A Commentary on the Policy on Prosecutorial Discretion Guidelines Respecting the Decision to Charge a Suspect

By H. Chacha Odera & Paul Kamara

Generally, policies are principles and guidelines formulated for the achievement of a defined long-term goal. They aim at facilitating objective decision-making to achieve rational and uniform outcomes.

Policies enable decision-makers to make decisions that are influenced by merit-based factors necessary to ensure uniformity, consistency, and accountability. And to succinctly achieve these objectives, a policy should spell out its purpose, scope and application, guiding principles, effective date and the roles of target stakeholder.

A proper policy, particularly in the legal sector, should uphold integrity and quality professionalism, independence and impartiality, accountability and transparency. Other attributes are equality and non-discrimination, adoption of international best practice and nurturing public confidence.

In most cases, the elements mentioned above are as the guiding principles of the policy. These ensure that the targeted stakeholders make merit-based uniform decisions. Effective policies include sanctions to address unexplained or unjustified deviation or non-compliance. These should range from internal disciplinary measures and where necessary, open up the defaulter to aggressive penalties not limited to prosecution.

Launch of the ODPP guidelines on the decision to charge

On 29th July 2020, the Office of the Director of Public Prosecutions (ODPP) launched the Guidelines on The Decision To Charge 2019, marking a crucial milestone in the criminal justice system in Kenya.

Due to the absence of a codified policy guideline, the 1000 prosecutors spread across the Republic of Kenya approached their prosecutorial functions differently leading to poor decision-making. And exacerbated by non-compliance to instructions and disjointed exercising of prosecutorial powers, the rights of accused persons, victims, witnesses, and the public, in general, may have been negatively impacted.

To address this problem, these guidelines on prosecutorial functions are necessary and timely. They will have the immediate effect of streamlining the prosecutorial mandate under Article 157 of the Constitution by guiding the prosecutors to ensure uniform administration of justice. They stipulate the standards expected and factors to consider when executing prosecutorial discretion.

As is always the case, guidelines are generally not exhaustive. They must always be read and applied alongside applicable laws, policies, regulations, and other existing guidelines. In the case of prosecutors, some of the relevant laws alongside the policy and guidelines are section 54, 55 and 56 of the Office of Director of Public Prosecutors Act 2013, Public officers Ethics Act, Leadership and Integrity Act 2012, and Official Secret Act.

Others are the Law Society Rules of Professional Conduct, International Association of Prosecutors Standard of Professional Responsibility, and Statement of Essential Duties and Rights of Prosecutors.

Primary aim of the policy

Recognizing that prosecutorial powers are exercised in trust and benefit of the people, the policy outlines a framework for applying those powers and in ensuring equity in serving justice.

It aims at enhancing the growth of a more robust, streamlined, and professional prosecutorial service. Also, upholding the independence, accountability, integrity, transparency, impartiality, and professionalism in justice administration. It adopts international best practice, improving the quality of prosecutorial decisions and building public confidence in the ODPP.


The policy further enumerates the guiding principles. The first principle stipulates professional conduct as having high standards of integrity, respect of Bill of Rights, serving, and protecting the interest of justice without fear. Others are consistency, independence, impartiality, and professional confidentiality.

The second principle focuses on avoiding conflict of interest through disclosure, acting for or advising family members and relatives, being called as a witness, and reporting to supervisors. It also directs that if under special instruction, prosecutors ought to sign the Conflict of Interest Declaration Form.

The third stipulates professional conduct in court where one is to act per practice directions issued by Chief Justice. The fourth elaborates on a proper record-keeping emphasizing comprehensive documentation of the court attendance. 

Scope of application

The guidelines provide for the conduct of prosecutors, roles, duties, and powers, investigations and deciding to charge, independence in deciding to charge, plea-bargaining, diversion, appeals and revisionHowever, concerning scope and application, the guideline does not create rights or duties to third parties like defence counsel as they have their conduct regulated by their Bar Code of Conduct.

The nexus between policy and the right to fair hearing and rights of accused person

The decision to charge is the most crucial role of a prosecutor considering the intrusive nature of criminal proceedings on the rights of an accused person.

