By Javas Bigambo
A safe, orderly and progressive society is founded on protecting people’s fundamental rights and freedoms through a dependable criminal justice system. The Constitution of Kenya, 2010 guarantees paramount substantive and procedural rights to persons accused of committing criminal offences.
The State’s primary obligation is to protect the public from criminality through maintaining law and order as enforced by security agencies. A breakdown of law and order, contrary to provisions of various statutes, invites investigation and prosecution in courts of competent jurisdiction. However, the Constitution places upon the State the duty of ensuring access to justice. It emphasizes that the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
One of the rights that form the basis of access to social justice is the right to a fair trial, where the components of prosecution and investigation are critical. Prosecution entails instituting and conducting legal proceedings against an individual in respect of a criminal charge. It plays a paramount role in facilitating fair trial and is essential in upholding the rule of law toward curbing impunity.
However, for a strong prosecution that secures convictions, the investigations must be credible thus underlining the interdependence of these components in enabling a functional criminal justice system.
Kenya’s criminal justice system comprises diverse players with defined duties and obligations in managing offenders. The key players are the National Police Service that domiciles the Directorate of Criminal Investigations (DCI), the National Intelligence Service (NIS), the Office of Director of Public Prosecutions (ODPP), the Ethics and Anti-Corruption Commission (EACC), Judiciary (the court process), probation aftercare services as well as prison services which undertake rehabilitation, reformation and reintegration after completion of serving sentences.
The National Police Service
In the criminal justice system, the police serve as the point of entry, or initial contact that register the complaint in the Occurrence Book and assign the case to an investigating officer. They also arrest the accused persons or suspects in the case under investigation, for the suspects to assist with vital information.
Directorate of Criminal Investigations
The DCI is established under Part V of the National Police Service Act (CAP 84) Laws of Kenya. It reports to the Inspector–General of Police. It is mandated to undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime.
Section 35 of the National Police Service Act mandates it to execute the directions given to the Inspector-General by the Director of Public Prosecutions according to Article 157 (4) of the Constitution.
Its investigations, therefore, are a vital engine for the eventual prosecutorial efficiency and capacity. During an investigation, inquiries are made, documents reviewed and witnesses interviewed. Mostly, examinations are conducted and warrants are executed which permit investigators to search places and seize documents and other materials of attendant relevance that would amount to evidence.
Legally, “evidence” denotes how an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved; and, without prejudice to the foregoing generality, includes statements by accused persons, admissions, and observation by the court in its judicial capacity.
Success in the investigation requires proper supervision by the DCI so that upon collection of sufficient inculpatory evidence, the file can be forwarded to the DPP to decide to charge, and possibly pressing of charges.
The National Intelligence Service
The NIS is codified as the agency mandated to identify threats against Kenya’s security by collecting and analysing intelligence on the said threats and advising the government accordingly through appropriate intelligence reports, for necessary action.
Moreover, it provides material support, advice and assistance to State offices, State departments and public entities on matters relating to the security and integrity of the information that is processed, stored or communicated by electronic or similar means.
By way of the numerous functions performed by NIS, the entity provides a paramount supportive element to the work undertaken by the police or DCI in criminal probes.
The functional relationship between these three investigative institutions can be summarised as NIS collects information and intelligence of strategic interest to the country, while DCI collects criminal intelligence information, investigating crime and penetrating crime circles. The Kenya Police Service and Administration Police Service officers perform the basic law and order functions, including securing scenes of crime from being tampered with.
Ethics and Anti-Corruption Commission
EACC is the lead government agency in the fight against corruption and the promotion of ethical standards, good governance, leadership and integrity in Kenya. Its principal activities are the investigation of corruption and economic crimes, tracing and recovery of corruptly acquired public property, forfeiture of unexplained wealth, corruption prevention, public education and promotion of ethics and integrity.
