Former Chief Justice David Maraga has warned that the fight against corruption is bound to fail, citing plans to remove the security of tenure of the DPP.
He argued that the proposed amendment to the Constitution to repeal Article 158 would expose the DPP to work at the whims of the President.
The Constitution of Kenya (Amendment) Bill, 2020, under the BBI initiative seeks to delete the procedure for removal of the DPP.
Maraga in an interview aired on Citizen TV on Thursday night said this would result into the removal of the security of tenure of the DPP, and as such would be exposed to state machinations keen on frustrating justice.
“How are you going to fight corruption when you have exposed the DPP?” Maraga asked, adding that the article was put in the Constitution deliberately.
“How do you expect the DPP to order the investigation of a Cabinet Secretary when he knows he’d be hounded out of the office? It throws out of the window, the fight against corruption,” he said.
Maraga said the Constitution provisions on the DPP tenure followed the days when the Attorney General prosecuted cases; an era he argued gave room for pursuit of political causes using the justice system.
“Remember when the AG used to conduct prosecution, some cases were political. Cases would start and proceed and once the ends were achieved, they were vacated…a total abuse of the process,” Maraga said.
He added that Kenyans decided to give DPP security of tenure for six years non-renewable, to make the office independent and take appropriate action to prosecute crime.
“When you remove that, you expose him. When appointed to a position, you plan your affairs within that time. Anything interfering with that term will affect you.”
However, the BBI bil seeks to include the Directorate of Public Prosecutions in the Chapter 15 Commissions and Independent institutions.
The BBI proponents, in the memorandum of the Bill, say this would enhance the independence and budgetary autonomy of the office.
BBI also seeks to enhance the qualification for appointment as DPP to be the same as that of a judge of the Court of Appeal.
At the moment, one is required to qualify as judge of the High Court to be DPP.
The bill further seeks to align the removal and resignation of the Director of Public Prosecutions with that of the constitutional commissions and independent offices.
“This is to reflect that the office of Director of Public Prosecutions is proposed to be included as an independent office in Chapter 15 of the Constitution,” the bill reads.
Going forward, constitutional commissions would be required to enhance corporate governance practices in managing their affairs.
In the current law, a DPP is removed from office by a recommendation of a tribunal reporting to the President.
Any person desiring to remove the DPP may present a petition to the Public Service Commission setting out the charges constituting the grounds for the removal.
The PSC then considers the petition and if satisfied there is sufficient ground, sends the same to the president.
The President on receipt and examination of the petition suspends the DPP within 14 days and appoint a tribunal to look into the matter.
The tribunal shall consist of four judges or persons who have held office as judge of a superior court; an advocate of at least 15 years nominated by LSK; and two persons with experience in public affairs.
The team then inquires into the matter and makes recommendations to the President, whom is expected to act in line with the same.
The Constitution provides that commissioners and members of the independent institutions - which the DPP is being elevated to, are removed by petitioning the National Assembly.
MPs then consider the petition, and if satisfied, send the same to the President who then may suspend the member and appoint a tribunal.
A judge of a superior court shall be chairman; with other members being two persons qualified as High Court judges; and an individual who can assess the facts in the grounds of removal.
The president is expected to act on the recommendations of the team appointed to look into the matter.