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INTERNATIONAL CENTER FOR POLICY AND CONFLICT
Ambank House 13th Floor, Utalii Lane off University Way P.O.Box
44564-00100. Nairobi Kenya
Email: [email protected] Website: www.icpcafrica.org
A REPORT ON THE AUDIT AND PERFORMANCE OF THE OFFICE OF DIRECTOR
OF PUBLIC PROSECUTIONS AND THE HOLDER OF THE OFFICE FROM AUGUST 27,
2010 TO AUGUST
27, 2012
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Table of Contents ABBREVIATIONS
...................................................................................................................................................
3
ACKNOWLEDGEMENT
..........................................................................................................................................
4
EXECUTIVE SUMMARY
.........................................................................................................................................
5
1.0. BACKGROUND
..........................................................................................................................................
7
2.0. Appointment of the DPP
...........................................................................................................................
8
2.1. Powers and Functions of the DPP
.........................................................................................................
8
2.2. Reforms in the ODPP
..........................................................................................................................
10
2.3. Funding
..............................................................................................................................................
13
2.4. Staff
....................................................................................................................................................
15
3.0. INVESTIGATIONS AND PROSECUTION OF CASES ARISING FROM THE
2007/2008 POST-ELECTION
VIOLENCE...........................................................................................................................................................
17
4.0. THE NATIONAL PROSECUTION SERVICE BILL, 2012
..................................................................................
20
5.0. LEGAL FRAMEWORK
...............................................................................................................................
22
6.0. OBSERVATIONS AND RECOMMENDATION
..............................................................................................
23
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ABBREVIATIONS AG Attorney General
GJLOS Governance, Justice, Law and Order Sector
ICPC International Center for Policy and Conflict
ODPP Office of the Director of Public Prosecutions
PEV Post Election Violence
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ACKNOWLEDGEMENT
I wish to acknowledge the following people and institutions for
their assistance in the course of
research and preparation of this report: Standard Group Library,
ICPC resource center and Multi-
Agency Task Force chairperson Ms Dorcas Oduor.
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EXECUTIVE SUMMARY
This report traces key developments in Kenyas Office of the
Director of Public Prosecutions (ODPP)
since the office was established as an independent entity
following the promulgation of the
Constitution of Kenya 2010.
While the DPP acquired the current status soon after the
promulgation of the constitution on August
27, 2010 this reports cover in particular, the period between
July 1, 2011 when the current substantive
Director of the Public Prosecutions (DPP) was sworn into the
office, up to August 27, 2012, the second
anniversary of the new constitution, which is slightly more than
a year after the office became
operational.
Attention has been focused on this office given its important
role in the entire criminal justice system,
the rule of law and administration of justice. The Directorate
of Public Prosecutions is one of the
organs under the Governance, Justice, Law and Order Sector
(GJLOS). Reforms in Kenyas prosecutorial
section have been a critical public concern since independence
in 1963.
But of particular importance in this report is the performance
of the DPP in dealing with the backlog of
criminal cases, which arose as an aftermath of the December 2007
general elections. The events,
commonly referred to as the Post-Election Violence (PEV) are a
key determinant in the trend that the
country has taken, including the enactment or a new, robust
constitution as well as major reforms in
the judiciary and the executive.
The DPP as newly constituted carried twin mandates of directing
criminal investigations and directing
criminal prosecutions. They two roles place DPP as a key link
between the executive and the judiciary.
In particular the office stands in between the two arms of the
government in ensuring that justice is
achieved in all the PEV cases and that similar incidents are
prevent from occurring in the future. Its in
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that light that we have undertaken the review and analysis of
some of the reforms in the DPP, as an
institution mandated to stamp out impunity in Kenya.
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1.0. BACKGROUND
Before the enactment of the new constitution in 2010, all the
public prosecutions in Kenya were
conducted under the auspices of the Attorney Generals office.
The prosecutions were in particular
vested on the Department of Public Prosecutions under the AGs
Chambers, headed by a Director of
Public Prosecutions. That arrangement was similar to many others
especially in the commonwealth
countries including the United Kingdom.
