The battle for control of prosecutions between the Office of the Director of Public Prosecutions (ODPP) and the Directorate of Criminal Investigations (DCI) went up a notch yesterday when an activist moved to court to protect police powers.
Activist Okiya Omtatah claims that DPP Noordin Haji has usurped police powers with regard to investigations and is dictating their operations, contrary to the law.
His petition was filed on the same day the Supreme Court, in a separate matter, pronounced itself on the powers of the DPP, saying he “neither requires the consent of any person to institute criminal proceedings nor is it under the direction or control of any person or authority.”
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Omtatah said in his application “the DPP has usurped powers of the National Police Service regarding police’s mandate to investigate crimes and charge suspects.
“He has no mandate to supervise and manage police investigations.”
Before the filing yesterday, there had been no let-up in the fight between Haji and DCI boss George Kinoti.
Last week, Kinoti had backed down on arresting graft suspects approved for prosecution by the DPP.
And when he launched the The DCI magazine last week, he vouched for independence of investigations, saying Article 245 of the Constitution demanded as much.
In his message, he wrote that any direction by the DPP is limited only to information.
Kinoti also denied he too was usurping prosecution powers as the High Court sitting in Machakos found out.
“The accusations are not only misleading but malicious and are intended to crucify and persecute me for standing against deep rooted, organised, moneyed, connected and very influential patrons of key sectors and entities who have for a long time milked dry this beautiful country,” he said.
Suffocating criminal justice
In his case, Omtatah argues that the clash between the pair is suffocating and suppressing the criminal justice, with many suspects being let free.
He attributes this to the DPP’s refusal to approve their charges.
The fallout played out in public when the DPP’s office initially refused to approve charges of illegal awards of tenders against former Kenya Ports Authority (KPA) boss Daniel Manduku after he was taken to court.
The DPP has since approved the charges.
Omtatah blames the DPP for the misunderstandings between the two offices, arguing that he has been usurping powers by directing police investigators and publishing guidelines on the decision to charge suspects, which he says are unconstitutional.
He alleges that the DPP has been shielding some suspects by sitting on investigation files for years without taking action even after police investigations are complete and exhibits provided.
He cites the recent cases of Migori Governor Okoth Obado and Maasai Mara University vice chancellor Mary Walingo, where he said the DPP illegally set up a team of prosecutors to guide investigators on their work.
“It demonstrates the contempt with which the DPP has been operating since the Constitution does not give him powers to direct the police in respect to investigations of any offence,” Omtatah says in his court papers.
He says all prosecution documents, including exhibits, originate from the police and the DPP can only ask investigators to provide him with more evidence after the suspect has been charged in court.
Omtatah wants the court to determine when the DPP can reject a charge, arguing that it is only after a suspect has been presented in court and charged that the DPP can take over the prosecution.