RESPECT FOR PROSECUTORIAL INDEPENDENCE IS NOT A FAVOR BUT A CONSTITUTIONAL EDICT

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Introduction

Recently the Office of the Director of Public Prosecutions (the DPP) and that of the Directorate of Criminal Investigations (DCI) has faced baseless allegations framed in the form of misconduct including arrests of suspects, detentions and searches, denial of bail/police bond.

The allegations seemed to have gathered steam due to the arrest of previously untouchable group of Kenyans and not on the basis of the interests of majority of Kenyans or justice. This paper therefore seeks to, separate the truths from the untruths, half-truths, insinuations and innuendos that form the common thread in the attack of the two important offices in the republic’s criminal justice system: the ODPP and the DCI. The attack seek to be prompted by person who seek to maintain status quo and protection of ill-gotten wealth.

Importance of the DPP in the Criminal Justice System

The importance of the Criminal Justice System in a country such as ours cannot be overemphasized: it ensures that those who breach the criminal laws thereby hurting the societal fabric are held accountable by being punished for their offences and that those that are innocent are set at liberty. At the center of the criminal justice system is the DPP and his powers to charge, institute criminal charges, and take over criminal cases which are provided for under Article 157 of the Constitution that establishes the office as well as the ODPP Act (Act No. 2 of 2013).

Concurrent Criminal and Civil Proceedings

One Advocate, who seems to be senior, suggests that it is legally improper to institute criminal proceedings where the basis of the charges is also the basis of civil proceedings. Nothing can be far from the truth. Section 193 A of the Criminal Procedure allows for concurrent criminal proceedings such that even where they are ongoing civil proceedings between a suspect and some other person, the suspect may still be prosecuted where there is basis for charges.

DPP’S Exercise of Powers

The DPP, in the exercise of his Constitutional mandate is guided by the Constitution, Acts of Parliament such as the ODPP Act, the National Prosecution Policy which enjoined to consider the supremacy of the Constitution, the national values which includes rule of law, human dignity, transparency and accountability; and fundamental rights and freedoms, an integral part of which includes fair administrative action and right to fair trial.

In deciding whether or not to institute charges or undertake a prosecution, the DPP of importance is guided by the evidential and public interest tests which demand that charges are only pressed against persons where the available evidence is sufficient and also the factors to be considered before a review of the decision to prosecute or not to prosecute is made.

Arrests, Detentions and Searches, Right to Bail

There have been claims that the DPP and the DCI have conducted arrests on Friday and detained suspects over the weekend without police bail. Relatedly, there have been accusations that search warrants have been issues ex parte to the DPP and or the DCI.

The DPP has endeavored to ensure that all arrests carried out by the DCI have been within the dictates of Article 49 (1) (f) which demand that accused persons be brought before court as soon as reasonably possible, but not later than twenty-four hours after being arrested; or if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.

It is also worth noting that the purported cries have only been heard when persons occupying influential positions in society have been involved: Wanjiku have been arrested on Fridays and detained over the weekend without as much hues and cry. What is so special about the now seemingly big sharks! It is a clear picture of the influential personality demands to be treated differently. The law must and should be applied equally without regard to the status one occupies in the society or his or her bank balance.

As regards the searches, the Criminal Procedure Code (CPC) provides for manner of conducting searches. The CPC and the National Police Service Act contain provision which provide circumstances when a search can be conducted without a warrant. Whenever circumstances dictate, the DPP and DCI have always applied for search warrants before competent Courts of Law.

As regards the right to bail, Based on Article 49(1)(h), all arrested person produced before courts of law are entitled to seek their release on bond or bail, pending charge or trial. Hon. Justice Fred A. Ochieng held in the case of Republic –vs- Ahmed Mohammed Omar & 6 Ors, High Court Nairobi Criminal Case No. 14 of 2010, that “… the right to bail pending trial is not absolute”. The Bail and Bond Policy Guidelines at Para 4.26(a) is to the effect that the prosecution shall satisfy court, on balance of probabilities, of the existence of compelling reasons that justify the denial of bail.

The Prosecution in cases where circumstances dictate, has always filed an affidavit in objection to bail. The affidavit usually contain what has been referred to as compelling reasons. This is based on professional judgment by the investigators and prosecutors but not as a matter of course.

DPP’s Press Statements to the Public (use of Twitter)

The DPP has been accused of allegedly prosecuting his cases through the courts of public opinion and or in the media. As the custodian of the State powers of prosecution, the DPP, in the public interest is bound to account for prosecutorial decisions and therefore the making of public statements is well within the law as the public has a legitimate expectation to receive information from the office of the DPP regarding the prosecution of criminal matters.

