DPP, DCI feuds bode ill for criminal justice system

Wednesday, June 3rd, 2020 00:00 |
DPP Noordin Haji and Directorate of Criminal Investigations boss George Kinoti at a past event. Photo/PD/File

Opiyo Wandayi 

The perceived rivalry between the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecution (DPP) may affect the fight against corruption and must be sorted out at once.

That the two offices are critical components of the criminal justice system cannot be over-emphasised. 

Whereas these authorities exercise distinct constitutional mandates, they remain interdependent and, therefore, close cooperation between them is essential in safeguarding public interest.

The framers of our laws did not envisage a situation where the two agencies would work at cross-purposes.

It is not in doubt that the current holders of the two offices are men of impeccable integrity who have shown rare commitment to their respective duties. They deserve our full support.

Universally, the purpose of any criminal justice system is to realise the rule of law, which is one of the most fundamental conditions for the sustainable development of societies.

For this purpose, justice has to be given to those who have broken the law while protecting due process of law.

Accordingly, the investigative agencies, such as our own DCI, are empowered to conduct investigations to give justice to suspects, whereas prosecutors are empowered to check the investigation conducted by the police and to mount prosecution, if tenable, following the due process of law.

In order to protect the independence and authority of the DPP, Article 157 of the Constitution provides that the DPP does not require the consent of any person or authority for commencement of criminal proceedings and in exercise of his functions he is not under the direction or control of any person or authority.

The DPP is, nonetheless, under duty to safeguard public interest in the exercise of his mandate.

Under Article 244, the National Police Service is mandated to prevent corruption and promote and practice transparency and accountability.

The DCI is established under section 28 of the National Police Service Act and is under the direction, command and control of the Inspector General of Police Service.

It’s instructive that under Article 157(4), the DPP has power to direct the Inspector-General to investigate any information or allegation of criminal conduct.

Legal practitioners agree that the decision to prosecute or to discontinue a prosecution is weighty since prosecutions that are not well founded in law or fact, may unfairly expose citizens to the anxiety, expense and embarrassment of a trial while the failure to effectively prosecute guilty parties can directly impact public safety.

Wrong decisions invariably tend to undermine the confidence of the public in the justice system.

It’s largely for this reason that the DPP must undertake two critical tests before initiating prosecution; evidential and public interest tests.

Evidential test is the most crucial of the two and the DPP must employ and be satisfied about it, before he gives the green light for prosecution.

If the evidence is not sufficient, the prosecution ought not to be instituted. But even where a case satisfies the evidential test, the DPP must employ a further test, the public interest test.

Where the DPP forms an opinion that there are public interest factors militating against instituting a prosecution, the same ought not to commence.

Common sense dictates that such findings by the DPP need to be shared with the DCI in a spirit of mutual trust.

The coordination between the DCI and the DPP during investigation is thus not only vital, but absolutely mandatory.

Failure in coordination between these two agencies can have far-reaching implications for the society, as well as the liberty of individuals.

Both the DPP and the DCI are mandated to protect public interest in the criminal justice system and to prevent and avoid abuse of the legal process. What is required is mutual goodwill between the two agencies.

The world over, the efficiency of crime investigation and prevention depends, largely, on cooperation between prosecutors and investigators and it is necessary to, at all times, nurture reciprocal understanding between them. 

Clearly, public institutions or agencies, must work in harmony for the common good. —The writer is MP for Ugunja and chairs the Public Accounts Committee in the National Assembly

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