In its 2021 Annual Report, EACC reported the recovery of stolen assets worth Kshs 6.3 billion in the 2020/21 Financial Year. It had completed investigations and forwarded 104 files on corruption and economic crimes, to the DPP for prosecution. It also carried out 105 random and targeted integrity tests within public institutions including National Police Service (NPS), Kenya Revenue Authority (KRA), Nairobi City County Government, and Higher Education Loans Board (HELB) among others
This could point to efficiency in investigations by the anti-graft body, leading to the successful prosecution of economic crimes in Kenya.
Office of Director of Public Prosecutions
The ODPP is the National Prosecuting Authority in Kenya, established under Article 157 of the Constitution of Kenya. It is mandated to exercise State powers of prosecution by instituting and undertaking criminal proceedings against any person before any court, other than a court-martial.
The Office is not subject to any control, command or direction from any person or authority and operates independently and impartially as stipulated under Article 157 of the Constitution.
Upon conclusion of investigations, the investigative agencies forward the files to the ODPP with recommendations for prosecution. In exercising the powers conferred by the Constitution, the ODPP in determining whether the evidence meets the threshold for prosecution seeks to ensure due regard to the public interest, the interests of the administration of justice and in preventing and avoiding the abuse of the legal process.
The burden of proof
According to Article 50 (2) (a) of the Constitution, an accused person is presumed to be innocent until the contrary is proven. Section 107 (1) of The Evidence Act Cap 80 of the Laws of Kenya provides thus: “Whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.”
It is for this reason that investigators undertake forensic – use of science or technology – inquiries to establish credible evidence, upon which the DPP will rely to ultimately, decide to prosecute.
Logically, and from the perspective of prosecutions that have culminated in convictions, bivariate comparisons indicate that cases with crime scene evidence were significantly more likely to lead to arrest, to be referred to the prosecutor, to be charged, and to result in conviction than cases without solid evidence. As such, suffice to state that successful prosecution leading to a conviction in criminal proceedings is a derivative of exhaustive and competent investigations.
Various cases have been competently investigated and successfully prosecuted in the past, pointing to the fact that it is possible to achieve much through synergy and multi-stakeholder cooperation. The successful prosecution and sentencing of Sirisia MP John Waluke and his business partner Grace Wakhungu for fraudulently acquiring Kshs 313 million from a government agency decades ago is evidence of such success.
The two were jailed to serve for more than 60 years each, with an option of paying fines over Kshs 1 billion each, after they were found culpable of fraudulently obtaining money from the National Cereals and Produce Board (NCPB) for maize which was never supplied.
The perspectives above substantially contribute to a dependable criminal justice system under progressive governance founded on the rule of law. Nonetheless, going by the recent perceived conflict between the immediate former DCI boss George Kinoti, and the DPP Noordin Haji, public trust in the criminal justice system has been strongly tested.
The two institutions handle separate and distinct, yet interdependent constitutional and statutory mandates, whose success increasingly depends on cooperation and support.
The DCI officers are primarily tasked with undertaking all forms of investigations and gathering all material evidence relevant for prosecution. It is instructive to note that The National Prosecution Policy 2015 addresses the above issue and sets out the relationship on pg. 4 as follows:
“Prosecutors rely on the work done by investigators for their work. This does not imply that investigators are in any sense ‘clients’ or ‘subjects’ of the prosecutors. The functions of prosecutors and investigators are complimentary in nature. In this regard, consultations and collaboration are inevitable in efficient investigations and prosecutions. In the discharge of their respective mandates, prosecutors should direct and guide investigations, while investigators should seek and receive advice from prosecutors in respect of the law, charges and evidence. The nature of direction and advice will include; appropriate charges that may be preferred, the sufficiency of the evidence, reliability and admissibility of evidence, the applicable law, disclosure of material, as well as issues relating to appeals and revisions.”
The ODPP relies on the cogent investigations and evidentiary value of materials collected to decide to prosecute. If the ODPP establishes that the investigations are not exhaustive and the material evidence cannot sustain a trial, the file at issue is returned to the DCI with reasons for reverting, and suggestions for areas where further investigations are required. In Kuria & 3 Others Vs Attorney General (2002) 2 KLR 69, the court held that:
“A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for an ulterior motive or improper purpose. Before instituting criminal proceedings there must be in existence of material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting criminal prosecution otherwise the prosecution will be malicious and actionable.”
