The supremacy battle between the Directorate of Criminal Investigations (DCI) boss and the Director of Public Prosecutions (DPP) is taking a different turn, and is even becoming petty.
In the latest twist, the DCI George Kinoti wants DPP Noordin Haji arrested for forgery, claiming that the latter doctored an attendance list of Terrorism and Terror Financing Act stakeholder forum that was held in March.
The veracity of such claim is not for us to judge. What is not in doubt is that the latest tiff is just but a tip of the iceberg in the long-running war between the police and the prosecution, two very important offices in delivery of services within the criminal justice system, and in governance.
The war is informed by the 2010 Constitution, which took away criminal prosecutorial powers from the police and vested them in the Office of the Director of Public Prosecutions. In the colonial times, senior police officers exercised magisterial powers, and after independence, this was not changed even though the Judiciary was properly formed.
The Constitution did away with this and one of the duties of the Directorate of Legal Affairs within the National Police Service is “forwarding of criminal files to the Director of Public Prosecution.”
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This was reinforced through the July 2020 ruling by High Court Judge Justice George Odunga that the DCI has no powers to initiate criminal charges without the approval of the DPP.
The essence of that ruling was to streamline operations, not create bad blood between these two critical institutions in the fight against corruption. The DPP and DCI are not in competition, they exist to complement each other.
The need to remove prosecutorial powers from the police was informed by several factors, and the most basic one is separation of powers and responsibilities and also elimination of conflict of interest, for an accused could easily manipulate the constabulary.
The police do not seem to have accepted the fact that prosecution is no longer a constabulary duty and theirs is to investigate, and hand over the files to ODPP to appear in court on behalf of the State, on behalf of Kenyans, and argue the case in the best way possible.
Several cases have been lost because of this sad situation since the police want to prove a point, and for lack of a better word, are out to sabotage the ODPP, and thus lead to miscarriage of justice.
It is common knowledge that the ODPP has advocates who understand the Penal and Criminal Procedure codes better, and that, due to their training, the police cannot claim to have wherewithal to engage advocates who represent offenders and magistrates or judges who also are advocates.
This is not to say that the ODPP is a perfect and saintly entity, but the police must give the ODPP the assistance and space necessary to carry out its mandate as entrenched in the Constitution, because their continued fight is not beneficial to Kenyans, the people who their offices are charged to serve.