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Prosecutors are going beyond their mandate

By Lempaa Suyianka | April 10th 2020

The interconnectedness and dynamism of the world mean that organised crime is more sophisticated than ever before. It is important that we reflect upon the role the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP) in upholding the rule of law.  

Under the old constitution, police officers were both investigators and prosecutors. Technically, they were under the direction and control of the Attorney General.

The investigators had no structural operational, functional and financial independence. Investigations then faced risks of political influence and interference. This was cured by the 2010 Constitution.

The object of prosecution is not to secure a conviction at whatever cost – it is to serve the interests of justice. The prosecutorial role is distinctive from the investigative role.  

The contribution that the prosecutor brings to the investigation is professional detachment and objectivity.

The ODPP is not part of the investigation agencies. This means prosecutors should not personally involve themselves in criminal investigations.

They also must not create a perception that they are in court to secure the conviction of suspects.

The duty of a prosecutor, as an officer of the court, is primarily to the court. Prosecutors must assist the court to arrive at a just verdict, not secure a conviction at all costs. This includes divulging exculpatory evidence in court.

Co-operation between the investigator and prosecutor should not breed confusion. The distinction between the roles of the duo should not become blurred. The investigator is the best person to perform the function of collecting evidence. The prosecutor can review, advice and direct the investigator. 

However, he or she remains an officer of the court with certain ethical obligations. It is important that the prosecutor maintains a healthy distance from the actual gathering of evidence to ensure that these ethical obligations are not compromised.

However, by insisting or demanding certain type of evidence even before the case is registered in court by the police, the ODPP is plunging itself into the realm of investigation.

The prosecutor has to be wary not to end up as a fact witness. There may be cases where a prosecutor has become so steeped in the investigation that he/she should not prosecute that case. This situation can be avoided.

The law allows the DPP to direct the Inspector General of the National Police to investigate any information or allegation of criminal conduct.

This power is well circumscribed in law. It is should not be construed as micro-managing the office of the DCI. The ODPP must not confuse this power with that of oversight or superintending police work. 

The law allows the police to obtain forensic evidence in some cases that cannot be obtained immediately. The ODPP would, therefore, be interfering with the investigation or preventing the DCI from holding a suspect in accordance with the Constitution, pending investigation.

Under the criminal procedure, it is the DCI or the magistrate who drafts a charge sheet. The role of the ODPP is to advise the police when the charge sheet is registered in court, not to stop the police from registering a charge sheet.

The ODPP by law does not have powers to order an arrest. In the recent past, the ODPP has even called press conferences ordering the arrest of certain suspects. This amounts to naked usurpation of the powers of the police.

Extra evidence

The ODPP cannot commence a case in any court in Kenya before it is registered by the police in court and given a court number. For any case to be registered in court, it must have a police file number. That is why the DPP’s argument that he approves charges before they are filed in court is not practical.

The police arrest tens of thousands of suspects daily, and requiring the express authority of the ODPP before charges are filed in court would stagnate police work and the entire criminal justice system.

The registration of a case in court does not mean that it is ready for prosecution. The DPP comes in when the case is ready to be heard where his input on what extra evidence is required comes in handy. This is by filling in the gaps in evidence, but not dismissing the case altogether.

In any case, magistrates have powers, under the law, to order the prosecution to amend the charge sheet if, in their opinion, it is defective.

The ODPP has all the powers under the criminal procedure code to amend or even to terminate the case and order more investigations, but not to stymie charges before they are registered in court on the pretext that he must approve charges. 

Mr Suyianka is an advocate of the High Court of Kenya

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