Noordin Haji on trial: has the director of public prosecution failed the independence test? a scrutiny

Jerameel Kevins Odhiambo Owuor The Public Prosecutor plays a vital role in ensuring due process and the rule of law as well as respect for the rights of all parties involved in the criminal justice system. The prosecutor’s duties are owed primarily to the public as a whole but also to those individuals caught up in the system, whether as suspects or accused persons, witnesses or victims of crime. Public confidence in the prosecutor ultimately depends on the confidence that the rule of law is obeyed. Prosecutorial independence is not an end in itself. Where it exists it is intended to put the prosecutor in a situation where he/she can take the right decision in a case without fear or favour, without being subjected to improper pressure from another source, whether it be the media, politicians, the police , a victim seeking revenge or even a misguided public opinion.

The omphalos point of the study of political institutions is power and its uses. Even supposing we may be of the considered view that the concept of power is being associated exceptionally with politics or to say political science, but it is, in fact, exists in all dimensions of our social relationships.

They are deeply rooted into the depths of society. They are not localized in the relations between the state and its citizens, or on the frontiers between classes. All social actions involve power relationships whether it may be between employer and employee or between husband and wife (in a patriarchal society).

Sociologists are concerned with social interactions among individuals and groups and more specifically, how individuals and groups achieve their ends as against those of others. In their study they take note of power as an important element that influences social behaviour. Sociologists are today concerned to analyse the diverse nature of power and that complexities it creates in human relationships, especially between state and society.

Perhaps in the very simple language, power is the ability to get one’s way even if it is based on bluff. It is the ability to exercise one’s will over others or in other words power is the ability of individuals or groups to make their own interests or concerns count, even when others resist.

It sometimes involves the direct use of force. Force is the actual or threatened use of coercion to impose one’s will on others. Some scholars have defined it that it necessarily involves overcoming another’s will. To summarize, it may be said that power is the ability of groups or individuals to assert themselves sometimes, but not always in opposition to the desires of others.

Max Weber believed that there are three (not one) independent and equally important orders of power. The three are economic, social and political power. Economic power is the basis of all power including political power. It is based upon an objective relationship to the modes of production, a group’s condition in the labour market, and its chances. Economic power refers to the measurement of the ability to control events by the virtue of material advantage.

Social power is based upon informal community opinion, family position, honour, prestige and patterns of consumption and lifestyles. Weber placed special emphasis on the importance of social power, which often takes priority over economic interests. Contemporary sociologists have also given importance to social status so much that they sometimes seem to have underestimated the importance political power.

Political power is based upon the relationships to the legal structure, party affiliation and extensive bureaucracy. Political power is institutionalized in the form of large scale government bureaucracies. One of the persistent ideas has been that they are controlled by elites that is, small, select, privileged groups. Political power concerns the activities of the estate which is not confined to national boundaries. The networks of political power can stretch across countries and across the globe. Political power involves the power to tax and power to distribute resources to the citizens.

The integral place of power in a polity has been further explicated by Professor Githu Muigai in his book ‘Power, Politics and Law.’ He argues that many an array of constitution cognoscente have been having one viewpoint on matters pertaining constitutional law and one fundamental point which they unfortunately miss is the influence and cavilling role of power and politics as the footing of constitutional order and Constitution. He further observes:

For as long as the Constitution is in flux, that the underlying polity that it seeks to regulate is unsettled, then the attempt to manipulate the constitutional document to reflect the political reality of power, mostly by amending it will persist. Constitutional scholars must understand the political forces that shape the constitutional choices (are) made by the power elite of the day.

Having decoded the concept of power it is thus important to contextualize the same in this paper. Am sure that it is not news unto many for it has been happening since the new regime of Ruto/Rigathi took office. The Director of Public Prosecution has been on a spree of withdrawing charges of politically exposed persons. This has led to many being in sixes and sevens as to what exactly is prompting the sudden withdrawal of cases.

