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Proposed amendment giving DCI prosecution powers disastrous

OPINION
By Demas Kiprono | October 15th 2021

Alego Usonga MP Samuel Atandi [Elvis Ogina, Standard]

Alego Usonga MP Samuel Atandi intends to introduce an amendment that would cede some prosecution powers from the Office of the Director of Public Prosecutions (ODPP) to the Directorate of Criminal Investigations (DCI).

It is premised on assertions that the DCI has qualified officers to prosecute some cases in court, a belief that the ODPP has been losing many cases because of lack of competent officers in certain technical areas such as cybercrimes and forensics, and that the ODPP Act of 2013 is unconstitutional.

The justifications for these proposals are grossly disingenuous and dangerous. The fact that some officers are qualified to prosecute is meaningless. If qualified DCI officers want to be prosecutors, nothing stops them from applying to the DPP. Many prosecutors qualify to be judges, however, you don’t see anyone seeking amendments to allow some prosecutors to be judges while serving under the office of the DPP. If they apply and are successful, they must resign from the ODPP for the Judiciary.

Moreover, the proposition that some prosecutors are not qualified in some technical areas is not supported by evidence. Further, even if that was the case, a constructive proposal would be to sufficiently train them in these fields.

The creation of the ODPP as a distinct and independent body was one of the hallmarks of the Constitution 2010. Pre-2010, the public prosecution role was headed by the Deputy Public Prosecutor who was under the Office of the Attorney General, a member of the National Executive who sits in Cabinet meetings. The separation post-2010 was designed to act as a firewall to prevent the government from dictating who and when to prosecute persons based on partisan considerations. In the past, criminal prosecutions were used to persecute political enemies.

Before, a certain calibre of cases was handled by police prosecutors, who were not necessarily trained in law and jeopardised the public good. This was done away with, initially in phases, when the ODPP was established and sufficiently funded to recruit lawyers with the requisite qualifications. Apart from the qualification issue, the police operated by rank and order, meaning an officer could be ordered to prosecute by their superior in the station, rather than by the head of prosecutions in the jurisdiction.

In the past few years, a dispute has come up regarding the preparation of charge sheets. In practice, the police arrest and disclose what a person has done in a charge sheet, which acts as the basis for a court to hear a criminal case. However, since under the Constitution, the DPP is the only person mandated to decide whether to prosecute, charge sheets must be approved by the ODPP before it is presented to court.

Under the law, the DPP may delegate prosecution powers to other people in other agencies and even private citizens. This is the case in poaching cases where qualified KWS officers, under their individual certificates, carry out delegated powers issued by the ODPP. Such prosecutors are ultimately working under the authority of ODPP and not their agency.

The Constitution gives Parliament powers to confer an agency with prosecution powers. However, in practice, statutory bodies or agencies with investigative mandates cannot also be prosecuting agencies. This would be dangerous because it may create separate centres of prosecution powers.

All actors in the criminal justice system should stick to their respective lanes and concentrate on enhancing their mandates. They must also all work together or they fail separately – ultimately failing all Kenyans.

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