The doctrine of prosecutorial discretion in Kenya

The role and status of a prosecutor vary greatly depending on the jurisdiction, subject matter or legal system.[1] In the civil law system, for example, the discretionary prosecutorial power is limited, restricted, and subjected to judicial review as opposed to the common law systems where prosecutorial discretion is only restricted by the operation of law.[2] Prosecutors, like most lawyers, make decisions on behalf of their clients. The distinction perhaps is that in criminal proceedings, the prosecutor’s clients always go beyond the victims and include the State.[3] This, therefore, explains the central role of prosecutors in the criminal justice system. Prosecutors are essential agents of the administration of justice hence they protect society and safeguard rights.[4]

Prosecutors are therefore often seen to make decisions on the offenses to prosecute and   recommend the punishment  they seek  for  the offenses hence prosecutorial discretion.[5]

As long as a prosecutor has determined that an accused person has committed an offense defined by statute, the decision of whether to prosecute and what charge to file rests with the prosecutor.[6] One scholarly definition available for the term prosecutorial discretion is the prosecutor’s power to choose based on the options available.[7] The legal philosopher Ronald Dorkinmes distinguishes between the two scenarios on the use of the term discretion in legal discourse. The use of discretion in the weaker sense requires a prior rule or experience and the use of discretion in a strong sense where there are no standards from which it can be said the decision was wrong.[8]

The scholar concludes by stating that whether in the strong/weak sense discretionary power is given for a purpose and operates within certain limitations.[9] Discretion is also described as the authority conferred by law to act in a certain situation guided by one’s judgment and conscience.[10]  The Black’s Law dictionary also contends that discretion is the authority given to a public officer by the dictates of law to act in accordance with their judgment or conscience without interference by others.[11] The Supreme Court of Canada further in the case of R v. Nixon breaks down the concept of prosecutorial discretion into three elements; the decision whether to bring on a charge as laid by the police, the decision to enter a stay of proceedings, and the decision to accept a plea to a lesser charge.[12]

Prosecutorial discretion is also defined as the prosecutor’s  power to choose whether or not to  bring criminal charges, the charges to  bring forth and the evidence that would justify the said charges.[13]

There are scholars who argue that the need for prosecutorial  discretion is to allow  the  prosecutor to be flexible and adapt depending on the circumstances.[14]

Prosecutors, therefore, have to be genuine, non-selective and impartial in their duties. A prosecutor should not be guided by political considerations. They are not supposed to be partisan[15]. The guiding factor when applying prosecutorial discretion is the facts of the case and the corresponding available evidence. Discretion should therefore be exercised within applicable perimeters so to encourage conformity.[16] The law through the legislatures in many jurisdictions have attempted to assert the authority and guide the work of the prosecutor in three ways: firstly, a lot of criminal codes prescribe how to prosecute offenses, secondly; the legislature in some offenses has delegated the power to the prosecutor to define the nature and conduct of the offense and severity of the punishment and thirdly, legislatures today come up with sentencing guidelines that stipulate the maximum as well as the minimum penalty.

Prosecutorial discretion, however, has also been said to have a dark side. Case sensitive discretion, for example, is a threat to justice. Prosecutorial discretion can potentially be used to target people hence the dilemma in this paper.[17] The other issue is the distinction between the individualization of prosecutorial decisions as a result of discretion and arbitrary state action.[18] Prosecutors are however said to be the fulcrum of the criminal justice system. They are the public authority, acting on behalf of the society and public interest, who ensure the application of law and administer sanctions for breaches while taking into account individuals and societal rights.[19] For the prosecutorial discretionary powers, prosecutors bear responsibility for the outcome of cases in most jurisdictions hence the need to understand this balance.[20]

Other than the prosecutors, a lot of government agencies have a discretion on when to initiate enforcement proceedings. This is often seen as an administrative function that the courts are reluctant to interfere with.[21] There is a presumption that  government  and agencies will always act for the good of the people but where this discretionary power is abused,  the  burden of proof lies on the person alleging arbitrariness and the court may intervene.[22] Selective enforcement however does not mean discriminatory  enforcement. In proving discriminatory enforcement, there exists a heavy burden on the complainant to state that the State agency has treated two similar situations differently and that the State agency has acted in bad faith.[23] There is also selective enforcement of human rights by government agencies in certain circumstances. These have hugely been documented as humanitarian crises. A lot of literature condenses these to situations of armed conflicts.[24]

In Kenya, the practical example of selective enforcement is often observed with the prosecutors and the police. The police, as well as the prosecutors, have a lot of discretion as they are the first contact with the cases and their discretion determines the destination of the case[25]. The role of selective enforcement at this level should therefore be guided by a cost-benefit analysis, the best interest of society and goodwill.[26]

1.  The origins of prosecutorial discretion

There is a lack of clear literature that points to the origins and development of the concept of prosecutorial discretion. The area of study is however linked to the different legal systems.[27]  The different legal systems on the other hand are developed from ancient legal traditions. In the Ancient Athens traditions, for example, the system was unique as they did not have punitive crimes, these citizens solved criminal issues on their own terms.[28]  The laws were later divided into common procedures and private law. Judges chaired the trials but they only had the role to advise and perhaps persuade.[29]

In Ancient Rome, they developed codes that acted like modern-day legislation. There was an investigative judge who had the mandate to look at the matter then prefer charges. There were no prosecutors rather the judges played the role of the prosecutor.[30]

This therefore means that prosecutorial discretion can  be said to have developed in the American system.[31] There is  common consensus that  the traditions of prosecutorial  discretion  developed from common law.[32] For a long time in the English traditions, the State depended on private  prosecutors for the administration of justice. The aggrieved citizens who were neither lawyers nor prosecutors were the ones prosecuting the matter before an adjudicator.[33] This system had gaps as some cases did not have witnesses to prosecute. It also lacked the public interest element. There were interventions through a statute that led to the introduction of the Justices of Peace that played the role of public prosecutors.[34]

