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How police and prosecution turf wars hurt justice system

By Irungu Houghton | October 3rd 2020 at 00:00:00 GMT +0300

Jesus Christ is one of most significant people to be arbitrarily arrested and denied a fair trial in history. Does the way he was treated give us another perspective on current attacks against the Office of the Director of Public Prosecutions and efforts to streamline the criminal justice system?

The story of Jesus’s arrest, trial and death is well known. Accused of heresy by the High Priest Caiaphas and Supreme Judge of Judea, he was brought before a Sanhedrin court at night. Witnesses were fabricated and although they were found to have lied, they were not punished.

Jesus’s testimony, that he was indeed the Messiah, was never considered. His accuser became his jury, crucifixion was swift and more importantly, unjust and final. The danger of arbitrary arrests and flawed trials are not only illustrated in the Bible. They are mentioned in the Koran, other religious texts and are now the basis of several international human rights instruments and the Constitution.

Prior to 2010, the Attorney General was the Chief Public Prosecutor. The AG served in the Cabinet at the pleasure of the President. Lacking both independence and human resources to prosecute nationally, prosecution in lower courts was delegated to the Kenya Police. While not everyone arrested under this model of justice can be compared to Jesus, like Judea in AD 30, the model was intentionally used to criminalise poor people and deny basic human rights like the freedom of expression.

Thousands of Kenyan journalists, workers, lawyers, lecturers and farmers found themselves detained indefinitely, tortured, denied legal counsel and imprisoned simply because the ruling administration didn’t like them. 

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It took the 2010 Constitution to effectively delink prosecution from the AG and create the ODPP as an independent office. The National Police Service and within it, the Directorate of Criminal Investigations, retained the power to investigate and arrest but lost the power to prosecute. Our current vision of a fair and just system hinges on this separation of power and responsibility.

Despite this fundamental shift, sadly most Kenyans still fear arbitrary arrests, prolonged detention or extortion by police officers. Last year, I sat between the National Police, Director of Criminal Investigations and Director of Public Prosecutions. We listened to four hours of testimonies by Kayole youth on policing in low-income neighbourhoods that included arrests by armed officers drunk on duty, extortion, detention in unmarked vehicles and sexual harassment at AP posts.

I would hope this experience and the National Council on the Administration of Justice 2017 report, informed the multi-agency taskforce consultations that led to the launch of new Decision to Charge Guidelines on 28 July. The new guidelines establish a minimum standard that each case must meet a threshold of evidence and be in the public interest.

Barely two months after the launch, the ODPP is now under siege. If we believe the press, the unity of purpose between the Director of Criminal Investigation and Director of Public Prosecutions is over. Fighting corruption attracts litigation and public statements daily.

What is interesting is the new voices who have joined those currently in court for alleged economic crimes. Last month, public litigant Okiya Omatatah petitioned the court twice and called for Noordin Haji to be declared unfit for office. The September 3 petition seeks to stop the implementation of the new decision guidelines and the ODPP from directing the Inspector-General to investigate any crime under Article 157(4) of the Constitution. The September 24 petition attempts to stop the ODPP from plea-bargaining with corruption suspects or to imposing fines on banks who have handled stolen money.

It would be simple to see this either as Police and ODPP turf wars, corruption cartels fighting back or state operatives wanting to return Kenya to the 1980s. The greater significance lies in the danger to the future of our criminal justice system. 

Decades of police prosecutions have produced countless unlawful arrest claims, trumped up charges, congestion and low rates of convictions for serious crimes.

Recent cases of police brutality, citizens and elected representatives arrested during curfew, held over-night, renditioned across the country and presented in courts with incomplete investigation files are well known. Most of these cases have not met the evidence threshold required in the new guidelines and cases have been unable to proceed. Within this in mind, the push for the National Police Service to regain the power they had in the one-party state is alarming. The attacks on the ODPP are not be in the public interest.

-The writer is Amnesty International Executive Director. He writes in his personal capacity. [email protected]

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