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There is no choice; DPP and DCI must cooperate

By Opiyo Wandayi | June 1st 2020 at 12:00:00 GMT +0300

DPP Noordin Haji (left) and DCI boss George Kinoti. The framers of our laws did not envisage a situation where the two agencies would work at cross purposes. [File]

The rivalry between the Director of Criminal Investigations (DCI) and Director of Public Prosecutions (DPP) may be the weakest link in the fight against corruption. It should not be allowed to persist. That the two offices are critical components of the criminal justice system cannot be overemphasised.

And whereas these authorities exercise distinct constitutional mandates, they remain interdependent and, therefore, close cooperation between them is essential in safeguarding public interest. The framers of our laws did not envisage a situation where the two agencies would work at cross purposes, even for a moment.

It is not in doubt that the current holders of the offices are men of impeccable integrity who have shown rare commitment to their respective duties. They deserve our full support.

Universally, the purpose of any criminal justice system is to realise the rule of law, which is one of the most fundamental conditions for the sustainable development of societies. For this purpose, justice has to be given to those who have broken the law while protecting due process of law.

Accordingly, the investigative agencies, such as our own DCI, are empowered to conduct investigations to give justice to suspects, whereas prosecutors are empowered to check the investigation conducted by the police and to mount prosecution, if tenable, following the due process of law. In other words, prosecutors are vested with the responsibility of checking the investigative process and outcome against due process of law.

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Criminal proceedings

In order to protect the independence and authority of the DPP, Article 157 (10) of the Constitution provides that the DPP does not require the consent of any person or authority for commencement of criminal proceedings and in exercise of his functions, he is not under the direction or control of any person or authority. The DPP is, nonetheless, under duty to take into account and safeguard public interest in the exercise of his mandate.

Under Article 244(b), police are mandated to prevent corruption and promote and practice transparency and accountability. The DCI is established under section 28 of the National Police Service Act and is under the direction, command and control of the Inspector-General of the National Police Service.

It’s instructive that under Article 157(4), the DPP has power to direct the Inspector-General of  to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.

Legal practitioners agree that the decision to prosecute or to discontinue a prosecution is weighty since prosecutions that are not well founded in law or fact or do not serve the public interest may unfairly expose citizens to the anxiety, expense and embarrassment of a trial while the failure to effectively prosecute guilty parties can directly impact public safety. Wrong decisions invariably tend to undermine the confidence of the public in the criminal justice system.

It’s largely for this reason that the DPP must undertake two critical tests before initiating prosecution; evidential and public interest tests. Evidential test is the most crucial of the two and the DPP must employ and be satisfied about it, before he gives the green light for prosecution.

Documentary evidence

He is required to read and assess the complaint, the recorded witness statements, documentary evidence and other material to determine whether or not there is sufficient evidence to support a credible prosecution. He must be satisfied that there is realistic prospect of conviction. If the evidence is not sufficient, the prosecution ought not to be instituted.

But even where a case satisfies the evidential test, the DPP must employ a further test, the public interest test. This is usually more complex and demands of the DPP the highest professional judgment and keen awareness of the social, political and economic environment in which any prosecution must be conducted.

Where the DPP forms an opinion that there are public interest factors militating against instituting a prosecution, the same ought not to commence. Common sense dictates that such findings by the DPP need to be shared with the DCI in the spirit of mutual trust.

It follows that meaningful prosecution is contingent upon the successful accomplishment of the acts of investigation by the DCI, that is, collection of all necessary and essential evidences as required by the DPP. Accuracy of findings of the probe or the pieces of evidence and legality thereof are two subtle issues of investigation.

The accuracy of the finding of the investigation is an aspect which is governed by the science, technology and skills of the DCI, whereas the legality of such evidences is always protected by the act of oversight of the DPP. The coordination between the DCI and the DPP during investigation is thus not only vital, but absolutely mandatory. Any failure in coordination between these two authorities or agencies can have far-reaching ramifications for the society, as well as the liberty of individuals.

Clearly, it goes without saying that both the DPP and the DCI are mandated to protect public interest in the criminal justice system and to prevent and avoid abuse of the legal process. What is required is mutual goodwill between the two authorities.

It would be difficult to imagine the DCI investigating a case individually, without coordination of actions with other agencies and particularly the DPP, especially when complex, multi-episodic cases are involved. The world over, the efficiency of crime investigation and prevention depends, largely, on cooperation between prosecutors and investigators and it is necessary to, at all times, nurture reciprocal understanding between them.

Parliamentary oversight committees, especially the Public Accounts Committee, routinely recommend further investigations by the DCI, and sometimes the Ethics and Anti-Corruption Commission (EACC), on matters before them for purposes of establishing criminal culpability.

It is usually expected that the DCI/EACC would coordinate with the DPP in these investigations to not only ensure the realisation of justice but also to assist Parliament in enforcing accountability in the management of public funds. Clearly, public institutions or agencies, must work in harmony for the common good.

 

Mr Wandayi, the MP for Ugunja, chairs the Public Accounts Committee in the National Assembly


DCI DPP Public Accounts Committee George Kinoti Noordin Haji
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