The Justices of Peace as the name suggests had the mandate to keep the peace. They had the power to arrest offenders and keep offenders in custody pending trial.  They also had the power to give bail.[35] The role of the Justices of Peace was however transformed by law into the Office of the Attorney General however prosecution still largely remained in the hands of individuals. The existence of the Attorney General brought a shift in prosecution but gave the Crown power to control prosecution hence the concept of nolle prosequi. The Attorney General also had the power to take over private prosecutions in the name of the State.[36] The British system was adopted in most of her colonies including Kenya. In countries like America however, there was a slight departure from this system. America established a public federal prosecutor, a lawyer, and a politician with the power to prosecute.[37] The American system created a prosecutor with full discretionary powers tracing from the historical elements of the powers of the Attorney General. The prosecutor had the powers broken down from the Attorney and the concept of nolle prosequi.[38]

The French adopted a prosecutorial system with checks and balances. There are three actors thus; the judicial police, examining magistrate and the prosecutor. The examining  magistrate  plays the  role of supervision  for the two other offices.[39] The prosecutor plays the role of administering the appropriate charges and directs the work to the judicial  police.

The Magistrate has the power to investigate a matter and afterwards direct the  prosecutor appropriately.[40]

The French civil law jurisdiction also prominently allows for private prosecutions.[41] This allows the victims of  crime to constitute criminal proceedings and seek  criminal sanctions. As much as the alternative method seems to take some discretionary power from the prosecutors, it essentially ignores the moral authority of the State to combat crime and looks more like a failure of the prosecutor.[42]

The Chinese have adopted the ‘all-powerful prosecutor’ like in the common law jurisdiction. The prosecutor is the only one with the power to initiate prosecution and has the power to take it to a court or not as they see fit.[43] A lot of countries in Africa have adopted positions depending on their colonial masters.

1.  Origins of prosecutorial discretion in Kenya

Kenya as one of the colonies of Britain adapted its criminal justice system be it with modifications after independence in 1963.[44] Independence came with a new Constitution which was the supreme law of the land.[45] The Attorney General was therefore given the mandate of the principal legal adviser of the government and in that capacity, he supervised the prosecution of criminal matters under the Office of the Director of Public Prosecution then under the Office of the Attorney General.[46] The Attorney General therefore had super discretion as he had the mandate to institute criminal proceedings as he deemed fit; he also had the power to discontinue or take over any case as he deemed fit.[47] The Attorney-general had the powers to further instruct a police prosecutor to withdraw a case in the subordinate courts before the accused person is called to give his defense. The accused person could be withdrawn and then re-arrested.[48]  

The Attorney General further had the power to enter a nolle prosequi. This means that the Attorney General had the power to discontinue any case at any level before a verdict is delivered and does so in writing or orally.[49] A nolle prosequi however does not bar an accused person from subsequent criminal charges and proceedings.[50]

Lord Dilhorne, while explaining the vast discretionary powers of the Attorney General as applied to nolle prosequi stated that the Attorney general has no obligation to explain why he is entering a nolle prosequi in a criminal case.[51] The Attorney General, therefore, had unfettered powers with regard to prosecution both in England and Kenya. The other duty of the Attorney General was to appoint prosecutors.[52] The prosecutors were either appointed by Gazette Notice or by the hand of the Attorney General. The powers to appoint public prosecutors allowed the Attorney General to delegate this duty hence the police prosecutors in the magistrate’s courts.  The other role of the Attorney General was to allow for private prosecution where an individual felt harm and wanted to prosecute a matter, however, the Attorney General had the prerogative to take over the matter when he deemed fit.[53] The Attorney General further had a hand on the other discretionary prosecutorial decisions such as bail and plea bargain as directed by statute. This however changed with the promulgation of the Constitution of Kenya, 2010. The Constitution of Kenya, 2010 effectively shifted the function of criminal prosecution from the Office of the Attorney General to the Office of the Director of Public Prosecutor.[54] The independent ODPP, therefore, inherited the vast discretionary powers of the Attorney General.

1.  Theoretical framework: The philosophy underpinning prosecutorial discretion

Philosophical underpinning and jurisprudence often bring out the reasoning behind the establishment of a system or structure in law. Prosecutorial discretion is the power given to the prosecutor so that they are flexible enough to protect society and the public interest.[55]  This idea resonates with the origins of law and jurisprudence. Kantian Legal Theory predominantly states that crimes in international law are found in any form that leads to violation of freedoms in interpersonal relations.[56] If interpersonal law is violated then the philosophy posits that the general world law is invalidated. The punishment meted out for the crimes offsets the violations of freedoms of interpersonal relations and negation of the general world’s law.[57] The role of the prosecutor and prosecutorial discretion facilitates this theory.

Retributive justice theory stipulates that the criminal justice system operates to protect society. It primarily restricts the freedoms of a criminal from interfering with the freedoms of the other people.[58] Retributive justice, therefore, restores the balance in society as it creates a deterrence effect for those who may want to commit crimes. Punishment through the restorative theory is about equality and that is the role of a prosecutor.[59] Natural justice on the other hand is about fair hearing. The theory states that all relevant facts must be considered in making a determination.[60]

Austin’s command theory is another study that informs the reasoning behind prosecutorial discretion.  John Austin states that law is a command from a sovereign that is always backed by threats and sanctions. Law, therefore, is the genus of command. This is a statement or a wish to those whom the command has power over. Those given the command have a duty to obey failure to which there is the administration of sanctions.[61] The role and the function as well as the idea of prosecutorial discretion align with the idea of threats and sanctions. As the prosecutor carries the threat and in case of breach pushes for the sanctions. The other relevant theory is the utilitarian theory. It is a moral theory based on the notion of maximum pleasure. The original concept of utilitarianism came from Jeremy Bentham. He stated that man is at the mercy of his pleasures and therefore in society, people seek the greatest good for the greatest number of people.[62]  The prosecutor protects society. He works for the interest of the greatest good for the greatest number of people.

These theories lay a firm foundation for the reason and function of a prosecutor and therefore to a large extent prosecutorial discretion. These theories aid in understanding the structure and the foundation of the laws and principles on the subject of prosecutorial discretion and selective enforcement.

