or presenting any charge sheets in any criminal prosecution.

The judge said only DPP Noordin Haji is conferred with prosecution powers and further directed courts to ignore any charge sheets not prepared by the DPP.

“In compliance with the court ruling, the Director of Criminal Investigations directs that no investigating officer will record a statement in respect to charges or give any evidence in respect to the same,” Kinoti directed, adding that prosecutors who prepare, draw and sign the charges will take over these roles.”

“Any officer who declines these directives shall be held in contempt of court and shall be held personally responsible,” Kinoti’s directive warned.

Yesterday, Haji poured cold water on impressions created that he procured the favourable judgment, in the latest of the many cases against pitting their two offices. In a statement last evening, Haji said he was fighting on the same side as Kinoti on this matter.

He said his office did not seek the orders granted by Justice Mrima nor any other orders. Nevertheless, he said, the decision reinforced similar findings of four other courts which placed prosecutions in his forte. He also said he is not interested in taking up the role of an investigation as that is not his domain.

“Any impression to the contrary created by persons with ulterior motives to undermine the criminal justice system is false and an attempt to subvert the constitution and disobey lawful court orders. The prudent and civil recourse for any party aggrieved by the judgment of the Court is to seek appropriate legal address,” Deputy DPP Victor Mule said.

Mule denied that the court gave orders on a specific form of the charge sheet to be deployed or whether it directed DPP to usurp DCI duties as implied. He said Haji’s office will comply with the decision in the public interest, the interest of the administration of justice, and the need to prevent and avoid abuse of the legal process.

Before the pair fell out, they worked like Siamese twins while cracking some of the major graft cases. They exhibited renewed energy and synergy giving suspects and their accomplices sleepless nights.

“A declaration hereby issued that prosecution of criminal offences in Kenya must only be undertaken by lawful prosecutors, being either the DPP or such other persons exercising the delegated powers of the DPP,” Justice Mrima ruled, setting off the latest feud between the two.

Justice Mrima’s order was not however directed only at DCI. It also targeted Kenya Revenue Authority (KRA), the Ethics and Anti-Corruption Commission (EACC), National Police Service (NPS), Anti-Counterfeit Agency (ACA), Kenya National Commission on Human Rights (KHRC) or any government agency.

Elvira Wilunda, an advocate of the High Court, said a proper interpretation of Mrima’s judgment was needed lest thousands of litigants and offenders suffer for it.

She said the DPP does not have the machinery to investigate or take fingerprints, both key components of the criminal justice

“There is a need for the court to interpret and issue guidelines in line with the judgment so that roles of each party, including the ODPP and the NPSC, are spelt out clearly,” she stated.

Henry Karauka, an advocate of the High Court, said the two offices are interdependent.

“One cannot succeed without the other,” said Karauka.

Deputy DPP Dorcas Oduor said the orders were directed to the Inspector General.

“We are sure that if they have a difficulty with the judgment, they will seek the counsel of the Attorney General for advice.”