Can it be said that the political power in the country is responsible for some of the decisions being made by the Director of Public Prosecution? Is the principle of independence of Director of Public Prosecution under threat? Why is the Director of Public Prosecution withdrawing cases at a suspect timing? Is withdrawal of cases politically motivated? This paper aims to unravel the questions posed above with a view of attempting to answer them exhaustively.

Decoding the roles of a prosecutor

The Prosecutors` roles in the justice system include: instituting criminal proceedings against accused persons; preparing charges in this regard, it should be noted that the selection of the charges to be preferred to the accused person is an integral part of the decision to prosecute; providing legal advice to the Inspector General of the National Police Service and other investigative agencies; conducting criminal trials; reviewing decision to charge; prosecuting bail and other applications; prosecuting judicial review applications, constitutional petitions with regard to criminal matters; negotiating plea agreements with an accused person or his representative; considering alternative criminal prosecution mechanisms such as diversion; assisting the court in the sentencing process; prosecuting appeals and revision in the Appellate Courts; handling public complaints; facilitating  the protection, rights and welfare of witnesses and victims of crime; protection, facilitating compensation and recovery of proceeds of crime[1].

Scholars overtime haven’t arrived at a definitive and widely accepted theory of prosecution. Essentially, a theory that encapsulates the indispensable and multiplex function of prosecutors in a nation’s democratic system. It is on this ground that Bruce Green and Rebecca Roiphe attempted to advance a body of legal scholarship that offers a new archetype that enumerate prosecutors’ role in their historic duty as fiduciaries.

Viewing prosecutors as fiduciaries sheds light on the obligation of a prosecutor to act as custodian of justice anchors mindfulness on the prosecutorial duty of loyalty and that of care not forgetting hierarchizing criminal justice above other public policy related interests in respect to charging and plea bargaining resolutions. They argue, ‘As fiduciaries, prosecutors are required to engage in an explicit deliberative process for making those discretionary decisions.

Exploring prosecutorial independence in Kenya: a legal perspective

  1. The Constitution

Prosecutorial Independence is vouchsafed in the Constitution. Article 157 of the Constitution sheds light on the various elements of prosecutorial independence. These are:

  1. The tenure of the Office of the Director of Public Prosecution.[2]
  2. The Director of Public Prosecution does not need the consent or direction of any other person or body when instituting acriminal proceeding or exercising any of the mandates provided by the Constitution.[3]
  3. The provisions for removal of the Director from office.[4]
  4. The Director of Public Prosecution being an individual nominated and appointed by the President and with the approval of the national assembly.[5]
  5. The qualification for appointment as DPP being the same as that for a judge of the High Court.[6]
  6. Office of Director of Public Prosecution Act, 2013

The ODPP Act is a normative derivative of Article 157 (12) of the Constitution of Kenya. The guiding principles encoded in the aforementioned act are as follows: rules of natural justice, promotion of public confidence in the integrity of the office, the need to discharge functions of the office on behalf of the people, the need to serve the cause of justice, to avoid abuse of the legal process and protect public interest, to protect the sovereignty of the people, to secure the observance of democratic values and principles and to promote constitutionalism.[7]

The ODPP Act goes at length to enumerate the aspect of independence of the ODPP. For appointment of the Director of Public Prosecution, the Act provides for the steps to be taken during the appointment and removal of the director from office. This protects the position of director from arbitrary exercise of power by the government.[8]

One of the key factors exhibiting the independence of the ODPP is through the powers granted to the Director of Public Prosecution. The ODPP Act provides that the director, at his/her discretion may perform all that is necessary to be done for the purpose of performing his/her functions. This provision gives the director legal power to operate freely without any interference in order to perform the functions of the office.[9]

The Act provides that the director in exercising his/her functions and powers under the Constitution and any other written law, is not subject to the direction or control of any authority or person rather is only subject to the Constitution and the law.[10] Section 15 of the Act protects members, staff, employees or agents of the office with regards to matters or actions that they take up in good faith in the execution of the powers, mandate and duties of the office from personal liability through any action, claim or demand.[11]

In a similar vein, Charles Mwaura Kamau in ‘Principles of Constitutional Law’ notes the following on independence of the Director of Public Prosecution.