1.  Principles underpinning prosecutorial discretion

There are a number of principles that guide the role of a prosecutor and therefore prosecutorial discretion. Some of these principles have been titrated into statute while others are applied by custom. The principle of legality for instance is applicable where there are laws and regulations defining prosecutorial discretion while the opportunity principle mainly focuses on the time limit. In other words, the opportunity to prosecute.

In Germany for example, the prosecutor has the discretion to drop a case depending on the weight of the evidence and the effect to the community. This may be done without recourse to any authority. The principle of prosecutorial independence refers to both an individual and the institution. As  discussed above,  it gives a prosecutor power to make decisions rationally and impartially on the basis of the evidence and law.[63] The main rationale for prosecutorial independence is so that they are not influenced in the manner they perform their duties.

A prosecutor’s job is therefore not to secure convictions. He is often described as a lawyer who does not lose. Sir Horace Awory stated that it is not a prosecutor’s job to secure convictions at all costs. They only work to balance justice.[64]  The prosecutor, like any lawyer analyses the facts and places the facts before the court. He presents the facts in a fair, dispassionate and ethical manner.[65] A prosecutor should not do anything that would lead to a conviction of an innocent person. The level of detachment does not mean that a prosecutor does not present his case, to the contrary, a prosecutor should always put his best foot forward. A prosecutor is an agent of the court, he is an agent of justice.[66] He is also an agent of the State as the sovereign.[67] He, therefore, needs to ensure as an overriding obligation that justice is done. A criminal trial, therefore, is not just a mere game where one party seeks to capitalize on the mistakes of the other party just like the judge is not merely an umpire.[68]

Prosecutors are therefore bound by the obligation to present a good case to the court and therefore help the court in coming up with a just and fair conclusion.

The other principle is ethics. Prosecutors are bound by ethics- the morals and ethics of the legal profession. They are therefore bound to represent the State and their clients and keep to the strict rules of professional ethics.

2.0. The legal framework in prosecutorial discretion and selective enforcement

Before the promulgation of the current constitution in 2010, prosecutorial powers were part of the Attorney General’s Office.[69] The Attorney General had a Director of Public Prosecutions (DPP) who took over the work of prosecution but was answerable to the AG.[70]

The Constitution of Kenya, 2010 however changed the whole matrix of prosecution. Prosecutions shifted to the Office of the Director of Public Prosecution which is independent and is answerable to the people of Kenya who are sovereign.[71] The Office of the Public Prosecution is also governed by a statute legislated through parliament.[72]

The other part of the legal framework is international law and guidelines that give guidelines on a number of issues related to prosecution and the subject of prosecutorial discretion. Policies and guidelines developed by the office of the DPP also form part of the legal framework. There is other punitive legislation that guides prosecution and prosecutorial discretion and selective enforcement such as the Criminal Procedure Code.[73]

2.1. Constitutional basis of prosecutorial discretion and selective enforcement

The Constitution of Kenya, 2010 is always described as a transformative document.  This is because it is a complete shift from the independence (Amended) document. It is a people centered document with the people of Kenya as the sovereign.[74] The sovereign power is therefore donated to the different arms of government, state officers and institutions.[75] Unlike the previous document, the supreme law is also built on the strength of independent institutions so as to decentralize power. The office of the Director of Public Prosecution is one such independent office.[76] The ODPP exercises State power to prosecute.[77] The prosecutor may therefore initiate and undertake any criminal proceedings before any person in any court other than a court-martial.[78] The Director of Public Prosecutor has the power to take over or continue criminal proceedings in any court other than court-martial began by way of private prosecution with the permission of the authority of the person.[79]

The Director of Public Prosecution has the discretionary power to discontinue any criminal case under the Director of Public Prosecutor at any stage before the delivery of judgment.[80] This power is a discretionary  authority similar to  the power of the Attorney General to enter a nolle prosequi – the major difference being that this is to be done  subject to the authority  of the court.[81] The Director of Public Prosecutions is not subject to direction  by anyone. He does not require  the consent of any person or authority in the exercise of his powers or authority.[82] He has the freedom and the flexibility to do the work as required by the law. The Constitution is however very elaborate on the guidelines on prosecutorial discretionary power. The Director of Public Prosecutions is guided by public interest, the interest of the administration of justice and the need to avoid abuse of the court process or the justice system.[83]  The Director of Public Prosecutions as a public servant is also governed by the ethics and integrity in exercising discretionary power.[84] The Director of Public Prosecution has the power to direct the investigative agencies to investigate matters and lay the evidence before him.[85]

2.2. Office of the Director of Public Prosecutions Act

This is an Act of parliament that gives effect to Articles 157 and 158  of the Constitution of Kenya, 2010.[86] It primarily operationalizes the Office of the Director of Public Prosecution. The Act highlights the composition of the office to include; the Director of Public Prosecution, Deputy Director appointed according to the Act; Secretary of Prosecution services; prosecution counsels; technical staff, and any other relevant staff as need be.[87]  This section is important as the Director delegates his powers including discretionary power to the counsels and senior officers.[88] In order to fulfilling his mandate, the Act is elaborate on a number of principles the prosecutor needs to portray.

These principles apply to the doctrine of prosecutorial discretion and they include; the diversity of the people of Kenya; impartiality and gender equality; the rules of natural justice, promotion of public confidence and integrity in the Office, service on behalf of the people of Kenya; the need to serve the cause of justice; promote public interest and prevent abuse of legal process, promote the sovereignty of the people of Kenya; promote the observance of democratic principles and constitutionalism.[89]

The Act further outlines and elaborates on the powers and functions of the Director of Public Prosecution as stated in the Constitution including; formulating and keeping under review public prosecution policy, promoting appropriate standards of practice by public prosecutors; implementing an effective prosecution mechanism so as to maintain the rule of law and administration of justice. The Director of Public Prosecution also  advises  the State on  matters of administration of justice.[90] The Public Prosecutor is independent and does not need the consent of any office or institution in order to prosecute a matter. He is however subject to the constitution and may be required by parliament or the president to submit reports.[91] The law is however silent on the kind of reports that parliament or the president may seek from the Director. The Act further elaborates on prosecutorial discretion as it discusses the kind of control that the public prosecutor has with regard to criminal prosecutions.[92]

2.3.  The Criminal Procedure Code

The Criminal Procedure Code is a procedural law that breaks down the steps of a criminal proceeding from arrest to the conviction of the arrested person.[93]  The Criminal Procedure Code transfers the power to enter a nolle prosequi from the Attorney General in the previous regime to the ODPP.[94] The public prosecutor may enter a nolle before a judgment is delivered and can be done orally or in writing. This section adds on the element of suspension of a sentence or discharge of bail when a nolle is entered.[95] The Act further elaborates on nolle entered when the accused person is not in court. The Registrar or the clerk of the court writes to the keeper of the prison where the accused person is detained.[96] The Act gives the public prosecutor full discretion with regards to nolle as he doesn’t have to give the court reasons for entering a nolle.

