Haji, Kinoti in new fight over investigation files
By Cyrus Ombati and Roselyne Obala | April 27th 2020
A fresh battle has erupted between the Office of the Director of Public Prosecutions (ODPP) and the Directorate of Criminal Investigations (DCI).
Officials at ODPP have questioned new rules introduced by DCI directing that original investigations files should not be forwarded to prosecutors.
In the new rules issued by DPP boss George Kinoti, prosecutors must obtain permission to access original investigation files.
According to the new rules, no original files or documents should be submitted to the ODPP. Files pending before court will only be submitted to the ODPP after a request is received in writing.
The orders are contained in an internal memo circulated to police commanders.
However, officials at the ODPP have dismissed the rules as illegal, untenable and unworkable.
“How can we prosecute a case without an original file or document? That is not possible,” said an official who asked not to be named.
“The constitution is very clear on such issues. Ask them how and why they are doing it,” said the official.
In some cases, officials from ODPP have worked with investigators in preliminary stages on investigations to help seal loopholes and build watertight cases.
But now the DCI has ordered investigators to ensure that investigation files are not forwarded to ODPP until the investigations are complete, saying this interferes with investigations, hampering and delaying the process.
Yesterday, Haji said he had not seen the said memo and therefore could not comment on its contents. Kinoti did not respond to our queries.
According to the memo from the DCI, all files to be forwarded to the ODPP should be in duplicate form, and all documents, if any, shall be in copies.
“It is the responsibility of the investigating officer to establish good rapport with the prosecuting counsel and also make arrangements for pre-trials with the key witnesses,” read part of Kinoti’s memo.
Investigators were directed to ensure that files slotted for hearing are forwarded to court three days prior to the hearing date, all witnesses bonded and exhibits ready for hearing.
In cases involving foreigners as witnesses, investigators through State counsel, are directed to request for special hearing to protect them from unnecessary adjournments designed by the defence to hurt them financially or fatigue them.
The memo directed investigators to ensure that witnesses who are threatened, intimidated and harassed by suspects and accused persons are protected through the Witness Protection Agency, and in case of any difficulties, to consult DCI headquarters.
“The duty of supplying witness statements and other documents rests solely with the investigating officers and must be taken seriously; supply only the required documents and nothing more,” stated the memo.
The memo further directed that defence should not be granted access to covering reports, investigations diary and corresponding letters.
The new developments come at a time of perceived tension between the two offices over their work.
This first surfaced last month when DCI officers arrested former Kenya Ports Authority Managing Director Dan Manduku and Kenya Revenue Authority commissioner Kevin Safari and attempted to prosecute them without sending the files to the ODPP.
The differences between the ODPP and DCI played out in the open in court.
Whereas the DCI, through lead investigator Gituathi Njoroge went to court armed with the case file, the ODPP through his assistant Joseph Riungu refused to charge the accused
Njoroge had insisted that he was ready to proceed with the charges, intimating that the DCI felt frustrated by the ODPP’s rejection of the file.
The court ordered Manduku and Safari released.
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