However, due to what appeared to be a conflict of interest
within the AGs office and abuse of
prosecutorial powers over the years, constitutional changes were
proposed and effected in this regard.
The position of Director of Public Prosecutions (DPP) was
established by Article 157(1) of the
Constitution of Kenya 2010, as an independent office, making
Kenyas DPP one of the most unique in
the world. Its one of the State described under 260 of the
Constitution.
Under Article 157(2) the DPP is nominated by the President,
approved by the National Assembly and
then appointed by the President. The DPP must have same
qualifications as those required of a judge
of the High Court.
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2.0. Appointment of the DPP
Before the promulgation of the constitution on August 27, 2010,
the office of the DPP was occupied by
Mr Keriako Tobiko having been appointed by the President Mwai
Kibaki in May 2005. The Attorney
General Hon. Amos Wako relinquished the authority of the office
to Mr Tobiko on an acting
arrangement awaiting appointment of the substantive DPP.
On January 28, 2011 President Kibaki announced the appointment
of Kioko Kilukumi (among other
appointments) as the new DPP. This appointment was challenged in
the High Court and in various
other quarters on its constitutionality and the President
reversed it. The position of DPP was advertised
in the public and Tobiko was among the applicants for the
post.
Throughout the interview Mr Tobiko had to defend himself against
allegations of corruption,
incompetence and lack of commitment to reforms. The ODPP
eventually became operational on July 1,
2011 with the appointment of Tobiko as the DPP under the new
constitution.
2.1. Powers and Functions of the DPP
Article 157 of the constitution provides the DPP with powers to
institute criminal investigations and to
conduct criminal prosecutions, which are two key components in
criminal justice system.
The DPP is mandated to:
Exercise prosecutorial powers by: -
- Instituting and undertaking criminal proceedings against any
person. These proceedings may be
instituted before any court other than a court martial
- Taking over and continuing any criminal proceedings instituted
or undertaken by another
person or authority; and
- Discontinuing at any stage before judgment is delivered any
criminal proceedings
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- Direct the Inspector-General of the National Police Service to
investigate any information or
allegation of criminal conduct
- Ensure due regard to the public interest, the interest of the
administration of justice and the
prevention and avoidance of abuse of legal process.
The Inspector-General must comply with such directions, which
makes the ODPP different from many
others. In the UK, the DPP who is the head of the Crown
Prosecution Service (CPS) is appointed by and
answerable to the Attorney General for England and Wales. The
DPP has no authority to direct the
police but merely to advice when and if asked to.1
Other functions of the Kenyan DPP include:
(i) To advise the police on possible prosecutions
(ii) To undertake public prosecution of cases forwarded by all
investigation agencies including the:
Police, Kenya Anti-corruption Commission, Criminal
Investigations Department, Banking Fraud
Investigations Units, and cases taken over from private
prosecutors.
(iii) To represent the State in all criminal cases, criminal
applications and appeals.
(iv) To advise Government Ministries, Departments and State
Corporations on matters pertaining to
the application of criminal law.
(v) To expound and disseminate the National Prosecution Policy
and the Code of Conduct for
Prosecutors.
(vi) To monitor the training, appointment, and gazettement of
Public Prosecutors in Statutory
Corporations.
(vii) To address parliamentary questions relating to
administration of criminal justice.
(viii) To address complaints raised by members of the public,
watchdog bodies and other institutions.
1 Crown Prosecution Service website: www.cps.gov.uk
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(ix) To undertake other administrative roles relating to
efficient and effective administration of
criminal law in the country.2
2.2. Reforms in the ODPP
Reforming the prosecutorial sector is critical under the new
constitution and in the administration of
justice. The DPP has a well organized website as a tool for
reaching the wider society, explaining its
programs, vision and mission and for seeking a feedback on its
performance. It has a Service Charter
setting out its commitments to the public.