The Act gives the public prosecutor powers to delegate his powers to his officers such as the Deputy Public Prosecutor, the Assistant Deputy of Public Prosecution or the prosecution counsel. When the power is delegated in writing, it will be applied as though the  public prosecutor  is applying himself.[97]. The public prosecutor has power to appear and plead any case before any court or may delegate the power to an advocate with  the power of the public prosecutor.[98] A magistrate  trying  a case may allow  a person with authority  from the  public prosecutor to prosecute a case.[99]  A public prosecutor  has the powers to withdraw a case before  the subordinate courts. This is done with the consent of the Director of Public Prosecution and the  court.[100]

The Director of Public Prosecution has the power to appoint public prosecutors. This can be done by way of Gazette Notice. The Director of Public prosecution may also appoint an advocate of the High Court as a prosecutor by way of writing.[101] This is also a discretionary power of the prosecutor that by law he cannot be directed. The other relevant Acts of parliament include; the Judicature Act, the Magistrates Courts Act, Sexual Offences Act, and the Evidence Act.

2.4. Application of international law in prosecutorial discretion

International law and principles are a significant part of the sources of law in Kenya within the prism of the Constitution of Kenya, 2010. The General Rules of International Law shall form part of the laws in Kenya[102] The Constitution goes further to recognize international treaties and covenants signed by Kenya as part of the laws of Kenya.[103] Prosecutors are discussed as the fulcrum of the criminal justice system yet they have the least recognition in international instruments. Scholars contend that none of the human rights instruments mention prosecutors yet the prosecutors are essential in the implementation of some of these principles including the protection of human rights in itself.[104] The idea of international standards concerning prosecutors was however conceptualized in 1980 by the sixth United Nations Congress on the prevention of crime and the treatment of offenders.[105] Congress further advocated for the proper and effective training of judges and prosecutors in light of the administration of justice.[106]

The seventh congress in 1985 underlined the importance of impartiality in instituting prosecutions and the need to avoid discrimination in the selection and appointment  of prosecutors.[107]  The seventh  congress further  pushed for  draft guidelines on issues of  prosecutorial  discretion and immunity.[108] The Havana guidelines were therefore adopted in the eighth congress[109]. The guidelines had the purpose of promoting the effectiveness, impartiality, and fairness of prosecutors in criminal proceedings. National governments of member States, therefore have the duty to make national legislation and take administrative measures to promote these principles. The International Association of Prosecutors (IAP) was created in 1995 under the United Nations Offices in Vienna. This was the first internationally acknowledged attempt to try and define the role of the prosecutor which was brought about by the growth of crimes such as drug trafficking corruption and money laundering.

The IAP guidelines were primarily concerned with the relationship between the prosecutors and the other arms of Government. This led to the creation of the Standards of Professional Responsibility and Statement of Essential Rights and Duties of Prosecutors. These standards have been exposed by the United Nations and developed through United Nations Convention against Corruption.

The challenge that comes with the guidelines is that they do not align with the substantive domestic provisions. They also do not touch on the jurisdiction and the developing jurisprudence of the international ad-hoc committees.[110]

2.5. Policy and administrative directives

As stated in the Constitution and the Act, the Office of the Director of Public Prosecutions has the mandate to develop policy on different aspects of prosecution including prosecutorial discretion and its elements. The Office of the Director of Public Prosecution has developed a policy on diversion.[111] The Office  has further  developed  guidelines on plea bargain.[112]

3.0. Areas of application of the doctrine of prosecutorial discretion

The concept of prosecutorial discretion and selective enforcement is applicable in the cases that a prosecutor decides to take up, the cases he decides to discontinue and those that he may drop. [113]This is however not the end and the beginning of prosecutorial discretion, a number of areas of law apply the concept of prosecutorial discretion. This area of the study discusses prosecutorial discretion in the plea bargain, nolle prosequi; private prosecutions and the discretionary power to appoint prosecutors.

3.1. Plea bargain

Plea bargaining is widely regarded as a new phenomenon in common law jurisdictions. It is however very common in the United States where it is seen as a component of the administration of justice as it comes in very handy where there are scarce prosecutorial resources.[114] A plea bargain may be defined as the procedure where an accused person pleads guilty to end a trial process subject to the prosecutor’s approval, the victims of the crime and the adjudicator’s interventions.[115] The process of a plea bargain is essentially negotiations. The accused person pleads guilty and confesses his guilt in court in exchange for a lighter punishment that would ordinarily be given for such an offense. This usually occurs before judgment is rendered and it is primarily between the prosecutor and the accused person. This justice model aims to end the dispute consensually inter-party. The practice and procedures of a plea bargain are often soft law and not reduced into a statute.[116] This implies that the prosecutor has discretion and power to reduce the charges of the accused person, advocate for lesser and alternative sentences before the court and negotiations as to the facts to be revealed at trial. Plea bargain essentially means that the accused person is giving away their trial rights for a lenient sentence.[117]  Plea bargain may also involve the accused person who is regarded as a secondary perpetrator turning to be the prosecution witness against the primary perpetrator.[118] This is usually at the discretion of  the prosecutor and it is usually seen as doing  the  greatest  good  for the greatest  number of people.[119]