The Director of Public Prosecutions does not require the consent of any person or authority to commence criminal proceedings. Further, in the exercise of his powers or functions, the Director of Public Prosecution ought not to be under the direction or control of any person or authority.

Prosecution policy is the primary responsibility of the DPP who has to ensure that prosecution decisions are made properly and fairly by a service which has the capability and calibre to undertake these control functions on behalf of the public.

In exercising the powers conferred by the Constitution, the Director of Public Prosecution must 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.

In other words, the DPP’s Office must act independently of government. He must apply well established prosecution principles of evidential sufficiency, public interests and national security.

Almost all investigative and prosecutorial decisions involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the non-partisan sense) must be considered. For example, it is upon the Director of Public Prosecution to decide whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary to establish a case.

In sum, the balancing of various legal practical and political considerations, none of which is absolute is the very essence of prosecutorial discretion. To take this away is to remove the case of prosecutorial function and not merely some presidential control.

Justice Majanja David in Kenya Commercial Bank Limited & 2 Others v Commissioner of Police and Another[12] stated as follows on independence of ODPP:

The Office of Director of Public Prosecution and Inspector General of National police Service are independent and this court would not ordinarily interfere in the running of their offices and exercise of their discretion within the limits provided by the law. But these offices are subject to the Constitution and the Bill of Rights contained therein and in every case, the High Court as the custodian of the Bill of Rights contained therein and in every case, the High Court as the custodian of the Bill of Rights is entitled to intervene where the facts disclose a violation of the rights and fundamental freedoms guaranteed under the Constitution[13].

Mawkishness of the law on withdrawal of cases

Before delving on the law on withdrawal of charges it is incumbent to note the various factors considered by the DPP before instituting a criminal proceeding in court. ODPP’s Decision to Charge policy/Guideline in this case will be helpful.  Decision to Charge Policy states that the DPP’s authorization is mandatory in certain cases of corruption, terrorism, treason, sedition, offences under the Anti-Counterfeit Act and offences involving aircraft. This arrogation or reservation of authority to the DPP to approve prosecution of select crimes irrigates the dynamic of selectivity and the politically contingent approaches that is too often palpable in Kenya’s prosecutorial system.

The Decision to Charge also provides that the prosecution counsel should make an independent and objective analysis of the case determining whether it is appropriate to charge. Objectivity implies that extraneous personal, national or ethnic, religious, age or other consideration not to influence the decision-making itself. The prosecution counsel is required to ensure that the right person is prosecuted, for the right offence, properly applying the law, and ensuring relevant evidence is submitted before the court as well as securing disclosure of obligations. He/she is also to act in the interest of justice, and not solely to secure a conviction. There is also a requirement that he should pay attention to persons protected under the Privileges and Immunities Act, and when in doubt, a prosecutor is to seek guidance from a supervisor. The Decision to Charge also provides that all decisions on whether or not to prosecute to be recorded on a relevant file.

The test on whether or not to charge is that of a reasonable prospect of conviction. The guideline provides two factors to consider in applying this standard when making the decision to charge. In applying the applicable standard, the prosecution counsel has to direct her consideration to two factors: (i) Key evidence;[14] (ii) and the minimum requirements of a file based either on a two-stage test[15] or threshold test.

In cases of common assault, or any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, Section 176 of the Criminal Procedure Code (CPC) allows the court to promote reconciliation, encourage and facilitate the settlement, in an amicable way, of proceedings, on terms of payment of compensation or other terms approved by the court. In accordance with Section 204 of the CPC, a complainant may withdraw the complaint before the court makes a final order in the matter and the court has discretion as to whether to allow or reject the withdrawal when satisfied of existence or otherwise of sufficient grounds for permitting such a withdrawal.  The DPP is obliged to consider “public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process” before accepting to withdraw or terminate a criminal case.

