The Power and Privilege to Charge

By Dr Fred N. Ojiambo, MBS, SC

There is no greater responsibility in any criminal justice system than the power and privilege to prefer a charge for an alleged criminal offence. The power is generally provided for in law and may be wielded quite quickly in terms of that law. However, it is in exercising the power that shows whether the prosecutor fully appreciates the privilege contained in the public trust that is concurrent with the office.

Before the promulgation of the 2010 Constitution, the Attorney-General (AG), who was also the Director of Public Prosecutions (DPP), had all the state powers of prosecution. However, Article 157(1) established an independent Office of the Director of Public Prosecutions (ODPP). 

Article 157(10), emphasized that the DPP shall not require any person or authorities’ consent to commence criminal proceedings. He or she shall not be under the direction or control of any person or authority while exercising his or her powers or functions.

An integral aspect of the DPP’s prosecutorial powers is the discretion to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed. This power includes the mandate, under Article 157(4) to direct the Inspector – General (IG) of the National Police Service (NPS) to investigate any information or allegation of criminal conduct.

Focus on DPP’s prosecutorial powers

In recent times, this apparent power of the DPP has come under challenge from some quarters. There have been attempts to demonstrate that the Criminal Procedure Code provides an exception to that broad constitutional stipulation: the Director of Criminal Investigations (DCI) to commence criminal proceedings which may thereafter be taken over, and either continued or terminated, by the DPP, as provided for under Articles 157(6) (b) or (c) of the Constitution.

However, the poverty of that argument is self-evident upon an appreciation of the interplay between Articles 2(4), 157(4), (6), and (10) as read with Section 7(1) of Part 2 of Schedule Six of the Constitution. The latter is a transitional provision, stipulating that: 

all law in force immediately before the effective date continued in force and is to be construed with the alterations, adaptations, qualifications, and exceptions necessary to bring it into conformity with the Constitution.

Accordingly, where any provision of the Criminal Procedure Code contradicts, or in any other way inconsistent with a constitutional provision, it must be so construed and brought into compliance to ensure that the supremacy of the Constitution remains sacrosanct.

Recently, the High Court clarified that position. This non-issue was embarrassingly and needlessly becoming a point of contention. Had the courts not resolved the misunderstanding, the criminal justice system was fast being undermined and rendered inefficient and ineffective. Eventually, this would have resulted in crucial decisions falling between two stools.

What is stated above is not a digression from the main thrust of this article. It is a necessary sub-set to the subject of the power to charge. It would be insufficient to discuss the power without clarifying whom that power is vested. However, perhaps of utmost importance is how the power is exercised. For that is how the justice or otherwise of the power must be assessed.

The power to charge

The power to charge entails considerable discretion on the part of the prosecutor. Articles 157(6) legislate for such discretion; in its use of the term ‘may’ in qualifying, the activities open to the DPP in the exercise of state powers of prosecution. Further, in exercising the powers, the DPP is required by Article 157(11) to 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.

The interplay of those provisions depicts that prosecutorial discretion is an essential element of a well-functioning criminal justice system. More fundamentally, it shows that it is vital for prosecutors and the public to understand the rationale behind the prosecutorial discretion. They must be satisfied that the structures are transparent and accountable enough to safeguard the public interest in the administration of criminal justice and that discretion is not abused or exercised inconsistently.

The prosecutor is obligated to establish decision-making processes, which form the ethical framework of the prosecutor’s superstructure.

For this reason, the codifying of prosecutorial ethics, practice, and procedure in instituting a criminal prosecution by the Office of the Director of Public Prosecution is a step in the right direction, in light of the emphasis exerted upon fair trial and fair hearing in Articles 25 and 50 of the Constitution.

Upholding the bill of rights

The Bill of Rights is an integral part of Kenya’s democratic state. It is the framework for social, economic, and cultural policies. It recognizes and protects human rights and fundamental freedoms to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings. At the core of the Bill of Rights is the right to a fair trial.

A fair trial in a criminal justice system must begin with the prosecution. It is not surprising, therefore, that the framers of the new Constitution in 2010, armed with the painful history of the nation’s past, provided a special place for the question of a fair trial.

In Article 25, the right to a fair trial is one of the few rights and fundamental freedoms from which no derogation is permitted. Moreover, Article 50 expands the concept of fair hearing to an extent never before set out under Kenyan law. Indeed, the new Constitution has been praised for being one of the most progressive internationally.

The jurisprudence of this nation has moved quickly away from days when secrecy and ambushes to the accused characterized prosecutions. No documents or witness statements were made available to the accused. They had to do their best in cross-examining the witnesses whose testimony they would hear for the first time during the trial. Indeed, the decision to charge process was unclear and never canvassed in trials. There is no doubt that considerable injustice may have been caused.

However, in the unfolding scenario, where the Constitution and the statute law call for more disclosure by the prosecution, adopting an accountable approach to prosecution can only be a good step in the right direction.

Changing prosecutorial dynamics

The truth, however, is that the morphing role of the prosecutor in today’s criminal justice environment makes it difficult for the law enforcers. Negotiating the multifaceted dynamics is not an easy task, particularly for young or new prosecutors. They can be mired in a miasma of confusion and fall into error, which may lead to grave injustice such as failing to prosecute the guilty or to press for the conviction of an innocent person.

One of the areas that require clarity is the distinction between a prosecutor and the investigator. It is not the prosecutor’s principal objective to secure a conviction, albeit that he or she must adduce before courts the most reliable evidence in support of the case for the prosecution. The prosecutor’s highest motive must be to achieve a just resolution to the matter set for adjudication.

In the circumstances, the prosecutor must be satisfied that compelling evidence, sufficient for the prosecution, exists. Moreover, where such evidence is available, the prosecutor is duty-bound to consider the public interest quotient; namely, whether it is in the public interest to mount the prosecution. Indeed, it is not outside the prosecutor’s remit to consider any alternative to prosecution, if that forms the just resolution of the matter at hand.

The prosecutor’s role as an officer of the court, requiring them to present their case fairly and impartially, as well as their duty to the defence counsel: to treat them professionally, and finally to make the difficult decision to charge, calls for rigorous training of a modern prosecutor. Clear guidelines are a necessary adjunct to ensure that they exercise their discretion to charge consistently and fairly.

It is in this almost convoluted scenario where the prosecutor has to operate that the privilege placed upon him or her must be understood. A privilege is an awesome responsibility, which must be discharged with special care. The courageous move to continue building the capacity of prosecutors and doing so in a visible and accountable fashion is indeed commendable. It can only be a precursor to a much vibrant and satisfactory future for prosecutions, and ultimately to the cause of justice.

Dr. Ojiambo is an advocate of the High Court of Kenya who specializes in civil litigation.

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