In March 2012 the DPP finalised a detailed Strategic Plan for
the period 2012 to 2015 covering its
vision, the mission and core values, its role in the
implementation of Vision 2030, resource mobilization
among other aspirations. The Plan is tailored to transit from
the department under the AGs office to
the new DPP.
The DPP has also set out a comprehensive service charter
committing themselves to:
Undertake speedy, efficient and effective prosecutions of all
criminal cases in court
To advise the police and all government departments
professionally and efficiently
To respond to client inquiries, and complaints in timely
manner
To treat clients concern with confidentiality and give it the
urgency it deserves
In its reform strategy, the DPP has identified both its internal
strength and weaknesses and external
challenges.
Strength
The strength is drawn from the constitution, a degree of
autonomy and independence, clear identity,
existing experience and structure as a department in the AGs
office, established central facilitation
2 ODPP website: www.odpp.go.ke
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and network of offices across the country, Code of Conduct and
Prosecution policy, centrality and
significance in the Criminal Justice System.
Weaknesses
Understaffing, Poor leadership and management skills,
Lack of succession management plans,
Bureaucratic processes and procedures,
Lack of financial, administrative and operational independence,
Inadequate and unequal infrastructure and resources,
Non-competitive terms and conditions of service,
Lack of coaching and mentorship Programme, I
Inadequate budgetary allocation, Weak/in-effective performance
management, system,
Lack of a monitoring and evaluation, framework,
Inadequate professionalization of prosecution services,
Heavy workload,
Weak collaboration and coordination with, stakeholders,
High level of staff attrition,
Lack of staff retention, strategy,
Poor work life balance,
Limited adoption of Information and Communication
Technology,
Lack of criminal law reform mechanism to, continuously update
the various laws that impact prosecution services,
Lack of a comprehensive and networked complaints handling
mechanism,
Poor work ethics and weak organisational culture.
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External Threats The office has identified its external threats
as among others:
Unpredictable political goodwill.
Politicization and ethnicization of the fight against crime.
Bureaucratic systems and procedures.
Better terms and conditions of service by comparative
organizations.
Existence of conditional ties from development partners.
Escalation and complexity of emerging crime.
Rapid advancement in ICT
Competition for limited resources.
Challenges and capacity constraints within other criminal
justice agencies.
Weak inter-agency collaboration and cooperation.
Delay in review and modernization of criminal and penal
laws.
Expanded liberties under the new Constitution
The office lists its priorities under the Plan as:
- Restructuring and reform of DPP in line with the
Constitution.
- Professionalization of prosecution services.
- Witness and victim care and support.
- Decentralization of prosecution service to promote access to
justice
- Enactment of enabling and facilitative legislation for the
DPP.
- Review and revision of key prosecutorial instruments.
- Automation and modernization of processes and procedures.
- Capacity Building and staff development.
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- Rebranding and repositioning of the DPP.
- Promotion of Inter-and Intra- Agency cooperation and
collaboration.
- Promotion of International Cooperation in criminal
matters.
- Promotion of strong organizational culture.
- Improvement in the criminal justice system.
- Performance management system. - Monitoring and
evaluation.
The DPP has embarked on the review of its prosecution manual for
economic and international
crimes.3 Its also reviewing the National Prosecution Policy and
the training manual.
2.3. Funding
Financial constrain due to low budgetary allocations are said to
be the main obstacle to all other
reforms in the ODPP.
According to its 2012-2015 Strategic Plan, the ODPP has
projected financial requirements estimated at
Sh18.89 billion. But the availability of the resources is the
biggest challenge to this new office.
During the 2012/2013 financial year the ODPP was allocated
Sh1.08 billion (about 11.9 million USD)
down from the Sh3.28 billion (about 35.7 million USD) it had
requested Treasury out of the Sh65 billion
allocated to the Governance, Justice, Law and Order Sector
(GJLOS).4
Yet the KSh 3.8 billion was even less that the KSh 4.5 billion
(about 47.5 million USD) that the DPP had
stipulated in its strategic plan for about 16 key
undertaking.
