- In the official prosecution policy the primary test of whether to prosecute is “would an impartial tribunal convict on the basis of the evidence available?”
- Sometimes there may be reasons for withdrawing a prosecution because evidence is revealed to be weak, for example.
Image: FILE
It is remarkable that both the new Prime Minister of the United Kingdom and a possible president of the United States have backgrounds as prosecutors of crime. Here are people whose careers involved being strictly neutral taking up political positions – and in leadership roles.
The Office of the Director of Public Prosecutions was one of the innovations in our constitution that people hoped would make a significant difference to the justice system, and even help in curbing corruption. Strict detachment from political loyalties is a fundamental requirement of the job.
An article on September 15 in the Sunday Nation underlined the concern that many Kenyans feel about the failure of many prosecutions—especially of prominent people, and how they seem so frequently to be withdrawn even before they have really got going. And mostly by the DPP, the office with almost a monopoly of bringing criminal cases to court.
Some beneficiaries of what seem like unexpected release have been close to government. Corruption cases are a particular subject of suspicion. If people have been corrupt in one context why would they hesitate in another?
A bit of history
The DPP was not mentioned in earlier constitutions. In fact, 1963 and 1969 constitutions said that the Attorney General had power to take criminal proceedings against anyone, to take over criminal proceedings started by anyone else and to discontinue any criminal proceedings taken by himself or anyone else at any stage before judgment.
Historically, prosecutions were not only brought by the DPP or AG or the police. According to Wikipedia, “In the 18th century, prosecution was private for almost all criminal offences against the person, usually by the victim.” And then prosecutions came to be thought of more as a state matter. Most prosecutions were then brought by the police.
There was a DPP for much of the country’s independent history, but that person was basically doing this on behalf of the AG.
Kenyans were troubled by the fact that AGs tended to be very close to government. Original provisions making it hard to sack them soon disappeared. And even though their prosecution powers were in theory free from direction by anyone else, it was felt that AGs, or DPPs, were too prone to do government’s will. A particular issue was the tendency to use the AG’s constitutional power to stop prosecutions (“nolle prosequi”) if government wanted it.
The Constitution of Kenya Review Commission wanted to change this. They proposed that the DPP become an independent constitutional office to exercise “state powers” of prosecution but Parliament could also give that power to any other agency. To stop past abuses, the DPP could take over any prosecution brought by anyone else but could not withdraw any prosecution without court permission.
The DPP would have to “have regard to the public interest and the interest of the administration of justice”.
The DPP was no longer under the AG, so was intended to be independent of government.
What does the 2010 Constitution say?
Much of this remained and is still in the constitution. However, there is significant difference. The CKRC wanted the DPP nominated by the Judicial Service Commission - like a judge - and approved by a House of Parliament (the president would have had no choice).
The Bomas draft (that began with the CKRC draft but made many changes) wanted the DPP to be nominated by the PSC, but the CoE changed this to the current system: nominated and appointed by the president – though with the approval of the National Assembly. Why they made this change is not clear.
Interestingly, the CKRC originally wanted the head of the police (Inspector General of Police) to be appointed just by the president with the approval of one House of Parliament. The CoE wanted to add one small safeguard – it must be with the approval of the Cabinet. Of course this is if anything even less of a safeguard than the approval of Parliament. Parliament might occasionally have a bit of a mind of its own, the Cabinet virtually never. Anyway that notorious Parliamentary Select Committee removed it in Naivasha.
For a brief period after 2010 a new Police Act actually had a process of choosing the nominee for IGP before the president got involved. But a change to the law soon removed this and the courts felt unable to object because the new law simply reflected the constitution.
The reality
So both the chief investigator and the prosecutor in our criminal justice system owe their positions to the president. In theory they are supposed to be able to resist influence while in office, being in office only for a fixed and not very long term, and it being hard to remove. But in reality that appointment background leaves a lasting impression. And when the prime criterion for major appointments seems to be more to do with rewards and connections and less to do with competence, or integrity, it is hardly surprising that appointees’ loyalties lean in the wrong direction.
In the case of the first post-constitution DPP, he had already been DPP under the old system. And, to make matters worse, towards the end of that DPP’s term, then President Uhuru Kenyatta offered him a job as Cabinet Secretary. What better way to make future DPPs feel that if they did what government wanted they would benefit from the president?
To make the difference needed to achieve the transformation the new constitution was intended to achieve, it is essential to bring its true radical nature home to people in power, and who want to be in power in the future.
Sometimes it seems too possible for business as usual (pre-constitution) to continue. Of course, people who found the old system worked well for them will want to go on in the same old way. In some ways the constitution makes this too easy.
Various organisations supposedly given independence over certain matters simply fail to act independently (Parliament is another example).
Even the provision about not stopping prosecutions without court approval does not easily make an impact. The courts may sometimes decline to agree. But they can’t make the ODPP put true efforts into prosecuting.
Various suggestions have been made to change the situation. Should the EACC be given some power to take the cases right to court? (It often seem wrong to allow someone to be both investigator and prosecutor).
Can there be some way - if the DPP refuses to prosecute – for someone else to have access to the available evidence, and assess its strength?
The DPP exercises the state prosecution power. There is no reason to suppose the centuries old tradition of private prosecutions was intended to be done away with by the constitution.
Prosecution policy
In the official prosecution policy (as in other countries) the primary test of whether to prosecute is “would an impartial tribunal convict on the basis of the evidence available?” Sometimes there may be reasons for withdrawing a prosecution because evidence is revealed to be weak, for example. But how often should that happen for experienced prosecutors? Suspicion inevitably arises that either the case was badly prepared in the first place (or for other motives?) or something inappropriate is happening later.
The second test of whether to prosecute is the public interest. As the constitution says “the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process” Several commentators, and courts, have pointed out, this statement must have meaning. But is it that here, as too often, the “public interest” turns out to be the government interest or even governors’ (meaning President, ruling class etc) interests?