Public Prosecutor and Constitution

It is notable that both the new Prime Minister of the United Kingdom and a potential President of the United States have a background as law enforcement. Here we have people who have been strictly neutral throughout their careers now taking on political office – and leadership roles.

The office of Attorney General was one of the innovations in our Constitution which people hoped would greatly improve the judicial system and even help curb corruption. Strict detachment from political loyalties is a fundamental requirement of this office.

An article from September 15 in the Sunday Nation highlighted the concern of many Kenyans at the failure of many prosecutions – particularly of high-profile individuals – and the fact that they so often seem to be withdrawn before they even get off the ground, usually by the DPP, the agency that has a virtual monopoly on bringing criminal cases to justice.

Some of the seemingly unexpected beneficiaries were close to the government. Corruption cases are a particularly suspect subject. If people were corrupt in one context, why would they hesitate in another?

A bit of history

Previous constitutions did not mention the DPP. In fact, the 1963 and 1969 constitutions specified that the Attorney General had the power to to initiate criminal proceedings against someone, to take over criminal proceedings initiated by someone else and to discontinue criminal proceedings initiated by himself or by someone else at any time before judgment.

Historically, criminal prosecutions were not only initiated by the public prosecutor or the police. According to Wikipedia: “In the 18th century, almost all crimes against the person were prosecuted privately, usually by the victim.” And then prosecutions became more of a state matter. Most prosecutions were then initiated by the police.

For most of the country's independence history there was a DPP, but that person essentially did so on behalf of the AG.

Kenyans were disturbed by the fact that Attorneys General were very close to the government. Original provisions that made it difficult to dismiss them soon disappeared. And although their prosecution powers were theoretically independent of other individuals, the prevailing view was that Attorneys General, or DPPs, were too inclined to follow the will of the government. A particular problem was the tendency to use Attorneys General's constitutional power to stop prosecutions (“nolle prosequi”) when the government so desired.

The Kenya Constitutional Review Commission sought to change this. It proposed that the DPP should become an independent constitutional authority exercising “state powers” of law enforcement, but that Parliament could also delegate these powers to another authority. To stop the abuse of the past, the DPP could You may take over a prosecution initiated by someone else, but you cannot withdraw a prosecution without court approval.

The public prosecutor must “take into account the public interest and the interest of justice”.

The DPP was no longer subordinate to the Attorney General and was therefore supposed to be independent of the government.

What does the 2010 Constitution say?

Much of this remained and still remains in the Constitution. There is, however, one key difference. The CKRC wanted the DPP to be nominated by the Judicial Service Commission – like a judge – and confirmed by a House of Parliament (the President would have had no other choice).

The Bomas draft (which started with the CKRC draft but made many changes) wanted the DPP to be nominated by the PSC, but the Council of Europe changed this to the current system: nomination and appointment by the President – but with the approval of the National Assembly. Why they made this change is not clear.

Interestingly, the CKRC originally wanted the Police Commissioner (Inspector General of Police) to be appointed only by the President with the approval of one House of Parliament. The CoE wanted to add a small safeguard – this must be done with the approval of the Cabinet. Of course, if anything, this is an even smaller safeguard than the approval of Parliament. Parliament occasionally has a mind of its own, the Cabinet practically never. Anyway, the infamous Parliamentary Select Committee removed him in Naivasha.

After 2010, a new police law did briefly provide for a process whereby the candidate for IGP was selected before the president intervened. But an amendment to the law soon abolished this process and the courts were unable to object because the new law merely reflected the constitution.

The reality

Both the chief investigator and the prosecutor in our criminal justice system owe their positions to the president. In theory, they should be able to resist influence while in office, since they are in office for a limited and not very long term and are difficult to remove. But in reality, the background of the appointment leaves a lasting impression. And when the main criteria for important appointments seems to have to do with rewards and relationships rather than competence or integrity, it is hardly surprising that the loyalty of the appointees tends in the wrong direction.

The first DPP under the Constitution had already been DPP under the old system. And to make matters worse, towards the end of his term, then President Uhuru Kenyatta offered him a post as Cabinet Secretary. What better way to make future DPPs feel that they would benefit from the President by doing the will of the government?

In order to bring about the change that the new constitution seeks to bring about, it is essential to make the people who are in power and who want to remain in power aware of their true radicalism.

Sometimes it seems too easy to carry on as before (before the Constitution). Of course, people who found the old system to be a good fit for them want to carry on as before. In a way, the Constitution makes this too easy.

Various organisations that were supposedly granted independence in certain matters simply do not act independently (Parliament is another example).

Even the provision not to discontinue prosecutions without judicial approval is not so easy to implement. The courts may sometimes refuse to grant their approval. But they cannot force the ODPP to make serious efforts at prosecution.

Various proposals have been made to change the situation. Should the EACC be given the power to bring cases directly to court? (It often seems wrong to give someone both the role of investigator and prosecutor.)

If the prosecution declines to prosecute, is there any way for someone else to have access to the available evidence and assess its strength?

The DPP exercises the state's power to prosecute. There is no reason to believe that the centuries-old tradition of private prosecution should be abolished by the Constitution.

Law enforcement policy

In official prosecution policy (as in other countries), the main criterion for deciding whether to prosecute is “would an impartial tribunal, on the basis of the available evidence, pronounce a conviction?” Sometimes there may be reasons for dropping a charge, for example because the evidence turns out to be weak. But how often should this happen to experienced prosecutors? Inevitably, the suspicion arises that the case was either poorly prepared from the start (or for other reasons?) or that something inappropriate happens later.

The second standard for determining whether to prosecute is public interest. As the Constitution states, “the Attorney General should 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.” Several commentators and courts have pointed out that there must be some meaning to this statement. But here, as is all too often the case, is the “public interest” turning out to be the interest of the government or even the governors (i.e., the president, the ruling class, etc.)?