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Kinoti’s powers under siege as DPP ratifies new rules on criminal cases

By Kamore Maina | July 29th 2020

Inspector General Police Service Hillary Mutyambai, Director of Public Prosecution Noordin Hajji, Chief Justice David Maraga, Interior CS Fred Matiangi during the launch of Office of the Director of Public Prosecution (ODPP) Decision to Charge Guidelines and Case Management systems at the Prosecution Training Institute in Nairobi. [Elvis Ogina, Standard]

In a move that could further seal his fate, Directorate of Criminal Investigations boss George Kinoti yesterday snubbed a government meeting that ratified new policy guidelines that will affect the operations of his office significantly.

The meeting, attended by his seniors, Inspector General of Police Hilary Mutyambai and Interior Cabinet Secretary Fred Matiang’i, Director of Public Prosecutions (DPP) Noordin Haji launched the new parameters that will determine how prosecutions are conducted in Kenya.

A new case management system was also launched.

But Kinoti neither showed up nor sent a representative from the DCI to the meeting whose chief guest was David Maraga, the Chief Justice and President of the Supreme Court.

The other significant absence at the event held at the Prosecution Training College in Loresho, Nairobi, was that of Attorney-General Kariuki Kihara. Ethics and Anti-Corruption Commission (EACC) CEO Twalib Mbarak attended.

“There is nothing strange about the DCI not attending. He was attending to other State functions,” Mutyambai told The Standard when we sought to know where Kinoti was.

The DCI boss was one of the keynote speakers listed on the programme.

“When you see the IG here, you should know that Kinoti is represented,” Mutyambai said.

Yesterday’s events came hot on the heels of a court ruling last week that frustrates DCI. In the matter, High Court Judge George Odunga ruled that the DCI had no powers to institute criminal proceedings unless the DPP gives consent.

No power and authority

“The DCI has no power and authority to institute criminal proceedings before a court of law without the prior consent of the DPP and any proceedings so commenced are unconstitutional, illegal, unlawful, null and void,” the judge ruled.

Credible sources at the DCI’s Kiambu Road offices told The Standard last evening that Kinoti had been advised by his aides to give the event a wide berth.

The officers felt that they were kept in the dark in the development of the guidelines.

But the real bone of contention, we learnt, was the feeling within the DCI that the guidelines significantly eat into its hitherto powerful roles in the justice, law and order processes.

“We think this was to be an assault on the DCI as an institution. How then can the DCI (Kinoti) attend an event that is designed to frustrate his work?” poised a senior officer.

But at the meeting, the guidelines were being praised for keeping up with demands of the times — the 2010 Constitution and the emerging international law standards and practices — and for burying a shameful past.

They provide a two-stage test — evidential and public interest test — which must ensure credibility, availability of evidence, reliability of witnesses, the culpability of a suspect, impact of crime on community and status of the victim, among others.

They impose the burden on prosecutors to satisfy themselves that there is sufficient evidence to provide a realistic prospect of conviction before making a move.

Section 4.2 of the new guidelines gives the DPP powers to determine criminal charges.

“It is the duty of the prosecutor to determine the charges for which the accused takes plea, taking into consideration the proposed charges by the investigator,” reads the guidelines.

This section, the DCI claims, amounts to interference in the work of the investigators by the DPP.

“You will get opposition in some of your new initiatives. We faced the same at the Judiciary,” Maraga said as he urged Haji to brace for a tough time as the new guidelines are likely to face opposition.

Matiang’i called for support to the Office of the DPP while raising the need to strengthen independent institutions as a way of entrenching democracy.

He said the new guidelines would enhance a seamless working relationship between the investigators and the prosecution.

Section 2.1 of the guidelines provide a framework for resolving disputes arising between prosecutors and investigators.

“The NPS (National Police Service) needs to offer all support to the DPP,” Matiang’i said.

Mutyambai praised Haji for the new guidelines and pledged the support of the police in their implementation.

”We have a good working relationship (with DPP) and we are devoted to serving Kenyans,” the IG said.

Twalib said the new guidelines will enhance synergy between investigators and prosecutors.

“We often get blamed for not working. Now we have the tools that are required,” he said.

Law Society of Kenya (LSK) President Nelson Havi described the guidelines as a “great milestone”, which will enhance transparency in the criminal justice system.

The guidelines

“It is a great milestone that also places enormous responsibility on the DPP,” Havi said.

But DCI insiders claimed that the guidelines were contravening sections of the Constitution touching on the operations of the DCI.

They cited Section 245(4) of the Constitution, which says no person may give a direction to the Inspector-General with respect to the investigation of any particular offence and the enforcement of the law against any particular person or persons.

“It is my unwavering conviction that these guidelines will positively impact the decisions made in the institution of criminal proceedings and the quality of prosecution.

“It will also enhance prosecutorial accountability and enhance the transparency of a process that is perceived to be shrouded in mystery,” Haji wrote on the foreword of the guidelines.

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