Article 157 (8) of the Constitution (2010) allows Director of Public Prosecutions to discontinue a prosecution with the permission of the court.[16] The Constitution further provides that the DPP can “discontinue at any stage before judgment is delivered any criminal proceedings” instituted by his office. Further, Article 157 (10) dictates 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.[17]

Cases of politically exposed persons recently withdrawn by the Director of Public Prosecution

The Director of Public Prosecution so far has withdrawn a number of cases of politically exposed persons. This section will dwell on the various cases. The cases include that of Deputy President Rigathi Gachagua, Cabinet Secretary Mithika Linturi, Cabinet Secretary Aisha Jumwa, Mary Wambui and Antony Nganga Mwaura.

Following Kenya Kwanza winning the presidential polls, Lead Director of Public Prosecution Kuriah Obadiah stated that former Director of Criminal Investigation George Kinoti made them fabricate charges against Rigathi Gachagua in the KES 7.3 billion case. Kuriah claimed in an explosive four-page affidavit that they were given strict instructions and fixed timelines to rush investigations against Deputy President Rigathi Gachagua despite the lack of satisfactory evidence. According to Kuriah, while the investigations were still ongoing, Kinoti directed Obadiah and his team to make recommendations that would result in the arrest of Rigathi Gachagua.

Between 2013 and 2020, Rigathi Gachagua was accused of defrauding the government Ksh 7.4 billion through government business operations. He faced six counts of corruption conspiracy, fraudulent acquisition of public property, conflict of interest, money laundering and acquiring proceeds of crime. Luckily Rigathi Gachagua case was withdrawn following DPP requesting or the same.

Cabinet Secretary Aisha Jumwa had been charged alongside her bodyguard Geofrey Okuto with the murder of Ngumbao Jola who was shot dead in 2019 in Kilifi County. In November the DPP made the application to withdraw the murder charge against Jumwa, saying she will be a state witness. This move was at par with Danstan Omari sentiments in which he argued that Jumwa should be a state witness because the evidence against her cannot sustain a murder charge.

 For Mithika Linturi, a woman who had accused Agriculture Cabinet Secretary of sexual assault withdrew the criminal case after the two settled the matter out of court before Mithika Linturi was vetted by Parliament. Milimani Chief Magistrate Susan Shitubi allowed the Office of the Director of Public Prosecutions to drop the criminal charges after the prosecutor, Nyakira Kibera, said he was aware of the woman’s intention not to proceed with the trial.

Wambui Mary and her daughter Purity Njoki and trading company Purma Holding Limited were arraigned in court in 2022 over allegations of evading taxes. The three faced eight counts of knowingly and unlawfully omitting taxes due in the income tax returns submitted to the Commissioner for Domestic Taxes for the period between 2014 to 2016. Mary Wambui will know the fate of KES 2.2 billion tax evasion case on January 2023. Mind you President William Ruto appointed her Chairperson of Communication Authority of Kenya. Thus, you don’t need to attend prophetic school to get to know what will happen in January.

Antony Mwaura on November was sworn in to chair the board of directors of Kenya Revenue Authority (KRA), it marked a departure from tradition where holders of the office have tended to be career civil servants. His immediate predecessor, Francis Muthaura, for instance, was a decorated civil servant with nearly 50 years in public service.[18]

Before 2020, the new KRA board chairperson was virtually unknown to many Kenyans. He would shoot to infamy when his companies, Hardi Enterprises and Toddy Civil Engineering Company, were implicated in a City Hall scandal for allegedly receiving irregular payments amounting to Sh102 million. The money was allegedly wired to Hardi Enterprises, which distributed it to five of its Equity Bank accounts in various amounts. The Assets Recovery Authority (ARA) would then seek to have these accounts frozen; together with nine high-end vehicles it argued had been bought using proceeds of corruption.[19]

Justice Mumbi Ngugi granted ARA’s request, even as Mr Mwaura argued that he was a genuine businessman. He said he had accumulated his wealth by carrying out 15 construction projects with the government. In 2021, he began making public appearances as the chair of the elections board of the United Democratic Alliance (UDA) party.