3 The Star newspaper, Kenya, August 27, 2012 page 4. 4
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The DPP was quoted on June 24, 2012 saying the underfunding of
his office could push the country to
the brink of criminal justice crisis. 5 He expressed fears that
the office would not recruit prosecutors in
the 2012-2013 financial years due to the shortage of funds.
The DPP has appeared before the Parliamentary departmental
committee on Justice and Legal Affairs
and pleaded for more budgetary allocation saying the shortfall
would force them to scale down on key
projects and would be unable to deliver on its mandate
properly.
He argues that the new office lacks even the most basic
equipment and facilities to enable it enhance
efficiency and effectiveness in service delivery making it
difficult for the office to carry out its duties
efficiently especially in handling emerging crimes.
He was quoted as having told the committee, The inability to
carry on the above
programmes/projects will very significantly jeopardise the
implementation of the necessary reforms
within the DPP for effective and efficient delivery of
prosecution services,
In the next financial year the DPP will be requesting KSh 5.6
billion (..USD) according to its Strategic
Plan. The figure will then reduce to KSh 4.2 billion (about 47
million USD) in 2014/2015 to 3.6 billion in
2015/2016 financial years.
The DPP hopes to get the bulk of the resources from the
Exchequer but also plans to seek financial
assistance from development partners and Public Private
Partnership initiatives.
The DPP has undertaken to negotiate with donors and other
development partners for additional
funding. It has also pledged to ensure there is accountably and
transparency in the utilization of the
available funds by directing resources to Plan priorities to
ensure efficiency and effectiveness.
5 The Standard newspaper, Kenya
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2.4. Staff One of the biggest problems faced by the DPP and
arising directly from the low budgetary allocations is
shortage of staff. In February 22, 2012 Tobiko was reported in
the Daily Nation saying the backlog of
cases in courts was due to shortage of State Counsels and blamed
it on lack of funding.
Currently the number of authorized staff at the DPP is 453
comprising of 132 legal staff and 321c entral
facilitation staff.6 In order to effectively implement the
Strategic Plan the DPP proposes that the
optimal staff establishment should be 1291 comprising of 927
legal staff and 364 central facilitation
services staff.
In the year 2012/2013 the DPP needed Sh1 billion to enhance
staff capacity, according to the Strategic
Plan. This was the highest allocation of the budgetary vote.
Part of the expansion programmed being undertaken by the DPP is
opening offices in all the 47
counties, which require extra staff.7
The DPP has undertaken to recruit and put in place mechanisms
including training to retain the best
staff in the market to cater for optimal staffing needs.
The new legal dispensation provides for training to ensure that
its offering the best services for the
society.
However the DPP is still grappling with the efforts to establish
a Training Institution for its staff. The
office has vetted 295 police prosecutors to be taken over by the
office and retrained as prosecutors
and their terms of service restructured.
In April 2012, the Public Service Commission advertised for 65
key positions- from that of Deputy DPP
(three posts) to Prosecution Counsel II (16 posts). 6 ODPP
Strategic plan 2012-1015 7 Standard newspaper (ibid) March 6,
2012
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The monthly basic salary scale for the Deputy DPP is set at
between Ksh 120,270 and Ksh 180,660. That
of Prosecutions Counsel II then lowest rank of prosecutors is
Ksh 30,472 to Ksh 40,835.8
The DPP was also quoted saying his office had set up a pool of
external lawyers who would be called in
to handle complex cases on contractual basis.9
The DPP has said that new terms and conditions of service for
employees had been developed and only
funds were hampering the service.
8 Nation newspapers April 26, 2012 9 The Star newspaper (ibid)
page 4
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3.0. INVESTIGATIONS AND PROSECUTION OF CASES ARISING FROM THE
2007/2008 POST-ELECTION VIOLENCE
Dealing with all the backlog of criminal cases pending from the
2007/2008 Post Election Violence is one
of the biggest challenges for the newly constituted DPP. The
heaviest criticism against the DPP is failure
to follow up on the numerous crimes committed soon after the
December 2007 General Election. This
is founded on the argument that the current DPP was in office
since May 2005 under the AGs office.
