Can the ODPP salvage its reputation from the brink of collapse?

The Office of the Director of Public Prosecutions has not been every Kenyan’s favourite institution. And there is a reason. Its recent conduct, for instance, in the withdrawal of high-profile cases has made Kenyans wonder if it could not have done much better. Today, the consensus is that the Office of the DPP has blatantly failed, refused, or even neglected its constitutional obligations by failing to prosecute cases to their tail end.

Kenyans use evidence from the “ground” to judge whether the public servants are reconciling their talk and walk. Like any keen observer of democracy and the rule of law, I have followed the events surrounding the Office of the DPP these past few months with a lot of concern.

Initially, when I read the news reports on the withdrawal of some cases by the DPP, my first reaction was that the prosecution’s case might have been weak. The other possibility that came to mind was that the accused might have earlier succumbed to what some referred to as a political witch hunt resulting from real or imagined subversive contrivances of the so-called deep state calculated to politically enfeeble the regime’s renegades…Not anymore!

With the advantage of introspection, I join the overwhelming bandwagon who claim that the DPP owes the country a very huge explanation as to why they continue to withdraw charges with astonishing regularity despite having decided to charge a few years ago. When the framers of the Constitution, in their wisdom, included in it a requirement for the appointment of a DPP under Article 156 similar to that of a High Court judge, they likely intended for the holder of that office to have a thorough understanding of the law.

Therefore, good practice dictates that the DPP must have been, before bringing charges, satisfied that the evidence on record was sufficient to sustain a conviction. An attempt to withdraw such a file warrants an explanation; the failure of which erodes public confidence and builds room for more questions. Was the evidence collected in 2020 or 2021 muddled? Was the review of the same evidence not done to the expected legal standards? Rightly or otherwise, these questions paint the actions of the DPP to be seen as an injustice against the Kenyan citizenry and his office as a citadel of impunity.

Condemnation

In Kenya, like most democratic and constitutionally adherent nations in the world, the conduct of criminal prosecutions is always a matter of public interest. In fact, since the Office of the DPP is under a duty to safeguard public interest as it manages the prosecutorial process,  there is a sense in which the DPP is answerable to the very Kenyans on whose behalf he acts.

Therefore, alive to their responsibility to demand accountability, Kenyans have written a series of articles and generated news reports condemning the withdrawal of cases by the Office of the DPP. Such concerns ought not to be taken as merely sensational sentiments calculated to attract attention one way or the other. Instead, they should serve as a clarion call for the Office of the DPP to spend more time on their analysis followed by a well-thought-out plan to defeat the risk of cancer that will otherwise insidiously eat away at the justice system.

Possible resort to private prosecution?

There is yet to be lodged a concrete and practical approach grounded in law challenging what is being termed as an abuse of power on the part of the DPP. In a democratic society such as ours, the legal process is the machinery used in the courts of law to vindicate one’s rights or to enforce their duties. Where the law is manipulated to make it appear unpredictable and unjust, private prosecution by capable citizens serves as a valuable constitutional safeguard against inertia or partiality on the part of the authority, as described by Lord Wilberforce in the classic case of Gouriet v Union of Post Office Workers (1978).

There is no universal prohibition in law, known to me, against a person who wishes to conduct a private prosecution where there is a likelihood of failure of private or public justice because of DPP’s reluctance, without reasonable cause, to pursue prosecution. Article 157 (6) (b) of the Constitution presupposes prosecution not undertaken by the Director of Public Prosecution and impliedly anticipates private prosecution. Furthermore, Section 88 of the Criminal Procedure Code, Cap 75 provides the procedure for leave to prosecute by a Kenyan as a private prosecutor either in person or by an Advocate of the High Court of Kenya.

In the circumstances, any compelling reasons to disallow private prosecution would only be arrived at following the consideration of the set out legal principles well settled in the Kenyan jurisdiction.

Conclusion

To restore public confidence in their ability to handle the prosecution process fairly and objectively, the DPP must overcome the negative perception of chaos and confusion caused by the withdrawal of cases. Without a watertight justification, their decision to withdraw cases is like a band-aid on a bullet wound, it only covers up the problem but doesn’t address the root cause.

Doubtlessly, many Kenyans must have cold feet as they imagine the implications of shirking the responsibility that falls under the purview of this momentous institution. The Office of the DPP should not expect that public-spirited Kenyans would countenance persistent concerns arising from the withdrawal of the cases. Indeed, they will unrelentingly proceed in their diligent pursuit to redeem and relieve the nation from the ostensible pits of impending legal darkness.

Holding public service institutions to account is a noble way of cultivating a culture of the rule of law and entrenching democracy by demanding accountability and transparency. In any case, are those not the values the Office of the DPP boasts so much about?

The author served as a Graduate Assistant at Strathmore Law School and is currently a Trainee Advocate of the High Court of Kenya. He can be reached at dominic.nyaga@strathmore.edu/nyagadominiclaw@gmail.com

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Kenyan Lawyer based in Nairobi, formerly a Graduate Assistant at Strathmore Law School and the Editorial Researcher of this publication.