Mwaura is the founder of two companies accused of looting Kes350 million from Nairobi City Hall. The companies are; Hardi Enterprises Limited and Toddy Civil Engineering Company. ARA maintained that the companies made suspicious cash deposits and withdrawals, intra and inter-bank transfers within the same banks and others, making it believe that the monies are proceeds of crime. The Director of Public Prosecution is yet to withdraw his case, anyway, to avoid any surprise am sure that the same will be done soonest courtesy of rubbing shoulders with those in power.

From the DPP actions it is beyond peradventure that the DPP office isn’t independent. Most of these politically exposed individuals were arrested during the regime of former President Uhuru Kenyatta. A narrative has been propounded that they were arrested to settle scores.

In short, those arrested were politically connected and thus they had to be tamed by being arrested and charged in court. If by any chance the DPP looked through the files brought to him before charging them and he saw that there was some loophole, why then did he proceed to charge these folks? Why then withdraw the cases at a time when another regime is in power? This perhaps shows how rotten the dealings are in that Article 157 office. This can be one view of looking at this issue contextually.

In another lense let’s say that these politically exposed persons were indeed suspects and had credible charges to answer to. Why then is ODPP withdrawing their cases? In fact, the timing of withdrawal of the cases is quite suspicious. It definitely shows that there is a mighty arm somewhere controlling the affairs of the ODPP.

From another front, one can say while withdrawing corruption cases looks suspect, the bad working relations between the Director of Public Prosecution, Noordin Haji, and former Director of Criminal Investigation George Kinoti who resigned contributed to the problem. One Kevin Ochol, was quick to note that the act of withdrawing the cases, serves as a message to the public that Ruto’s allies were politically targeted and the new administration is now vindicating them.

Looking through the three viewpoints it shows that independence of the ODPP has been undermined and eroded by other actors. The DPP seems to be playing politics in the criminal justice space seeking to please the regime of the day. Had Raila Odinga captured the presidency in 2022 August the events could have been different today.

The ODPP has been withdrawing prosecution cases of high public interest without proper justification to members of the public. A contravention of the principle of transparency and accountability to the public especially in ensuring regard to the public interest, the interests of the administration of justice and the need for ODPP to prevent and avoid abuse of the legal process.

The ODPP, in as much as it is an independent institution, does not have blanket unilateral power to file and drop cases, as it so wishes but must be guided by the law and the Constitution. The DPP, similar to every other public servant acts on delegated power from the people of Kenya which must be exercised in the public interest and in utmost good faith. This is an overriding interest that must guide the ODPP in every decision including whether to file or drop a case.

In the words of Sheila Masinde, ODPP’s failure to disclose the reasons behind the withdrawal of the graft cases leads to speculations on the ODPP’s commitment to the fight against corruption and to preserve, protect and defend the Constitution.

Commenting on the same issue Dr Isaac Newton stated as follows:

The conduct of the DPP in Kenya will likely destroy the fragile democracy in Kenya. The DPP in a span of less than a month withdrew 8 cases which have been brought to the Kenyan courts by the previous Uhuru administration. These cases were related to the looting of public funds, tax evasion and murder in Kenya.

The main reasons behind the withdrawal of those cases were the relationships that existed between President William Ruto and the individual Kenyans, who were accused of looting billions of Kenyan shillings from public coffers. At the same time, those perceived to have been behind the arrest and hence the prosecution of those looters of public funds during the previous regime, harassed, intimidated and threatened with arrests over unexplained allegations which have not been brought to the attention of the Kenyan public.

Over 3 decades, a number of patriotic Kenyans have suffered a lot in their war against corruption in Kenya while a number of these patriotic Kenyans have been killed for fighting corruption. But right now, it is unfortunate that we are witnessing other Kenyans, who are out trying their best to destroy the efforts to end corruption in Kenya.

Whether the DPP is working on instructions from above or he is working alone, he should not be allowed to mess with Kenya. The Kenyan parliament should debate the sinister motives behind DPP Noordin Haji recent activities then stop him.

