Last week, President William Ruto nominated the current Director of Public Prosecutions (DPP) to head the National Intelligence Service (NIS).
The nomination has elicited many opinions from various quarters, including civil society organisations and the public. These opinions concern his five-year legacy as DPP and his suitability to head the NIS.
Despite his constitutionally guaranteed independence, he has been criticised for withdrawing high-profile corruption cases and admitting he was heavily pressured to prosecute some people.
He has been praised for transforming ODPP by setting standards, procedures, and regulations to streamline prosecution. In the Guidelines on the Decision to Charge, prosecutorial discretion is described in terms of standards, duties, thresholds, and other factors. Their importance lies in the fact that they ensure a predictable, transparent and accountable institution.
A significant part of Noordin’s tenure involved a standoff with the Directorate of Criminal Investigations (DCI) partly because he stood firm regarding his sole discretion to charge. Before, the DCI prepared chargesheets without the DPP’s nod. Furthermore, the ODPP has adopted a central case management system that allows the prosecution to maintain a comprehensive record of all matters registered.
Regarding the performance of individual prosecutors and units within the ODPP, Haji will leave behind a Performance Management System (PMS), which establishes a secure repository and database for staff biodata, progress and career progression, including transfers, promotions and disciplinary actions. The system also enables the office to track staff career progression through transfers, promotions, service terminations and disciplinary actions.
Moreover, prosecutors have comprehensive medical treatment and healthcare services such as psychosocial support and therapy regarding chronic and lifestyle diseases. These services include mental health, specialist referrals, and first aid care. Also, prosecutors' salaries have greatly improved.
An audit of the criminal justice system was conducted by the National Council on the Administration of Justice in 2015. It revealed that our courts, remand centres, prisons and parole system were clogged with poor and young people, mostly charged with petty offences. In response, the ODPP is implementing a case review system. This will allow many on remand who cannot afford bail and bond terms to return home or hear their cases while home. In addition, in 2019, the DPP announced it would stop charging people for touting.
Another legacy of his is the establishment of the Prosecution Training Institute to provide tailor-made training and capacity building in prosecution, including in niche areas. This is useful because law enforcement in general is usually the last to change their thinking, tactics and procedures to respond to criminal activities that are ever evolving and changing. This has been exacerbated by technology and the digital world.
The institute also conducts research, including monitoring crime trends. Hopefully, it will spearhead progressive reforms such as declassifying and decriminalising petty offences. These offences are mostly colonial provisions meant to marginalise black Africans.
To address SGBV and prosecution involving minors, guidelines were set to govern evidence analysis and prosecution in those unique circumstances. Additionally, guidelines were developed to assist prosecutors when litigating complex cases involving serious human rights violations. As a result, over 300 police misconduct cases are being prosecuted. Convictions are now common. A compendium of such cases has also been developed, which speaks to police accountability progress. My assessment is that Haji leaves a stronger institution better equipped to protect Kenyans through prosecution.