During the PEV 1,333 people were killed in different parts o the
country and about 350,000 were
displaced.10
On April 20, 2012 the DPP appointed a Multi-Agency Task Force to
review, re-evaluate and re-examine
police files related to the PEV.11 The Task Force was to be
chaired by the Deputy Director of
Prosecutions Dorcas Oduor. The team comprised of officers from
the DPP other departments within
the criminal justice system including the police, Justice
Ministry, the Attorney Generals office and the
Witness Protection Agency.
The Task Force was mandated to examine not less than 6,081
police files relating to events that
occurred at the end of 2007 and at the beginning of 2008. It was
to determine what crimes may have
been committed and recommend action in each of the cases. It was
to undertake the task and prepare
a report for the DPP and the AG within six months.
Part of its mandate was to facilitate prosecution and other
alternative dispute resolution mechanisms
including reconciliation, mediation, arbitration and other
traditional dispute resolution strategies.
Information obtained by the Task Force from the Police Force
indicate that the PEV related cases
reported to the police stations as at March 1, 2012 were 8,869.
Out of these, 6,450 had been
10 Commission of Inquiry into the Pose Election Violence (CIPEV)
of October 2008. Page 346 11 Gazette Notice No. 5417 of 20th April,
2012
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registered and given Charge Register numbers while the other
2,409 had not been given Charge
Register numbers.
By August 17, 2012 the Task Force had reviewed, re-evaluated and
re-examined a total of 4,408 files.12
A detailed data analysis of the PEV related cases reported to
the police by March 2012 and those
forwarded to the Task Force at as August 17, 2012 is
attached.
The Task Force categorised the alleged offences as:
- General Offences including arson, theft of all kind and
malicious damage
- Homicide
- Sexual and Gender Based Violence (SGBV) including rape,
defilement and indecent assault (see
attached statement issued by the Task Force on August 17,
2012).
According to Ms Odour the Task Force was reviewing the remaining
files for purposes of informing,
keeping data and advising the government on PEV related matters
to avoid future atrocities.
Notably there is a major disparity between some of the findings
of the task force and the finding of the
Commission of Inquiry into the Pose Election Violence (CIPEV) of
October 2008. According to the
commission, 1,133 people died as a consequence of the
post-election violence, across the country.13
A total of 3.561 others suffered injuries inflicted in one way
or another.
There were 962 casualties of gunshots out of whom 405 died,
representing 35.7% of all the deaths.
Some 117,216 private properties and 491 government properties
were destroyed.
According to the Deputy DPP, the cases were investigated under
the Penal Code and the Sexual
Offences Act. It was on the evidence available to satisfy the
threshold of those two laws that the
12 Media statement by the Multi-Agency Task Force issues on
August 17, 2012 13 CIPEV Report page 356
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alleged offences were classified and determination made by the
police at to the sustainability of any
prosecutions.
The Task Force, according to the Deputy DPP, is working to
broaden the evidence to march it with the
International Crimes Act which domesticates the Rome Statute, in
a bid to broaden the culpability of
any suspects that may be identified. The Crime Act has a lower
standard of prove and less restriction
than the other two Acts.
The Task Force has also written to other non-state actors
including ICJ, Fida to help them in reviewing
the files and its also seeking public recommendations.
But the work of the Task Force is also hampered by limitation of
resources according the chairperson.
Though members of the Task Force are drawn from other
departments, they are facilitated in terms of
resources by the ODPP, according to the Deputy DPP.
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4.0. THE NATIONAL PROSECUTION SERVICE BILL, 2012 When the
National Prosecution Service Bill, 2012 is enacted into law, the
ODPP shall change status
radically, into the National Prosecution Service (NPS).
This Bill, which is already before the cabinet is intended to
define the entire prosecutorial sub-sector in
line with the constitution. It makes provisions for the
establishment of the National Prosecutions
Service, the independence, organization, management, monitoring,
supervision and control of
prosecutions, functions of the National Prosecutions Service,
functions and powers of the DPP and
other officers in the Service and matters.
