For the past few years, a fissure has emerged between the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP), headed by George Kinoti and Noordin Haji, respectively.
The bone of contention has been where the power and decision to prosecute resides and other actions, including publishing guidelines on prosecution and procedures specific to prosecuting terrorism by the ODPP. The DCI claims ODPP did not consult it.
However, the root of the tiff appears to be the 2010 Constitution, which removed police involvement in prosecution. It drew a line in the sand by separating the DCI and DPP roles into distinct but complementary ones. Before, police officers of a certain rank formed a large part of prosecutors. They regularly drafted charge sheets in a system under the Deputy Public Prosecutor, who was under the office of the Attorney General.
After the 2010 Constitution, police officers were phased out of prosecutorial duties. The ODPP is now manned by advocates of the High Court who deputise the DPP, who has exclusive power to prosecute. Notably, the pre-2010 criminal justice system was riddled with allegations of a predatory and compromised system used to punish political opponents and fell short of the principles of the presumption of innocence and the right to a fair trial. Moreover, the police, prosecutors, judges, and magistrates appeared to take orders from the Executive.
The new Constitution, thus, gave the ODPP security of tenure and exclusive authority over all prosecutions. Investigations were left to investigation agencies such as the National Police Service and the DCI for particular crimes. Other agencies with investigative powers include the Kenya Revenue Authority (KRA), Kenya National Commission on Human Rights (KNCHR), the Anti-Counterfeit Agency, and the National Cohesion and Integration Commission (NCIC). The new status quo has been confirmed by two High Court decisions, including the recent Justice Mrima decision that declared that only the ODPP has the authority to prepare charge sheets.
In an unprecedented move, the DCI boss sent out a circular implying that the DCI had been "reduced to only forwarding our investigations to the DPP", which is ironic because the "reduction or transference of duties" was done in 2010 by the people of Kenya. The circular further directed officers to stop recording statements, taking fingerprint samples, preferring charges and giving evidence in court. It can be interpreted as a directive to officers to down their tools based on disagreement with a lawful order of the court.
Any affront to the Constitution and the rule of law deserves attention from everyone, including Parliament, the president and the National Council on the Administration of Justice (NCAJ). Parliament should move quickly to align the pre-colonial Criminal Procedure Code with the Constitution of Kenya. Remember, Article 2 of the Constitution provides that any law inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.
The current situation is unfortunate because it threatens to paralyse the criminal justice system, which is a vital tool in the State's mandate to protect Kenyans' lives, property and rights. The criminal justice system is a chain with many players with distinct but complementary roles spanning arrest, investigation, prosecution, rendering judgment, correctional services, punishment and probation and after-care services.
A breakdown in any part of this chain, such as investigation and gathering of evidence, undermines the entire process and only serves to threaten Kenyans' security and human rights. It paralyses efforts to tame terrorism, defilement, rape and sexual violence, robberies, fraud and other crimes.