Plea bargaining has been encouraged since it is often considered to be the first step towards rehabilitation; where an accused person confesses and asked for plea bargain.[120] The whole idea of plea bargaining is developed around the idea of speedy trials and saving on scarce resources although there are concerns as to the negotiation power of the accused person. Prosecutors primarily enjoy the discretionary power and it is always for the benefit of the State.[121] The other concern is with regards to offenses and the statute book; does it, therefore, mean that there are offenses that the State cares about and others that they do not? A bigger sin so to speak and lastly the power of the prosecutor in the plea bargain process, can it be abused? And what about the trial rights. This discourse is therefore a conflict between the State’s agenda of crime control and punitive interests balanced with an individual right to due process and the victim’s right to see justice done. In Kenya, the phenomenon of a plea bargain is recognized by statute and the Constitution.[122]

The Criminal Procedure Code and the Plea Bargain Rules along with the guidelines give a policy framework for plea bargains.[123]  The Act states that the prosecutor and an accused person may enter into an agreement with regards to reduction of charge based on a lesser offense and withdrawal of charge or a stay of other charges.[124] The accused person may be forced to pay restitution. This will be included in the agreement.[125]  Where the prosecution is done privately, the Director of Public Prosecution has to give consent.[126] The Director of Public Prosecution enters plea agreements on behalf of the Republic and in the case of a subordinate court, it is the representative of the DPP.[127] The Act further deals with the initiation of a plea agreement. This is done by the prosecutor or the accused person and their representatives.  The court is, therefore, to be notified but shall not take part in the negotiations. [128]The Act also gives guidelines to the prosecutor on what to consider before entering into a plea deal thus; consultation with the police and the investigative agencies; looking at the circumstances of the accused person and the community and affording the victims a chance to read and make a presentation on the plea agreement.[129] The law is however silent on the value of those presentations. The form of the agreement is important. The Act states that the plea agreement must be in writing and should be reviewed and accepted by the accused person. It is to be done and explained in a language that the accused understands and be signed by the complainant in the event of compensation purposes.[130]

The Court through the Act records the plea but the accused person is to be advised on the rights of accused persons with regards to plea taking.[131] Where the court accepts a plea agreement; it shall explain the factual issues to the parties. The facts of the plea agreement are not to be used in subsequent cases or any other criminal proceedings.[132] The Court has a duty to ensure that the accused person is competent and is of sound mind at the time of entering into a plea bargain agreement.[133] Plea Agreement does not apply to sexual offenses; genocide and crimes of war; and crimes against humanity. [134]The accused person may withdraw a plea before sentencing for any reason.[135] The court may also reject a plea agreement based on reasons of community and public interest.[136]  The ODPP has in turn developed a policy on the guidelines of plea bargain. The policy espouses the general principles, liaison with the agencies and regulators; termination of the plea negotiation process; termination of agreements and monitoring and evaluation[137].

3.2. Nolle prosequi

The other area that which the prosecutor exercises discretion is with the power to enter a nolle prosequi. It is the authority of the public prosecutor to reject to prosecute or to withdraw the prosecution.[138] While the reason for this power is not clear; the distinction between the old and new regimes is that the prosecutor has to get the permission of the court in order to discontinue or not prosecute a case.[139]

3.3.  Private prosecution

The Director of Public has to allow for private prosecutions. Any person who institutes  private  prosecution is to notify the ODPP within 30 days.[140] This is because the Director of Public Prosecution has the powers to take over or discontinue any criminal matter.[141]  The idea of  private prosecution is often linked to the notion that the State may not have adequate resources or the matter is of such a nature that has personal causes.[142]  As much as private prosecutions  are increasingly gaining  prominence, it all points down to the failure of the prosecutor as he is the custodian of the law and the State.

3.4. Power to appoint a prosecutor

The Director of Public Prosecution has the power to appoint a prosecutor.[143] This is a discretionary power that is meant to help the ODPP function optimally. The Director as provided for in the law may appoint by a letter or through a gazette notice.[144] This power is not subject to any other body or authority save for the fact that the Director is expected to act in good faith.

4.0. Challenges and solutions to prosecutorial discretion

As this paper discusses, the concept of prosecutorial discretion is important as it helps in upholding the idea of prosecutorial independence. This doctrine however faces a number of challenges. These challenges are either real or perceived. Some of these emanate from the law and others from society. The world is constantly evolving and crime and the environment of crime challenges is constantly changing hence there are new and emerging challenges to the job and the concept of prosecutorial discretion.

4.1. Politics and political will 

The Office of the Director of Public Prosecution is a public service office. This office is not political hence the independence of the office. In other words; the independence of the office and the discretion is supposed to protect the director from political influences. It is however naïve to imagine that politics does not come to play. The Director of Public Prosecutions is a lawyer who must have the pedigree to play politics as even the vetting process and ascension into office of the Director is purely a political process.[145]Politicians and the politics of the day will always want to control the prosecutor in one way or another. While applying prosecutorial discretion therefore the prosecutor should make sure that they are guided by law and ethics and not politics. The solution to the interference of politics goes beyond adherence to the strict letter and spirit of the law to the conduct and character of those holding the Office. Political will on the other hand affects a number of things such as resources that the prosecutor gets; cooperation with the other investigative agencies and a conducive environment for the prosecutor to work. The solution is for the politician to play politics. He must be in a position to negotiate for what he requires to prosecute effectively.

4.2. Case load and available resources

In many cases, public prosecutors are often overloaded with matters. They are meant to handle a high number of cases in comparison to their human resource capacity and other resources available at their disposal. This reality always forces prosecutors to make decisions that they would otherwise not make such as plea bargains and deterrence.[146] In Kenya, the Office of the Director of Public Prosecutions is a creation of the Constitution of Kenya, 2010. This came with the desire to take prosecution from the police inspectors to professional lawyers.  This, therefore, means that the issue of lack of capacity in terms of the number of lawyers to handle cases is a reality. There are more cases than the available counsels or prosecutors can handle as they serve the entire country. This, therefore, necessitates or forces the prosecutors to prioritize the cases they may want to take up. The Office of the Director of Public Prosecutions should slowly but steadily work on their capacity by employing more lawyers, training them, and providing the resources needed. It is important to note that crime evolves and the investigators, as well as the prosecutors, must evolve to keep it at bay.[147] This calls for enhanced capacity and requires sufficient resources and training.