The decision to prosecute or to discontinue a prosecution is fully dependent on the ODPP, as was held in Peter Ngunjiri Maina Vs Director of Public Prosecutions (2017) eKLR, the Court held that:
“The decision of the DPP is unfettered but it must be accountable. The discretion of the part of the court to interfere with the decision of the DPP is untrammelled but it is not to be exercised whimsically.”
Further, in the case of Communications Commission of Kenya Vs Office of The Director of Public Prosecution & Another (2018) eKLR, the Court of Appeal held that:
“The decision whether or not to institute criminal proceedings is purely discretionary. That discretion must however be exercised by the DPP within the constitutional limits, that is, with 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 ultimate resolve to prosecute or discontinue with the same has been squarely placed upon the ODPP, upon whom accountability also rests.
Relevance of institutional convergence in criminal justice
In his Theory of Justice, John Rawl asserts that justice is the first virtue of social institutions, as truth is of systems of thought. These two institutions are the key gatekeepers of justice, within the criminal justice system. Without collaboration, therefore, natural justice will easily suffer greater loss, true justice not be meted out to criminal offenders, and public confidence in the criminal justice system will be punctured, not augmented.
Only satisfactory and exhaustive investigations that provide sufficient material evidence can aid the prosecution in meeting the evidential test during the trial. In this regard, feuds, fights and clashes between the DCI and ODPP threaten the very essence of justice in criminal cases.
In recent months, the DCI and DPP crossed swords and could not see eye to eye. The initial push-and-pull supremacy battle between the former DCI boss George Kinoti and DPP Noordin Haji played out in the public through media for a long while, and even got litigated and ultimately settled by the court.
It remains clear that the greasing of elbows of relations between agencies in the criminal justice sector, such as the DCI and DPP, is crucial in smoothening multi-agency cooperation in criminal justice. The strained relations between the DCI and the DPP were predicated on power struggles regarding who has the authority to prosecute criminal matters, which battle, if unresolved, would have compromised the course of justice, and the public interest would not have been safeguarded.
Curiously, the DPP Noordin Haji has recently withdrawn various high-profile criminal cases facing tier-one politicians and state officers, on grounds that the cases were politically motivated, and that various accompanying affidavit pieces of evidence were obtained under duress and had been recanted by responsible DCI officers. While the DPP has dropped cases in the past for lack of evidence or technicalities, the timing and rate at which high-profile cases have been collapsing are curious, and worrying and could easily send a wrong message of political interference.
The professional and moral ambiguity in these circumstances dents the image and public trust in the DCI and the ODPP heightening the perception that they are merely tools at the disposal and expediency of executive fiat. If competent investigations are the coefficient of fruitful prosecution, investigations of any kind must not be politically instigated, leading to malicious prosecutions.
Such high-profile cases whose charges have been dropped include the Kshs 7 billion corruption case against Deputy President Rigathi Gachagua, Kshs 400 million charges against former Kenya Power managing director Ben Chumo and 10 others after police failed to conduct further investigations to strengthen areas identified as weak.
The foundational principles of public service enshrined in the Constitution tethered to the statutory provisions of the functions of the ODPP underscore accountability in public service. The Constitution significantly prescribes that,
“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. In exercising the powers, 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.”
Therefore, if objective inquiries into the conduct of the former DCI George Kinoti and DPP Noordin Haji unearth evidence of unethical conduct with ulterior motives, it is proper that due process should be undertaken to hold them to account.
The rivalry between the DCI and DPP is a scourge of the criminal justice system. The definitive wrangles grossly risk undermining the complementary nature of multi-agency cooperation. It, therefore, remains judicious that the cooperation between the agencies, such as the EACC, National Police, DCI and the ODPP appreciate the interplay provided for in law, to safeguard, and perpetuate public interest and the course of justice at all times.
Javas Bigambo is a lawyer and political scientist, serving as the Managing Director at Interthoughts Consulting Ltd