Shortage of prosecutors renders criminal justice ineffective

By STEPHEN MAKABILA The country is on the brink of a criminal justice crisis owing to the inability of the Office of Director of Public Prosecutions (ODPP)’s to recruit prosecutors due to limited funding.In an exclusive interview with The Standard On Saturday, Director of Public Prosecutions (DPP) Keriako Tobiko said failure to have urgent and adequate recruitments would invite anarchy."I have raised the issue of paralysis in the administration of criminal justice with the highest offices. I see as a consequence a serious threat to national safety, security and maintenance of law and order if criminals have to go scot-free because of lack of prosecutors," said Tobiko.The gross inadequacy of the existing prosecutorial capacity is further aggravated by the present demands on the ODPP to finalise the trial of the outstanding 5,500 cases arising out of the 2007/2008-post election violence."Given the gravity and urgency of the problem, I am engaging the Treasury. I am also in constant contact with the head of Public Service and the Police Commissioner because without an urgent resolve, the very noble effort of the Chief Justice to transform the Judiciary may not succeed," noted Tobiko.Five days ago, Tobiko wrote to the Acting head of the Public Service, Francis Kimemia, over acute shortage of prosecutors.The letter dated April 16, reads in part, "As you recall, I appeared before the National Security Advisory Committee on October 26, last year, and made a presentation on the dire situation regarding shortage of prosecutors in the country, a matter which not only impedes delivery of justice but also poses a real threat to national peace and security."Tobiko’s letter was copied to the PS Ministry of Finance, Joseph Kinyua, PS Ministry of Internal Security, Mutea Iringo, PS Ministry of Public Service, Titus Ndambuki, and the Secretary of the Public Service Commission, Bernadette Nzioki.Sh689M deficitKimemia, who had earlier on October 18, last year, written to the DPP appreciating his office, had received a number of petitions from the public across the country about their suffering due to limited number of prosecutors. "The expansion of the Judiciary by opening courts in different parts of the country promises an easier access of the criminal justice services sooner. This however will only happen if the number of prosecutors will match that of the courts. The shortage of prosecutors has been one of the impediments to the criminal justice delivery," noted Kimemia.While the Ministry of State for Public Service and the Public Service Commission had a few months back approved recruitment of 350 prosecutors as a stopgap measure, Treasury only released funds for 66, positions that are to be advertised next week. On December 28, last year, Financial Secretary Mutua Kilaka wrote to Tobiko advising him to utilise existing capacity as a cost effective and sustainable option, as he awaits recruitment of more staff."The recruitment of new prosecutors should only be considered in the context of the 2012/2013 financial year budget," wrote Kilaka.The approval to hire the 66 prosecutors was issued by PS Kinyua in a letter to the DPP dated January 27. But allocations to the ODPP under the expected financial year, leaves the office unable to carry out any additional recruitments."Treasury had indicated we recruit in the 2012/2013 financial year but the allocation so far given for the coming year cannot allow us to recruit. We requested for Sh939 million for personnel emoluments, but only Sh250 million has been allocated, leaving us with a deficit of Sh689 million," said Tobiko.In the expected financial year, the ODPP has been allocated Sh790 million for both personnel emolument and development, out of the Sh3.3 billion it had requested. The allocations to the ODPP, according to Tobiko, are far much less as compared to the Judiciary and anti-corruption commission."While the ODPP had Sh355 million in the current financial year and is expecting 790 million in 2012/2013 financial year, the Judiciary had Sh8.8 billion in 2011/2012 and is expecting 9.7 billion in 2012/2013, whereas the anti-corruption commission had 1.8 billion in 2011/2012 and is expecting the same figure in the coming financial year," added Tobiko.The current staff strength of the ODPP as compared with the Judiciary, Tobiko explained was highly imbalanced, forcing a single prosecutor to serve three courts in some parts of the country. "While we require 930 prosecutors as per a recent consultancy report, we currently have only 93 prosecutors, meaning our current capacity is 10 per cent of our required strength. Every one prosecutor is doing work for 10 prosecutors and this has made them burdened and demoralised," added Tobiko.Require re-training On the other hand, the Judiciary has 350 magistrates with another 160 in the process of being hired to bring the figure to 510, 80 High Court judges with another 8 being recruited, 11 Court of Appeal Judges whose number is to be increased to 30 and seven judges of the Supreme Court."The Judiciary has already written to us informing us to be ready for the additional work when the 160 magistrates come on board, yet our recruitment ability has been curtailed due to financial constraints," added Tobiko.International norms require that at least two prosecutors serve one judicial officer for effective delivery of justice. He said while the ODPP intends to bring on board the current 290 police prosecutors, they will require to undergo re-training first.

Shortage of prosecutors renders criminal justice ineffective

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