I associate fully with the thoughts of Gabriel Dolan who said: ‘The Office of the Director of Public Prosecution has become a laundry for sanitizing those closely connected or recently appointed to the Kenya Kwanza regime. Such an exercise could well be described as yellow washing since most of the beneficiaries are members of United Democratic Alliance Party. How appalling that the office of the Director of Public Prosecution, entrusted with delivering justice for everyone, has now become the office of impunity and Noordin Haji still remains in office, disgraced but untouched and unapologetic’.[20]

Effect of erosion of prosecutorial independence

The erosion of prosecutorial independence has the same effect of what ideally happens when rule of law is thrown to the pigs. Geoffrey Walker in ‘The Rule of Law: Foundation of Constitutional Democracy’ notes that rule of law can be summed up in two points:

  1. That the people including the government should be guided and ruled by the law and obey it and
  2. That the law should be such that people will be able to be guided by it.

Central to the concept of the rule of law is the concept that no one is above the law-it is applied equally and fairly to both the government and citizens. This means that all people, regardless of their status, race, culture, religion or any other attribute, should be ruled equally by just laws. The rule of law is essential in maintaining a free, democratic and fair society. Mind you rule of law is one of the tenets that guide the ODPP in discharging its functions. This concept implies a set of common standards for action, which are defined by law and enforced in practice through procedures and accountability mechanisms for reliability, predictability and administration through law. Rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country.

Accordingly, the rule of law encompasses the following four universal principles: ‘the government and its officials and agents are accountable under the law; the laws are clear, publicised stable and fair, and protect fundamental rights, including the security of persons and property; the process by which laws are enacted, administered and enforced is accessible, efficient and fair; justice is delivered by competent, ethical and independent representatives and neutrals, who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.’

Put differently, the rule of law implies that the creation of laws, their enforcement, and the relationships among legal rules are themselves legally regulated, so that no one including the most highly placed official is above the law. The legal constraints on rulers mean that the government is subject to existing laws as much as its citizens are. Thus, a closely related notion is the idea of equality before the law, which holds that no legal person shall enjoy privileges that are not extended to all and that no person shall be immune from legal sanction. In addition, the application and adjudication of legal rules by various governing officials are to be impartial and consistent across equivalent cases, made blindly without taking into consideration the class, status, or relative power among disputants. In order for those ideas to have any real purchase, moreover, there should be in place some legal apparatus for compelling officials to submit to the law.

If laws are applied selectively to favour a certain class just as it has been noted in this paper the result is pure anarchy. People will be able to do whatever they want and there will be no consequences for their actions for they can be able to ‘talk’ with the officers in the ODPP.  This will lead to a lot of crime and violence, as people will not have to worry about being arrested or going to jail. Protection of human rights will not be there no one will have the audacity to hold anyone accountable for their actions. This definitely will be chaos.

A compromised prosecution is a stumbling block in the criminal justice system. The Constitution gave a new lease of life to the ODPP as compared to the former Constitution. In the previous constitutional dispensation, prosecution was always used by those in power for their gain. Prosecution was used to tame those who were politically incorrect and were anti the ruling regime. The 2010 dispensation sought to correct such apparent errors by guaranteeing independence to the ODPP. By the virtue that as of now it seems that prosecutorial independence is just a mere law in book and not law in action, this will lead to anarchy for folks will commit crime and because they have power or are well connected their cases though instituted will be withdrawn and folks will deem the prosecution as the enemy of the people. Rule of law which is one of the guiding principles in the Constitution will be endangered as well.

Closely tied to this point, is that with the erosion of prosecutorial independence there will be lack of public confidence in the institution. Let no one forget what led to the 2007/8 clashes. It was courtesy of lack of confidence in one institution. Confidence is widely taken to be a crucial measure of the relationship between citizens and public services.[21]

The need for public accountability arises because of the need for a trusted relationship between the public sector and the public. It is about the public sector demonstrating its competence, reliability, and honesty in a way that allows the public to judge the trustworthiness of the public sector in using public money and resources. In a representative democracy, where “the public’s power is entrusted to others” maintaining the public’s trust and confidence is a fundamental responsibility of the public sector.[22]The concept of public trust relates back to the origins of democratic government and its seminal idea that within the public lies the true power and future of a society; therefore, whatever trust citizens place in its officials must be respected.