To effectively balance the exercise of prosecutorial roles and uphold the Bill of Rights on the other, prosecutors ought to invoke the guiding principles enumerated in the guidelines. This would help them avoid a breach of constitutional rights, particularly, the right to a fair hearing and the rights of a suspect or of that of an accused person.

Fair hearing entails the conduct of proceedings in a manner amenable to the due process of law and equality. In criminal justice, it refers to the accused person’s right to be notified of the charge against them and the opportunity to meet the charge. A fair hearing is mirrored through equality of parties in the proceeding, respect to dignity, adequate opportunity to present a case, entitlement to legal representation, determination of matter without undue delay, and opportunity to appeal.

The rights of an accused person

These rights are stipulated under Article 50 of the Constitution of Kenya and entail the right to a fair trial, which includes, inter alia: Informed of charge with sufficient detail to answer, the presumption of innocence, legal representation, the information given in an understandable language, and adequate time and facilities to prepare a defence.

Also, the rights to appeal, assistance during proceedings, adduce and challenge evidence, and informed in advance of evidence against the accused person.

In upholding the rights of an accused person and the right to a fair trial, the policy has set in place various mechanisms, inter alia:

  • The prosecutor must ensure the minimum requirements of the file are met for sufficiency of detail and facilities for proceedings. The file should include, initial reports, investigation diary, correspondences, a summary of facts, witness statements, investigating officer’s statements, expert report, exhibits and any inventory, proposed charge, confirmation of accused’s aged and any evidence of compensation. 
  • In deciding on the sufficiency of the evidence to prosecute, prosecutors are required to consider the element of the offence by consulting the applicable substantive and procedural law.  
  • The prosecutor should ensure evidence tendered against the accused person is relevant and admissible as per the Evidence Act. Illegally obtained evidence (confessions) and hearsay intrude on the accused person’s right to a fair hearing. 
  • The prosecutor must scrutinize the reliability and accuracy of the evidence. Identification parades must adhere to set principles under the Police Service Standing Orders.  
  • The prosecutor should consider whether the suspect was/is mentally incapacitated or under a disability. Here, the prosecutor is required to be proactive by pointing out this issue even before the court inquires about the mental status of the suspect.  
  • The prosecution should consider applying alternative/lesser charge where the accused suggests an offer to plead guilty. 
  • In charging a suspect, the prosecutor must be satisfied that they committed a legislated offence based on the assessment of the evidence available. Further, the material relied upon should be admissible, reliable, credible and relevant. While at it, the prosecution must be satisfied that the continuing investigations will disclose further evidence within a reasonable time to allow the suspect to prepare a defence. 
  • The charges preferred must reflect the seriousness and extent of the offence committed. Further, they ought to be framed as per section 137 of the Criminal Procedure Code. 
  • Consideration and opposition to bail by the prosecutor should be objectively guided by Articles 49 and Bail and Bond Policy Guidelinesto avoid infringing on the Bill of Rights. Opposition to bail must be upon compelling reasons. 
  • Delay of proceeding through adjournment should trigger a review. 
  • To ensure that the accused properly defends the case, the prosecutor should continuously disclose evidence and exhibits, beginning at pre-trial and subsist throughout the trial. 
  • To avoid favouritism and to infringe on the rights of victims, the DPP will only discontinue upon seeking court’s permission and on clear and compelling justifications. Discontinuance done before the close of prosecution case may be reinstated while those done after the end of prosecution case shall result in acquittal hence a bar to future proceedings.  
  • Where the finding manifests impropriety or illegality, the prosecutor should be proactive in seeking a revision.

In practice, prosecutors have been exercising prosecutorial discretion on behalf of the DPP when considering various aspects of a prosecution. While well-meaning, and due to lack of a standard document, the exercise of discretion has borne different results and impact on the criminal justice system process. Therefore, the launch of the Guidelines on The Decision to Charge is welcome and will go a long way in ensuring a uniform application of discretion and conduct in prosecution.

Mr. Chacha Odera and Paul Kamara are advocates of the High Court of Kenya.

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