The right to access to information held by Government and the requirements for Fair Administrative Action further supports such action. This is well within Articles 33, 34, 35 and 47 of the Constitution.

Further, it should not be assumed at any rate that the Defence or better still the accused persons have a monopoly to disseminate information concerning their cases since all parties have a stake in the dispensation of justice. It is the expectation of justice consumers (including the ODPP) that the trial Courts presiding over case base their judgments of evidence presented before them

Independence of the DPP

The Constitution at Article 157(10) envisages that the DPP in the exercise of his powers shall not require the consent of any person or authority for the commencement of criminal proceedings. Further the Constitution insulates the DPP from the direction or control of any person or authority in the exercise of his powers as long as the DPP’s actions have a regard to public interest, the interest of the administration of justice and the need to prevent and avoid abuse of legal process

The import of Articles 157 (10) and (11) of the Constitution is to the effect that no authority – not even the Courts – should whimsically interfere with the DPP’s exercise of his powers as to whom to charge and whom not to charge as long as the same is done within the provisions of the Law.

Separation of Powers

The doctrine of separation of powers which enjoins each of the three arms of government including – the Legislature, the Executive (under which the ODPP exists) and the Judiciary – to exercise its separate and independent powers to ensure that the powers of one arm are not in conflict with the powers associated with the other branches and demands, in the Kenyan Legal System, that the Judiciary (more so the High Court) is reluctant to usurp the powers of the Executive (the DPP) unless there is clear basis for so doing.

Under the doctrine, each arm of the government including the Judiciary is prohibited from exercising the core functions of another. Further, the doctrine prohibits the concentration of unchecked power by providing for “checks” and “balances” to avoid over-reaching by the courts on the mandate of the DPP. The judiciary must and should operate within the reality in Kenya. The judiciary must ensure that its decisions do not result in unintended schemes or incentives to open floodgates by the high and mighty in society.

In the case of Raila Amolo Odinga & Another vs. Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, the learned Honorable Supreme Court Justice, Lady Justice Njoki S. Ndung’u warned that failure to respect the doctrine of separation of powers would lead to Judicial Tyranny, remarked that the Judiciary just like the other arms of Government must operate within its Constitutional Powers and not ultra vires and that.

The learned justice added that the system of checks and balances that prevents autocracy, restrains institutional excesses and prevents abuse of power apply equally to the Executive, the Legislature and the Judiciary and that no one arm of government is infallible and all are equally vulnerable to the dangers of acting ultra vires the Constitution.

Of more importance is the holding that the parameters of encroachment on the powers of other arms of government must be clearly delineated, limits acknowledged and restraint fully exercised.

High Court’s Powers over Constitutional Institutions

Without a doubt, Article 165 (3) (d) of the Constitution, the High Court at the heart of Courts’ constitutional duty to protect the mandate and integrity of all constitutional institutions, offices and state organs as far as constitutional issues are concerned. The High Court is thus empowered to supervise the state institutions and agencies (that exercise state powers) including the DPP.

However, this power – as has been held by a number of judicial decisions of the land – must be exercised sparingly. Judicial interference with the DPP’s exercise of powers and independence should be the exception and not the rule. The courts should only intervene where it is clear that there has been or is impending a glaring abuse of power.

Where the judiciary is quick to issue orders quashing, staying and or prohibiting prosecutions where there’s no proper basis, a reasonable man on the streets of Nairobi may mistake the Judiciary to be siding with those that hurt the country’s economy by engaging in corruption and or economic crimes and against whom charges have been pressed. The Judiciary may not, in such unfortunate circumstances, run away from fingers being pointed in its direction. The public, in response, can therefore not be said to be “yelling in ignorant anger.” The reasonable man – Wanjiku – is no longer ignorant. He is neither is he misinformed as the reasonable man of Lord Atkin’s time. The public does not have to be incited by anyone, least the DPP as suggested by counsel.

All other arms of Government have institutional mechanisms to check on institutional excesses but does our Kenyan Judiciary have mechanism for judicial accountability? We must therefore as a Country start working on introducing effective systems to ensure judicial accountability.

While the principle of presumption of innocence has been waived to an extent of appearing to be a magic wand especially to the economic saboteurs, it should not be in anyway used as blanket cover to the criminals. As was pointed out by Hon. Justice (Rtd) Anyara Emukule in the case of Republic vs. Milton Kabulit & 6 Others [2011] eKLR:

The principle of presumption of innocence does not however mean that one may commit grave offences at will, and brag that he is innocent until the contrary is proved. To my mind all that the principle means is that the accused shall be subjected to due process of law before he is condemned or more appropriately, he is on the evidence found guilty, convicted and sentenced or punished according to law”.

