As the superintendent of all prosecutorial authority in Kenya, the Office of the Director of Public Prosecution ODPP wields constitutional power over the Independent Policing Oversight Authority, the Directorate of Criminal Investigation DCI and the Ethics and Anti-Corruption Commission EACC.
The DPP, as the bearer of the prosecution burden, can, lawfully, order these institutions to investigate any crime and supervise them to ensure professionalism.
Kenyans are, justifiably, frustrated when their sovereign power (in the ODPP’s office) to order investigations and prosecute is abused, misused and underused to oppress the weak or ODPP abdicates or invents excuses for failure or prosecutes selectively. Despite the immense authority ODPP has allowed DCI, IPOA and EACC, especially, to run away with incompetent investigations that collapse at trial and entrench impunity. ODPP shares the blame when these institutions’ bogus delivery.
Now that ODPP has ordered IPOA to investigate Albert Ojwang’s murder, the DPP must supervise this straightforward investigation to ensure IPOA neither procrastinates, deviates, nor engages in its usual stunts.
The ODPP was established in 2010 with security of tenure to insulate it from external influence, but its performance post-2010 has not inspired hope. Time without number, DPP has lost profile trials out of incompetence and carelessness, but also internal sabotage and collusion within the criminal justice system.
Often, the ODPP exercises discretion to discontinue trials, too generously, to favour the powerful with no such favour for the poor against whom spurious charges are approved with alacrity.
Meanwhile, the ODPP appears impotent against thousands of cold and unsolved cases.
In the past ten years, ODPP office holders have abdicated their duty by declining to personally prosecute cases in court. This portrays them as arrogant towards trial advocates and the criminal justice system.
The DPP cannot be too busy to practice among professional colleagues. This DPP ought to, personally, prosecute the Albert Ojwang and Baby Pendo trials to conclusion to prove his mettle and demonstrate solidarity with the people against police brutality.
When he descends into the arena, the DPP sharpens his skill, develops jurisprudence and discovers professional gaps and competence in the ODPP through active practice. This way the DPP will not be blindsided by junior prosecutors.
Cronyism at the ODPP has entrenched for decades and any incoming DPP becomes its victim unless they strike and fight. The DPP cannot afford to fold its arms in surrender just to keep the job.
The recent collapse of the 2.5 billion heroin trial after 11 years of trial and appeal illustrates this inertia. The appellate court in Mombasa found the investigation was sloppy, evidence was extracted illegally, and the ODPP drew a false charge sheet.
The ODPP destroyed crucial evidence during the trial against a court order, under presidential pressure, and the High Court ruled the entire trial breached the Constitution because the incriminating evidence was inadmissible. And the investigating agencies did not even understand the law of the sea required to conduct the trial.
The redeem itself ODPP must change course by reviewing the suitability and competence of all prosecutors, hiring, retraining and supervising the suitable ones.
To ensure competent prosecution, DPP should rein in the DCIs, IPOA’s and EACCs’ incompetence but also establish synergy with them, lobby for adequate tools, training and equipment.
ODPP should resist Executive pressure and regard only evidence and public interest when prosecuting. After moving the Court to terminate a high-profile trial, ODPP must also convince the public that the withdrawal was warranted and apprise them, periodically, on steps to revive and retry.
The termination spree of high crimes charges against politicians ought to be explained to the public.
ODDP should spearhead the repeal of all unconstitutional penal laws or stop prosecuting them altogether.
The DPP should descend from its high horse and embrace advocates, the public, and the media as equals. ODPP should assist EACC, DCI and IPOA in establishing Cold Case Units and order them to reopen high-profile unsolved cases like the Dr Robert Ouko and JM Kariuki murders.
As a matter of urgency, he should prosecute suspects identified by the US in 2022 for diverting billions into property in Nairobi before they come for him and capture the criminal justice system.
The writer is an Advocate of the High Court
By David Ochami