Why DPP is opposing plans to give EACC, NCIC prosecutorial powers

 Director of Public Prosecutions (DPP) Renson Mulele Ingonga. [File, Standard]

The Director of Public Prosecution Renson Ingonga is against amending the constitution to give prosecutorial powers to the Ethics and Anti-Corruption Commission (EACC) and the National Cohesion and Integration Commission (NCIC).

Ingonga who appeared before the Senate National Cohesion, Equal Opportunities and Regional Integration committee argued that if the two agencies are given powers to prosecute, the main target will be legislators who will be hunted most, citing that the agencies may abuse such powers.

Senators took Ingonga to task on why his office has been slow in prosecuting high-profile cases involving politicians accused of hate speech, incitement and inflammatory remarks and was at pains to explain why his office has failed to take action against hate speech mongers.

This after Ingonga told the committee chaired by Marsabit Senator Mohammed Chute that currently, he has only charged Naivasha MP Jayne Kihara, former Kiambu Governor Ferdinand Waititu and Mumias East MP Peter Salasya with various counts of hate speech.

“The Office of the Director Public Prosecution has established the Hate Speech and Electoral Justice Division, aimed at enhancing and strengthening the responsiveness of the office in the prosecution and investigation of election-related offenses and related crimes that undermine national cohesion,” said Ingonga.

According to Ingonga, the High Court stayed the prosecution and the plea taking of Kihara with a mention scheduled on November 27, 2025, the hearing of Waititu’s case has been scheduled for January 15, 2026 while that of Salasya is planned for January 17, 2026 respectively.

Chute questioned why the Office of the Director of Public Prosecutions is yet to prosecute any high-profile figures on hate speech and inflammatory remarks with the rising numbers of inflammatory remarks made by politicians ahead of the 2027 elections.

Ingonga told Senators that his office in partnership with other key institutions, has put in place mechanisms to curb and address inflammatory utterances by influential public and political figures and is on record opposing the release of high profile public or state officials on bond, pending investigations or trials

“The Office of Director Public Prosecution has held strategic meetings with the NCIC, Kenya National Commission on Human Rights, Directorate of Criminal Investigations to discuss collaboration and cooperation in investigations and prosecutions of election offences and related crimes,” said Ingonga.

He said that despite the establishment of the Hate Speech and Electoral Justice Division and the ODPP’s commitment to safeguarding democratic integrity, several challenges continue to hinder effective enforcement and prosecution of inflammatory utterances by public figures.

Ingonga told the Senate committee that the Office of Director Public Prosecution is plagued by among other challenges, inadequate funding and resource constraints, gaps in legal framework and state or Public officers.

He further explained the office is unable to conduct adequate public sensitisation campaigns, digital monitoring infrastructure, inter-agency coordination efforts, adding that his office is unable to train specialized prosecutors, deeply regional prosecution teams and conduct comprehensive election preparedness.

“The National Cohesion and Integration Act (NCIC Act) does not define key terms such as hate speech, incitement and ethnic contempt, creating ambiguity in so far as interpretation is concerned,” said Ingonga.

He requested an increase in budgetary allocation for the ODPP to enhance recruitment of prosecutors, amend the NCIC Act by reviewing and expanding definition of hate speech, incitement and ethnic contempt and to enforce Chapter Six of the Constitution on Leadership and Integrity Act.

Last week, the Kenya National Commission on Human Rights (KNCHR) accused the Office of Director Public Prosecution for withdrawing some high profile cases on hate speech and incitement.

The human rights body identified gaps in the National Cohesion and Integration Commission (NCIC) that is undermining the war on hate speech, inflammatory remarks and incitement to violence.

KNCHR argued that the definition of prohibited speech is focused narrowly on ethnicity and race, failing to adequately include other grounds of discrimination, such as gender, marital status, health status, disability, religion, age, or economic status, which also feature prominently in electoral violence.

The Human Rights Watch however, charged that the prosecution of modern digital hate speech encounters its most formidable obstacles within the Kenyan Evidence Act, Cap 80, concerning the admissibility of electronic records.

According to the Human Rights Commission, the Evidence Act contains two conflicting provisions regarding the admissibility of electronic evidence, resulting in destabilising judicial uncertainty, where section 106B imposes stringent conditions, mandating that electronic records be accompanied by a technical certificate detailing the manner of production and signed by the person responsible for the device's operation.

In addition, Section 78A of the Evidence Act states that this provision, introduced later, states simply that "electronic messages and digital material shall be admissible as evidence" and cannot be denied admissibility solely because they are not in original form.