The Bill also seeks to establish the National Prosecution
Service Board headed by the DPP, as the body
charged with the recruitment or appointment of staff, promotion,
discipline, determination of terms
and conditions of the service, staff welfare among other
matters.
The Bill if enacted will allow the ODPP to engage with many
other stakeholders in offering
prosecutorial services, which should be exploited. But most
importantly it breaks down the powers of
the ODPP in dispensing its responsibilities, which is critical
for the success of its work.
The Bill seeks to empower the DPP to obtain any information.
Documents or material necessary for
criminal investigations and prosecutions, from any officer in
the government or private sector, making
it a criminal offence for any such officer to willfully fail or
neglect to comply with the requisition by the
DPP.
The Bill also seeks to establish the key sources of funding for
the Service as Parliamentary allocations,
donations and grants among others. It provides that the Service
may establish a National Prosecutions
Service Fund for:
(a) Enhancement of the operational capacity of the Service; (b)
The welfare of the personnel of the Service;
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(c) Any activity approved by the national prosecution service
convention The sources of finance for the Fund shall be as follows:
(a) Subventions from the Government, (b) Grants and donations; (c)
Contributions by the personnel of the Service, and (d) Any other
source as may be approved from time to time by the Director. The
Bill also seeks to open the ODPP for scrutiny by providing that the
DPP shall submit a report before
30th of September 30 every year, to the President and the
Speaker of the National Assembly on the
performance of the Service during the year that ended on the
preceding 30th June
That report shall be laid before the National Assembly by the
Speaker within seven days after the
National Assembly first meets, after the Speaker has received
the report.
The Bill further seeks to compel the National Prosecution
Service to hold an annual convention to
discuss strategic issues involved in Prosecution for the
purposes of improving the standards of service
delivery. The convention shall publish an annual public
report.
The new law will act retrospectively applying to offences,
prosecutions, appeals, revisions and any
other proceedings brought or commenced before its
commencement.
The Service shall soon after commencement gradually take over
cases from
Government Departments or Authorities which had been allowed to
prosecute on behalf of the DPP.
These provisions set out under the Bill, if enacted will make
the ODPP substantially accountable to the
people of Kenya.
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5.0. LEGAL FRAMEWORK With the National Prosecution Service Bill,
2012 yet to get to the floor of Parliament for debate and
enactment the ODPP has no other legal framework to breakdown its
constitutional mandate. The
constitution establishes for it the broad working parameters.
Alongside the constitution is the National
Prosecution Policy drafted in 2007 when the DPP was still a
department in the State Law Office. There
is no legal framework to guide the new office on how to conduct
its day-to-day operations, including
how to hire staff and regulate their work, including expenditure
and other resource mobilisation.
Apparently, this was not made a priority when the new office was
established under the new
constitution.
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Box 44564-00100 Nairobi
6.0. OBSERVATIONS AND RECOMMENDATION
Several sectors in the Criminal Justice system have reformed
expansively while in others key changes
are yet to be realised. The ODPP stands in between the two state
of affairs The office has undergone
tremendous constitutional changes which has give it autonomy not
realised n many jurisdictions.
As the ODPP awaits for the debate on the National Prosecution
Service Bill, 2012, its critical for it to
have a clear legal framework that guide the staff and all other
partners in transacting with the office.
Its important for the office to spell out clearly how it
collects funds from Treasury, employs staff and
spends money. This framework should have been a key priority in
the past two years.
Financial constraints appear to be the key obstacle to the
ongoing reforms in the ODPP. The twin
responsibilities or function of directing investigations and the
subsequent prosecution makes the ODPP
a critical office. Its role starts from the moment the crime is
committed to the point at which the final
determination of the trial is made. Its important that the funds
channeled to this office are
commensurate with its broad responsibilities.
The office should be funded at this incubation point given that
its budget will reduce over the years
depending on how it puts in place key operational
components.