4.3. Criminal justice chain

As much as the prosecutor is the fulcrum of the criminal justice system, it is unfair to look at the prosecutor in isolation as is often the case. The prosecutor depends on the police to investigate and make arrests. The prosecutor depends on the investigators to do their jobs diligently and come up with a good cases and the judiciary as well as the prisons services to complete the process. When there is a break in this chain, it is often very difficult to get convictions or deliver justice. These different parts must work together in cooperation for justice to be served. Cooperation can only be fostered by a culture of institutionalising the rule of law and constitutionalism.  

4.4. Performance of the prosecutor  

As indicated earlier; the prosecutor is a lawyer who does not lose cases.[148] If he is not judged by the prosecution, how can one gauge the work done by the prosecutor? This brings the challenge as prosecutors are often judged by the convictions they make. A lot of them, therefore, are in the habit of looking at their jobs through the lenses of successful convictions only. This has the potential of making the prosecutor use his discretion and any means available to them to secure a conviction. This is solved by taking pressure off the prosecutor and encouraging professionalism in their work. As much as convictions are important; the public as well as all the stakeholders need to understand the operations of the office.

4.5. Corruption      

Corruption and allegation of corruption have been a part of the legal system since the inception of Kenya. The idea of institutionalization and independence of the office of the prosecutor is to try and check and balance power. There are however some elements of corruption that a prosecutor in Kenya must be aware of. This comes into play in the sense of abuse of office and bribery. The solution for this is strict adherence to the laws and the codes of conduct including the Leadership and Integrity Act and the Public Officers Ethics Act.  

5.0. Conclusion and recommendations

Prosecutorial discretion and selective enforcement are delicate subjects. While it is an important doctrine; there is a need to look at its potential for abuse and the pitfalls of this important doctrine. This paper defines the concept, analyses the law and regulatory framework; analyses the applicability and the challenges and solutions.

5.1. Conclusion

Prosecutorial discretion and selective enforcement are concepts that have grown with the law. They have changed with modifications with the domestication of the law. There are however emerging challenges and changes that come with pitfalls. 

5.2. Recommendations

This paper analyses prosecutorial discretion and selective enforcement in three ways; through the social lenses; as an administrative tool and as a legal conundrum. The law establishes these concepts and Kenya has attempted to seal the pitfalls; however, there is a need to evolve. Administratively, the Office of the Director of Public Prosecutions also has a role to play through development of guidelines and subsidiary legislation and on the social front, the society is expected to understand and support the work done by prosecutors.

Kizito Ajuong’ Ouma is a lawyer, an Advocate of the High Court of Kenya of six (6) years standing and a person living with physical disability (using a wheelchair). He holds a Bachelor of Laws Degree (LLB) Second Class Upper Division from the Kenyatta University School of Law (KUSOL) and a post graduate Diploma in legal practice from the Kenya School of Law. Kizito has a matchless writing and drafting ability that he has developed while working as a legal and legislative drafter. The author has also developed interest in human rights, policy and legal reform and good governance areas.

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1. Report of the Special Rapporteur on the independence of judges and Lawyers [A/HRC/20/19]
2. The Status and Role of Prosecutors. A United Nations Office on Drugs and Crime and International Association of Prosecutors Guide. United Nations Criminal Handbook Series, 2014.
3. Kirk J Nahra, ‘The Role of Victims in Criminal Investigations and Prosecution. (1999), 33 The Prosecutor,28,30.
4. The United States Supreme Court in Wayte V. United States, 470 U.S.598, 607-608.
5. Jingbo Dong, Prosecutorial Discretion at the International Criminal Court: A Comparative Study, Journal ofPolitics and Law 109 (2009).
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7. La Fave, Wayne R., The Prosecutor’s Discretion in the United States. American Journal of Comparative Law 532-548 (1970).
8. Roscoe Pound, Discretion and Mitigation: The Problem of the Individual Special Case’(1960) 4 Newyork University Law Journal, 926-927.
9. Black Laws Dictionary: Definition of terms and phrases of American and English Jurisprudence, Ancient and Modern, 6^th Edition.
10. R V Nixon 2011 SCC 34
11. Satyajit Boollell, ‘Challenges in Crime in the 21^st Century, (11^th head of Prosecuting Agencies Conference Grand Capthorne Waterfront, Singapore, March, 2012.
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13. Glen Harlan Reynold, ‘Ham Sandwich Nation: Due Process when everything is a Crime’ (2013) 113 Colombia Law Review Sidebar 102.
14. Allison Marston Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’ (2003) 97 American Journal of International Law 510-518.
15. Council of Europe, ‘The Role of Public Prosecutors in Criminal Justice System’ Recommendation Rec (2000) 4.
16. The Case of FTC V Standard Oil Company of Califonia,449 U.S. 232, 238-239 (1980).
17. State v Hyland, 431 N.W.2d 868,872-873.
18. Rebecca Krauss, ‘The Theory of Prosecutorial Discretion in Federal Law: Origins and Development’ (2009) 6 Seton Hall Circuit Review 1,3.
19. Christopher, E, Law Enforcement in Ancient Greece, Xenopoulous junus, 2006.
20. R. M. Jackson. The Machinery of Justice in England (6^th Edition Cambridge University Press 1972.
21. John H. Langbein, ‘The Origins of Public Prosecutors at common Law’ (1973) 17 American Journal of Legal History. 313-318.
22. The Judicature Act of 1789.
23. Richard S. Frase,’ Comparative Criminal Justice as a Guide to American Law Reform: How do the French Do it? How Can We Find Out? And Should We Care? (1990) California Law Review, 540.
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25. Criminal Procedure Law of China, section 142.
26. Jonathan John Mwalili.’The Role and function of Prosecution in Criminal Justice System’.
27. Criminal Procedure Code; Legal Notice 106 of 1984.
28. Gouriet v Union of Post Office Workers. (1977), 3 All England Reports.
29. Criminal Procedure Code.
30. Constitution of Kenya, 2010.
31. Brian D. skaret,’ A Victim’s Right to View: A Distortion of the Retributivists Theory of Punishment’ (2002) 28 Journal of Legislation, 239-352.
32. Lumumba and Kaluma, Judicial Review in Kenya Law and Procedure Jomo Kenyatta Foundation, 2007. 
33. John Austin, 1832’The province of Jurisprudence Determined, Cambridge University Press. Cambridge p.132.
34. Bentham J, An Introduction of Morals and Legislation. London, (1983). Althone Press.
35. The Office of the Director of Public Prosecutions Act, 2013, No. 2 of 2012.
36. Manfred Nowak, United Nations Convention on Civil and Political Rights: CCPR Commentary, 2^nd rev.ed.N. Engel Vertrag, 2005.
37. Sixth United Nations Congress on the prevention of Crime and the Treatment of Offenders, Milan, 26^th August to 6^th September, Report Prepared by the Secretariat (United Nations Publications. Sales No. E 86.IV).
38. Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26^th August, to 6^th September 1985, Report Prepared by the Secretariat. (United Nations Publications. Sales No. E.81.IV.4).
39. Eighth United Nations Congress on the prevention of Crime and the treatment of Offenders, Havana, 27^th August to 7^th September 1990, Report prepared by the Secretariat. (United Nations Publication. Sales No.E. 91. IV 2) Chapter 1.
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41. Jung.H. (1997). Plea Bargaining and its Repercussions on the Theory of Criminal Procedure. European Journal of Crime, Criminal law and Criminal Justice. (5)(2), 112.
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46. Section 137 of the Criminal Procedure Code, Laws of Kenya.

