Thousands of criminal cases pending before courts are set to collapse after a Constitutional Court ruled that any criminal proceeding carried out without the consent of the Director of Public Prosecutions is “unconstitutional, illegal, unlawful, null and void”.
The High Court, sitting as a Constitutional Court, has ruled that the Directorate of Criminal Investigations will no longer have powers to craft charge sheets and take people to court, a move that will have wide ramifications on the criminal justice system.
As a result, the DCI’s role has been reduced to collecting evidence, “the basis of which a criminal charge may be laid” while the Director of Public Prosecutions will take over all criminal cases from there.
This emerged in a far-reaching Constitutional case filed before Justice George Odunga in Machakos, which terminated a case in which Geofrey Sang, the acting chief executive officer of National Water Harvesting and Storage Authority, was arrested by DCI officers in April this year and taken to the Mil-imani Law Courts to answer abuse of office charges. The DPP had not approved the charges.
Now, the Constitutional Court says that “any (criminal) proceeding before a Court of law commenced without the prior consent of the Director of Public Prosecutions are not only illegal but unconstitutional too”.
It is, however, not clear whether the ruling by Justice Odunga means that section 89 (4) and (5) of the Criminal Procedure Code (CAP 75) will no longer apply and whether the role of magistrates in signing charge sheets has been removed. The two sections allow police to prepare charges and take people to magistrates, who are supposed to either allow or reject a complaint or formal charge.
While the DPP degazetted all the police officers and Kenya Revenue Authority prosecutors after he came to office, it is not clear whether his office has enough capacity to handle the thousands of criminal cases filed every day, and whether it will create a bottleneck – especially in the rural areas.
How the move is going to complicate criminal proceedings in the country remains to be seen since only the Office of the Director of Public Prosecution can lawfully allow prosecution to court.
“Can you imagine the thousands of cases across the country we take to court every day going to the DPP for consent? We would be taking them in lorries,” a senior detective told the Saturday Nation.
The ruling comes at a time when the Director of Public Prosecutions, Noordin Haji and DCI George Ki-noti have been at war over the handling of various sleaze-related cases.
“When it comes to the exercise of prosecutorial powers, as between the three entities, the Director of the Public Prosecutions has the last word.
“In other words, no public prosecution may be undertaken by or under the authority of either the Inspector General of Police or the Director of Criminal Investigations without the consent of the Director of Public Prosecutions,” Mr Odunga said.
The Judge said that attempts by DCI to charge a person with a criminal offence without the consent of the DPP “amounts to abuse of his powers. It is therefore null and void.”
In what appears to have been a desire by the Court to separate the two institutions, the Constitutional Court said: “This court is under a constitutional mandate to direct the (DCI) back to his lane by directing him to refrain from running amok onto the DPP’s lane. The Director of Criminal Investigations must keep to its lawful lane and must desist from the temptation to overlap even where he believes that those who are constitutionally empowered to take action are dragging their feet. Once he is done with his mandate, he must hand over the button to the next “athlete” and must not continue with the race simply because he believes that the next athlete is “a slow footed runner”.
Whether that will improve the relationship between the two institutions and the smooth flow of criminal cases will be seen in the coming months. But the judge also held that the “DPP is not bound by the actions undertaken by the police in preventing crime or bringing criminals to book.”
By holding a constitutional office, the DPP is supposed to determine cases without the direction of any person, which puts him as a central figure in the administration of criminal justice system.
The Judge said that only the Court could question the DPP’s discretion.
Previously, the DCI would hand over investigations files to the DPP with charge sheets attached for him to peruse. The Court now says that “DPP is not bound to prosecute simply because the investigating agencies have formed an opinion that a prosecution ought to be undertaken”.
“The ultimate decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution and it is not the rule, and hopefully it will never be, that suspected criminal offences must automatically be the subject of prosecution since public interest must, under our Constitution, be considered in deciding whether or not to institute prosecution,” said the Judge.
Justice Odunga said that “only the DPP, and nobody else, enjoys the powers to decide what the charges in each file forwarded to him or her should be… Although the police may advise on the possible charges while forwarding the file to DPP…such opinion is merely advisory and not binding on the DPP.”
He also said that the mere fact that investigators believe that there is a prosecutable case does not necessarily bind the DPP.
In the 106-page ruling, Justice Odunga warned that the court has mandate to halt any investigations that are not independent or which are carried out “for the purpose of achieving some collateral goal divorced from the purpose for which investigatory powers are conferred.”
On the discretion given to the DPP to determine whether to charge a person, Justice Odunga said the Courts will intervene if the decision-maker is “irrational and unreasonable” “fetters the discretion given” or “fails to exercise discretion.”
“In my view to permit the prosecutor to arbitrarily exercise his constitutional mandate based on ulterior criminal motives would amount to the court abetting abuse of discretion and power and criminality,” said the Judge.
Whether the ruling might complicate the relationship between the police and the DPP is to be seen as both officers start to implement the court orders.