Trust in government and the state matters for a variety of reasons. Primarily, it increases voluntary compliance towards public policies. Public trust and confidence is built and maintained by the public sector demonstrating competence, reliability and honesty. To illustrate what these three attributes mean in practice: Competence can include the qualities of expertise, performance, capability, efficiency and effectiveness. Reliability can include the qualities of exactness, consistency, compliance, predictability, and dependability. Honesty can include ethical or behavioural qualities of truthfulness, loyalty, faithfulness, service, openness, fairness and sincerity.

Integrity is also an important influencer of public trust and confidence. Integrity is a wide-ranging concept that shares many of the qualities of competence, reliability, and honesty. It is about consistently adhering to strong moral and ethical principles. High levels of integrity are associated with low levels of corruption, which is the abuse of entrusted power for private gain.[23]

Public confidence in public service is a matter of perception. When the DPP embarked on withdrawing cases of those affiliated with the current regime, there was a huge cry from masses that were of the view that the DPP was being controlled by someone in the Executive. As it stands Mr Noordin Haji has lowered the perception of independence of his office. This lack of public confidence and trust, whether in government institutions or the system itself, makes finding and implementing solutions to our communities’ greatest challenges. This will affect the operations of the DPP.

Conclusion

Unquestionably, even a blind man can see that the independence of the Director of Public Prosecution is under threat. This has been exemplified by the recent developments taking place under the Article 157 office. Far be it from the truth that the law isn’t authoritative on securing independence of Director of Public Prosecution Office. The office holder seems to be someone’s workman and bending the law to suit the master. I argued in ‘Why Paul Kihara Should Bow Out’ the various offices in the Constitution are creatures of the law. Thus, these offices should be subservient to the law and not to a fellow creature of the law. I proceeded as follows in the said paper:

To illustrate the relationship between creatures of the law and the law itself consider the law as a potter and all other public/state offices in government as clay. It is the duty of the potter to determine how he shapes the clay. Can clay dictate what the potter should do? A short answer to that is no. The clay will yield to what the potter has in mind for it to make.

In this case the law is the potter, and the Office of Director of Public Prosecution is the clay. Thus, the Office of Director of Public Prosecutions is expected by the potter to promote and uphold the rule of law and defend interest at cost with no case of situational ethics bringing forth its ugly head. For what Noordin Haji has done, the law is seriously weeping.

In sum the phrase mene mene tekel upharsin that appears in the book of Daniel comes to mind. For Noordin Haji the handwriting is on the wall. Moreover, so far, he has been found wanting.

Odhiambo Jerameel Kevins Owuor is a law student at University of Nairobi, Parklands Campus.


[1] National Prosecution Policy

[2] The DPP being the head of prosecution function symbolises the whole department and protects the independence of the department. Therefore, in order to protect the independence of the institution, measures should be put in place to provide tenure of office such as the one provided in the Constitution. This ensures that the dispensation of his/her functions and the exercise of his/her mandates is not affected or even influenced by any other factor other than the principles guiding the performance of the ODPP.

[3] This provision specifically emphasizes on the independence of the prosecution and the rights and powers that come with it. The Constitution enumerates that the mandates of the Director of Public Prosecution is not subject to question or review by any other office or person. He/She has the authority by law. Therefore this provision enables him/her to exercise his/her mandate without the consent of any other office or person.

[4] Following the principle of the rule of law the Director of Public Prosecution being the head of prosecution office needs some form of security from arbitrary exercise of government powers. Legal justification and procedure for removal from office is essential. The absence of such legal securities increases the vulnerability of the prosecution and places them at the mercy of the government. This ensures the prosecution function is not intimidated by threats of loss of employment or positions in the dispensation of their function.