---

[1] Report of the Special Rapporteur on the independence of judges and Lawyers [A/HRC/20/19]. Para. 19] The Status and Role of Prosecutors. A United Nations Office on Drugs and Crime and International Association of Prosecutors Guide. United Nations Criminal Handbook Series, 2014.

[2] Definition of the Prosecutor. https://legal-dictionary.thefreedictionary.com/prosecutor

[3] Commission on Crime prevention and Criminal Justice Resolution. 17/2.

[4] Ibid.

[5] Kirk J Nahra, ‘The Role of Victims in Criminal Investigations and Prosecution. (1999), 33 The Prosecutor,28,30.

[6] The United States Supreme Court in Wayte V. United States, 470 U.S.598, 607-608.

[7] Jingbo Dong, Prosecutorial Discretion at the International Criminal Court: A Comparative Study, Journal ofPolitics and Law 109 (2009).

[8]  Davis Kenneth C., Discretionary Justice: A Preliminary Inquiry. Baton Rouge La. Louisiana State University Press (1999).

[9] La Fave, Wayne R., The Prosecutor’s Discretion in the United States. American Journal of Comparative Law 532-548 (1970).

[10] Roscoe Pound, Discretion and Mitigation: The Problem of the Individual Special Case’(1960) 4 Newyork University Law Journal, 926-927.

[11] Black Laws Dictionary: Definition of terms and phrases of American and English Jurisprudence, Ancient and modern, 6^th Edition.

[12] R V Nixon 2011 SCC 34.

[13] Satyajit Boollell, ‘Challenges in Crime in the 21^st Century, (11^th head of Prosecuting Agencies Conference Grand Capthorne Waterfront, Singapore, March, 2012.

[14] Daniel D. Ntanda Nsereko ‘Prosecutorial Discretion Before National Courts and, International Tribunals. University of Botswana.

[15] ibid.

[16] ibid.

[17] Glen Harlan Reynold, ‘Ham Sandwich Nation: Due Process when everything is a Crime’ (2013) 113 Colombia Law Review Sidebar 102.

[18] Allison Marston Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’ (2003) 97 American Journal of International Law 510-518.

[19] ibid.

[20] Council of Europe, ‘The Role of Public Prosecutors in Criminal Justice System’ Recommendation Rec (2000) 4.

[21] The Case of FTC V Standard Oil Company of Califonia,449 U.S. 232, 238-239 (1980).

[22] Ibid.

[23] State v Hyland, 431 N.W.2d 868,872-873.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Rebecca Krauss, ‘The Theory of Prosecutorial Discretion in Federal Law: Origins and Development’ (2009) 6 Seton Hall Circuit Review 1,3.

[28] Christopher, E, Law Enforcement in Ancient Greece, Xenopoulous junus, 2006.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] R. M. Jackson. The Machinery of Justice in England (6^th Edition Cambridge University Press 1972.

[34] John H. Langbein, ‘The Origins of Public Prosecutors at common Law’ (1973) 17 American Journal of Legal History. 313-318.

[35] Ibid.

[36] Ibid.

[37] The Judicature Act of 1789.

[38] Ibid.

[39] Richard S. Frase,’ Comparative Criminal Justice as a Guide to American Law Reform: How do the French Do it? How Can We Find Out? And Should We Care? (1990) California Law Review, 540.

[40] Ibid.

[41] Loic Cardiet,’ Introduction to French Civil Justice System and Civil Procedure Law’ (2011) Reitsumeikan Law Review, 331.

[42] Ibid.

[43] Criminal Procedure Law of China, section 142.

[44] Jonathan John Mwalili.’The Role and function of Prosecution in Criminal Justice System’.

[45] Ibid.

[46] Section 26 of the Constitution of Kenya (Repealed).

[47] Section 26 (3) of the Constitution of Kenya (Repealed).

[48] Section 87 of the Criminal Procedure Code.

[49] Section 82 (1) of the Criminal Procedure Code; Legal Notice 106 of 1984.

[50] Ibid.

[51] Gouriet V Union of Post Office Workers. (1977), 3 All England Reports at page 88.

[52] Section 85 of the Criminal Procedure Code.

[53] Ibid.

[54] Article 57 of the Constitution of Kenya, 2010.

[55] Ibid.

[56] Ibid.

[57] Ibid.

[58] Brian D. skaret,’ A Victim’s Right to View: A Distortion of the Retributivists Theory of Punishment’ (2002) 28 Journal of Legislation, 239-352.

[59] Ibid.

[60] Lumumba and Kaluma, Judicial Review in Kenya Law and Procedure Jomo Kenyatta Foundation, 2007. 