Its also critical that the ODPP broadens its cooperation with
other sectors especially the civil society
groups undertaking criminal justice and governance programmes so
as to gain other forms of support
and assistance essential for its work. This is workable
especially in tackling issues related to sexual
violence, child molestation and drug abuse.
The ODPP has identified its main stakeholders as the Judiciary,
the Ministry of Justice and
Constitutional affairs, the Kenya Anti-Corruption Commission,
the Police and other investigative
agencies, other prosecutorial agencies including immigration,
Labour, prisons, Probation and Aftercare
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International Center for Policy and Conflict
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Tel: +254(020) 2219757/0714 838894 Fax: +254 (020) 2223188
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Website: www.icpcafrica.org
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service and Development partners. Its important that the ODPP
considers other local non-state
agencies including the civil society groups as key stakeholders
in execution of its mandate.
The sourcing of human resource and expertise from other
departments to constitute the Task Force to
review the PEV cases is a good demonstration of how the OPDD can
benefit from such synergy with the
government and other partners.
While sourcing for external legal experts to handle complex
cases, the ODPP must ensure fairness in
terms of remuneration, for both the consultants and the office
full-time employees to avoid lowering
the morale among the staff.
The investigation and prosecution of all the criminal cases
arising from the PEV is the crucial test for
the ODPP. The office must rise to that occasion to ensure that
justice is meted out for both the
perpetrator and the victims, especially for deterrence
purposes.
As indicates earlier, there is a mismatch between the statistics
of criminal cases released by the CIPEV
commonly known as the Waki Commission14 and those recorded by
the police.
The ODPP must have the police investigate all these cases and
align them with the evidence produced
before the Waki Commission. Only when action taken by the ODPP
is commensurate with the report,
will justice be seen to have been done.
While the issue of the PEV is emotive and should be thoroughly
investigated and conclusively dealt
with, there is the likelihood of legal issue arising as to
whether the offences committed during the
2007/2008 period can be tried under the International Crimes
Act, which was not in place then.
The circumstances and the environment under which the crimes
were committed are similar to those
relating to the cases against four Kenyan suspects facing
charges of crimes against humanity at the
14 Kenyan Court of Appeal Judge Hon. Philip Waki chaired the
CIPEV.
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International Criminal Court in he Hague, Netherlands. The
charges in those four cases have been
confirmed at the Pre-trial stage and the cases are set for Trial
starting March 10, 2013. A conviction of
the four suspects would heavily indict the ability of the Kenyan
ODPP to stem out injustice and
impunity.
Unlike other institutions such as the Judiciary, the ODPP has
not clearly identified itself with majority of
the citizens. One explanation for this is that while as the
judiciary is a meting point for all manner of
legal disputes both civil and criminal, the ODPP deals with
criminal investigations and prosecutions in
which only a relatively small section of the population
falls.
The ODPP must thus get more involved in advocacy work on crime
detection and prevention. While as
this is not a mandate under the constitution, the office has
responsibility to ensure the rule of law is
promoted in any and every aspect. One of the extended functions
of the DPP is to address complaints
raised by members of the public, watchdog bodies and other
institutions. This duty should go hand in
hand with offering public education on matters relating to
crimes.
There is need for the DPP, to delink its image from that of the
unreformed police service. Its common
for the public to view the criminal justice system as one unit,
with the consequences that one
institution is associated with poor performance of a completely
different institution in the system. The
DPP must make the head start in ensuring that criminal
investigations are conducted, without having
to appear to be taking the orders from the police service
itself.
The ODPP is still working with the Code of Conduct and Ethic for
Public Prosecutors developed in
2007.15 That Code of Conduct and Ethic applied when the DPP was
still under the State Law office and
before the new constitution was enacted. Its for that reason
that the office has embarked on
reviewing the Code of Conduct alongside other tools of
operation. While the code remains
15 ODPP website (ibid)
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substantially relevant in substance, its important for the ODPP
to review it in line with the aspirations
of the new status and the new constitution.