[5] The DPP being the head of prosecutor should have a formal process in place that clearly stipulates the appointment procedure. This assures security of the position to the person holding this office, which in turn affects how this person carries out their mandate. The prosecution should not be in fear of jeopardy especially from the government because this affects the dispensation of their functions and consequently the rule of law is hindered.

[6] The head of the Prosecution should be equipped with the educational and ethical requirements needed for the position. This requirement ensures that the individual taking up the position of DPP is a person who has the expertise required to be part of the department which is essential for proper governance and management of the independent office.

[7] Section 4 of Office of Director of Public Prosecution Act, 2013

[8] Section 8 and 9 of Office of the Director of Public Prosecution Act, 2013

[9] Section 5 (2) (a) of the Office of Director of Public Prosecution Act, 2013

[10] Section 6 of the Office of Director of Public Prosecution Act, 2013

[11] Section 15 of the Office of Director of Public Prosecution Act, 2013

[12] Nairobi Petition No. 218 of 2012

[13] Ibid

[14] This refers to evidence which either alone (being of one witness) or taken together with other evidence, establishes, first, elements for each offence, and second, reveals the person or persons to be charged for the offence/s.

See also, Miyawa Maxwell, GUIDELINES ON THE DIRECTOR OF PUBLIC PROSECUTION’s DECISISON TO CHARGE: CONTINUITY AMID DISCONTINUITY OF POLITICAL RATIONALES, Available at https://www.researchgate.net/publication/346036466_GUIDELINES_ON_THE_DIRECTOR_OF_PUBLIC_PROSECUTION’s_DECISISON_TO_CHARGE_CONTINUITY_AMID_DISCONTINUITY_OF_POLITICAL_RATIONALES Accessed on 12th December 2022

[15] The two-stage test is itself comprised of two stages. The first is the evidential test, while the second is the public interest test. In this instance, this is the first time the DTC captures the constitutional value of protection of public interest as one of the underpinning values governing the exercise of public prosecution.

See also, Miyawa Maxwell, GUIDELINES ON THE DIRECTOR OF PUBLIC PROSECUTION’s DECISISON TO CHARGE: CONTINUITY AMID DISCONTINUITY OF POLITICAL RATIONALES, Available at https://www.researchgate.net/publication/346036466_GUIDELINES_ON_THE_DIRECTOR_OF_PUBLIC_PROSECUTION’s_DECISISON_TO_CHARGE_CONTINUITY_AMID_DISCONTINUITY_OF_POLITICAL_RATIONALES  Accessed on 12th December 2022

[16] Article 157 (8) of the Constitution of Kenya 2010

[17] Bruhan Makong, Kenya: DPP’s Successive Withdrawals of Uhuru-Era Suits Sparks Public Debate (13th October 2022) Available at https://www.capitalfm.co.ke/news/2022/10/dpps-successive-withdrawals-of-uhuru-era-suits-sparks-public-debate/ Accessed on 12th December 2022

[18] James Kahongeh, Anthony Mwaura: Businessman fends off irregular payments scandal to become KRA chair (28th November 2022) Available at https://www.businessdailyafrica.com/bd/economy/anthony-irregular-payments-scandal-to-become-kra-chair-4035464 Accessed on 12th December 2022

[19] Ibid

[20] Gabriel Dolan, Ignore Current Human Rights Violations at your Own Peril

[21] Kevin Morell, What does it mean when we ask the public if they are ‘confident’ in policing? The trust, fairness, presence model of ‘public confidence’ Available at https://journals.sagepub.com/doi/10.1177/1461355719891197 Accessed on 12th December 2022

[22] Bouckaert, G (2012), “Reforming for performance and trust: Some reflections”, The NISPAcee Journal of Public Administration and Policy, Vol V No 1, page 18

[23] Miller, A and Listhaug, O (1990), “Political parties and confidence in government: A comparison of Norway, Sweden and the United States”, British Journal of Political Science, page 358.

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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