[61] John Austin, 1832’The province of Jurisprudence Determined, Cambridge University Press. Cambridge p.132.

[62] Bentham J, An Introduction of Morals and Legislation. London, (1983). Althone Press.

[63] Ibid.

[64] R V Banks, 2KB 621.

[65] Ibid 65.

[66]Berger V United States, 55 s.ct.626 (1935).

[67] Ibid.

[68] R v Hepworth 1928 AD 265.

[69] Ibid.

[70] Ibid.

[71] Ibid.

[72] The Office of the Director of Public Prosecutions Act, 2013, No. 2 of 2012. Available at. http.//www.kenyalaw.org/pdfdownloads/Acts.

[73] Ibid.

[74] Article 1(1) of the Constitution of Kenya, 2010.

[75] Article 1(3) of the Constitution of Kenya, 2010.

[76] Ibid.

[77] Article 157(6) of the Constitution of Kenya, 2010.

[78]Article 157(6)(a) of the Constitution of Kenya, 2010.

[79] Article 157 (6) (b) of the Constitution of Kenya, 2010.

[80] Article 157(c) of the Constitution of Kenya, 2010.

[81] Article 157(8) of the Constitution of Kenya, 2010.

[82] Article 157(10) of the Constitution of Kenya, 2010.

[83] Article 157 (11) of the Constitution of Kenya, 2010.

[84]  Chapter six of the Constitution of Kenya, 2010.

[85] Article 157 (4) of the Constitution of Kenya, 2010.

[86] Office of the Director of Public Prosecution Act, 2013.

[87] Section 13 of the Office of the Director of Public Prosecutions Act, 2013.

[88] Section 22 of the Office of the Director of Public Prosecution’s Act, 2013.

[89] Section 4 of the Office of the Director of Public Prosecutions Act, 2013.

[90] Section 5 of the Office of the Director of Public Prosecutions Act, 2013.

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

[92] Section 23, 24 and 25 of the ODPP Act, 2013.

[93] Cap 75 of the Laws of Kenya.

[94] Section 82 of the Criminal Procedure Code Cap 75.

[95] Ibid.

[96] Section 82(2) of the Criminal Procedure Code. Cap 75.

[97] Section 83 of the Criminal Procedure Code, Cap 75.

[98] Section 86 of the Criminal Procedure Code, cap 75.

[99] Section 88 of the Criminal Procedure Code, cap 75.

[100] Section 87 of the Criminal Procedure Code, cap 75.

[101] Section 88 of the Criminal Procedure Code Cap 75.

[102] Article 2(6) of the Constitution of Kenya 2010, laws of Kenya.

[103] Article 2(5) of the Constitution of Kenya, 2010, Laws of Kenya.

[104] Manfred Nowak, United Nations Convention on Civil and Political Rights: CCPR Commentary, 2^nd rev.ed.N. Engel Vertrag, 2005.

[105] Sixth United Nations Congress on the prevention of Crime and the Treatment of Offenders, Milan, 26^th August to 6^th September, Report Prepared by the Secretariat (United Nations Publications. Sales No. E 86.IV).

[106] Ibid.

[107] Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26^th August, to 6^th September 1985, Report Prepared by the Secretariat. (United Nations Publications. Sales No. E.81.IV.4).

[108] Ibid.

[109] Eighth United Nations Congress on the prevention of Crime and the treatment of Offenders, Havana, 27^th August to 7^th September 1990, Report prepared by the Secretariat. (United Nations Publication. Sales No.E. 91. IV 2) Chapter 1.

[110] United Nations Office on Drugs and Crime,” United Nations Convention Against Corruption: Article 11 implementation guide and evaluation framework’ chapter 4.

[111] Office of the Director of Public Prosecutions,2019 United Nations Office on Drugs and Crimes.

[112] Office of the Director of Public Prosecution.

[113] Ibid.

[114] Brandy V US, 1970, P.725.

[115] Black’s Law Dictionary.

[116] Jung.H. (1997). Plea Bargaining and its Repercussions on the Theory of Criminal Procedure. European Journal of Crime, Criminal law and Criminal Justice. (5)(2), 112.

[117] State V Hinners, 1991 P.843.

[118] Aloti D, (2005), plea Bargain and the Trial Penalty in Canada, International Journal of Human Rights and Constitutional Studies, 3(3), 206-219.

[119] Ibid.

[120] Di Luca, J, (2005) Expedient Mc Justice or principled Alternative Dispute Resolution. A review of Plea Bargain in Canada. The Criminal Law Quarterly, (50) (1).

[121] Amnesty Act. (2000). Uganda Legal Information Institute.

[122] Section 137 of the Criminal Procedure Code, Laws of Kenya.

[123] Ibid.

[124] Section 137 A of the Criminal Procedure Code.

[125] Ibid.

[126] Section 137 A (4) of the Criminal Procedure Code.

[127] Section 137(B) of the Criminal Procedure Code.

[128] Section 137 (c) of the Criminal Procedure Code.

[129] Section 137 (D) of the Criminal Procedure Code.

[130] Section 137(E) of the Criminal Procedure Code.

[131] Section 137 (F) of the Criminal Procedure Code.

[132] Section 137 (M) of the Criminal Procedure Code.

[133] Section 137 (G) Of the Criminal Procedure Code.

[134] Section 137 (N) of the Criminal Procedure Code.

[135] Section 137(K) of the Criminal Procedure Code.

[136] Section 137 (J) of the Criminal Procedure Code.

[137] Office of the Director of Public Prosecution Guidelines on plea bargain.

[138] Ibid.

[139] Ibid.

[140] Section 28 of the ODPP Act.

[141] Ibid.

[142] Ibid.

[143] Ibid.

[144] Ibid.

[145] Article 157 of the Constitution of Kenya, 2010.

[146] AEquitas. The Prosecutors Resource: Witness Intimidation, Washington D.C. 2014.

[147] Fairfield, Joshua A.T., and Erick Luna, Digital Innocence’’ Cornell Law Review. Vol 99. No. 5, 2013 pp. 981-1013.

[148] Ibid.