The ODPP and DCI have tirelessly worked in ensuring that the all arrested suspects are subjected to due process and their constitutional rights are guaranteed.

Comparative Qualifications of the DPP and High Court Judges

The DPP is indeed a lawyer with qualifications for appointment under Article 157 being the same as for the appointment as a judge of the High Court. The framers of the Constitution could not have come up with this qualifications for ornamental value. This must have been born out of a realization that the independent office of the DPP must have the capacity to assess any matter just like a High Court Judge would do and arrive at a decision that would withstand the test of time just like a judge’s decision unless overturned would remain in the annals of history. This reasoning is fully supported by an avalanche of authorities from our own courts and foreign jurisdictions as here-below. That’s why the Court is not the DPP and cannot therefore substitute its own decisions with that of the DPP.

One of the reasons therefore that the Courts should not interfere with the DPP’s decision is on the basis of DPP’s qualification being similar to that of a Judge of the High Court. The Judges should be very reluctant to interfere with decisions of the DPP as regards institution of charges and prosecutions unless that is the only thing that is available to the court.

Limits of Judicial Interference with Prosecutorial Independence

Despite the aforementioned independence of the DPP and in a glaring attack on the doctrine of separation of powers, there has been an unfortunate increase in the interference, judicial and otherwise, with the operations of the DPP. This has had the net effect of slowing down the fight against crime and the effectiveness of the criminal justice system.

Persons suspected and or accused of penal and economic crimes have constantly rushed to court and obtained conservatory orders most with the effect of prohibiting prosecutions – intended or active – against such persons, some of whom may have led to the loss of billions of shillings and led to dents on the country’s economy.

There begs the question as to what in what instances should the High Court intervene? It is our view that such interventions should be in the clearest of cases and courts should guard against the issuance of ex parte conservatory orders especially where the applicant seeks to stop a prosecution and does not provide any explanation as to why he could not serve the DPP for the office to appear and make representations. With tremendous respect, the courts should guard against acting as a safe haven for fugitives from justice.

In the case of Diamond Hasham Lalji & Another vs. The Attorney General & 4 Others [2018] eKLR, the Court of Appeal in stressing on the importance of Prosecutorial Independence held that the decision of the DPP should not be reviewed solely on the ground that it was based on misapprehension of facts and the law.

In restating the importance of the Doctrine of Separation of Powers to the exercise of the DPP’s powers, the court further held:

[34] It is also indubitable that the constitutional prosecutorial power of DPP is reviewable by the High Court as Article 165(2)(d)(ii) of the Constitution ordains. However, the doctrine of separation of powers should be respected and the courts should not unjustifiably interfere with the exercise of discretion by DPP unless it is exercised unlawfully by, inter alia, failing to exercise his/her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual”.

Similarly, in the Case of State of Maharashtra & Others vs. Arun Gulab & Others, Criminal Appeal No. 590 of 2007, the Supreme Court of India stated:

The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction to the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it “soft-pedal the course of justice” at a crucial stage of investigation/proceedings.”

Further, in Regina vs. The Director of Public Prosecutions, ex parte Manning, ex parte Melbourne: (QBD 17 May 2000), Lord Bingham of Cornhill LCJ said:

Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review… But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else.”

Judiciary tyranny should not be permissible in a democratic society. Certain orders issued by Courts have been viewed as judicial misconduct e.g, why stay (stop) investigations while the investigations might actually clear the suspect! There is no denying that the corruption cartels in Kenya have attained the level of state capture and the judiciary should not permit itself to be seen as gate keepers to the cartels.

Conclusion: There’s Nothing Wrong in the DPP being Overzealous in the Fight against Crime

As a general rule, therefore, courts should be very reluctant to interfere with prosecutorial decisions made within jurisdiction and should only do so in the very rarest of the rare cases I n the spirit of respecting the doctrine of separation of powers and to ensure further that the Courts do not act ultra vires.

There’s therefore nothing wrong with the DPP being overzealous in the exercise of his duties in order to protect public interests. The fight against crime – and more so the endemic cancer of corruption needs some zeal. If protecting the interest of all Kenyans of goodwill and taxpayers is being overzealous, so be it. All Kenyans, including advocates in the private practice, must join hands in the fight against the vice. There’s a new sheriff in town