Constitutional accountability

Why withdrawal of high-profile cases by the ODPP is a threat to constitutionalism in Kenya

By Felix Okanga

The Constitution of Kenya 2010 brought with it an aura of belief and trust in constitutionalism as a governance tool. The new faith in the Constitution was because of the apprehension that the Constitution demanded accountability from State organs and officers, public officers, and any person who applies the Constitution or any law.

The import of the provisions of Article 10 of the Constitution is that there are specific non-negotiable national values and principles of governance binding on all State organs, State Officers, and public officers, including the Director of Public Prosecutions (DPP). Subsequently, public officers are expected to have regard for the national values and principles of governance at all material times when acting in their capacity as public officers.

Whereas the DPP has the power to discontinue any criminal proceedings at any stage before judgement is delivered, how that authority has been invoked in the recent past by the DPP has raised eyebrows and left more questions than answers. Discussions around the withdrawal of cases by the DPP that have come in quick succession since the installation of the new political administration have been compounded by the fact prima facie beneficiaries are individuals within the political class, especially those whose political inclination is towards the current administration. 

It has also become apparent that the cases affected by the DPP’s exercise of his constitutional powers to discontinue cases are those that provoke public emotions since they involve offences of corruption and abuse of office, creating a worrisome situation as to whether those mandated with enforcing laws relating to ethics and principles of good governance are acting per the Constitution and other related laws or are their conducts dictated by the politics of the day.

In discontinuing the court proceedings, the DPP has given several reasons for which lack of evidence, inadequate investigations by the Director of Criminal Investigations (DCI), and lack of witnesses appear to be the most common. In some instances, the DPP, through investigating officers, has stated that he was under pressure from a higher authority to prefer charges against the individuals.

The reasons by the ODPP lead to the inevitable question of whether the investigative authorities and, indeed, the Office of the Director of Public Prosecutions (ODPP) were victims of state capture engineered to settle political scores as was asserted by the Kenya Kwanza brigadiers during their campaigns in the run-up to the August 2022 general elections. Going by recent events, the answer will resoundingly be in the affirmative.

By embarking on the termination of “high profile” cases, the ODPP has put itself in the limelight resulting in aspersions being cast as to whether the office is independent as envisioned in Article 157 of the Constitution. Section 6 of the Office of the Director of Prosecutions Act, No 2 of 2013, decrees that the DPP shall be subject only to the Constitution and the law and shall not be under the direction or control of any person or authority in the exercise of his powers and functions.

By design, wording, and architecture of the Constitution, constitutional bodies exercising sovereign powers are independent and only answerable to the Constitution and the law hence the prescription of accountability as a national value and principle of governance in Article 10(2)(c)of the Constitution.

As the constitutional officer tasked with instituting and undertaking criminal proceedings against any person, the DPP must look at and interrogate all evidence brought to him before deciding to charge. It sounds incompetent to prefer charges and take it through the motions of plea taking, pre-trial and trial only for the DPP to experience epiphany by discovering that the evidence is insufficient. That in itself points toward the dereliction of constitutional duty. 

By embarking on the termination of “high profile” cases, the ODPP has put itself in the limelight resulting in aspersions being cast as to whether the office is independent as envisioned in Article 157 of the Constitution

The Author

Corollary to the foregoing, the DPP has the power to direct the Inspector General of Police or any other investigative body to investigate any criminal conduct. The residual power in directing investigations is that the DPP can direct further investigations where the evidence provided to him is insufficient. In other words, the DPP is not duty-bound to accept the evidence brought to him as it is and proceed to charge even though the evidence is insufficient.

To insinuate that the DPP succumbed to pressure and preferred charges is an affront to the Constitution and the rule of law. Constitutional officeholders enjoy constitutional protection from adverse action in discharging their duties to ensure that no threat or intimidation will stop them from objectively discharging their constitutional mandates.

It is appreciated by the legislature that there is a need to have public confidence in the DPP and, by extension, all public offices to build trust. This, with specific regard to the ODPP, will help dispel the popular notion within the public that the criminal justice system in Kenya exists to punish the poor while the rich and the political class buy their way out. 

For constitutionalism to establish itself as a tool of governance in the country, all State organs, State officers, and independent officeholders must discharge their respective mandates in strict adherence to the law and in a manner that promotes the national values and principle of governance espoused in Article 10 of the Constitution. They should remain mindful of their institutional independence and the need to guarantee to the general public that principles of governance and national values are not merely texts in the Constitution but that they are practical and achievable as demonstrated in their actions. 

The public should realise its constitutional powers to hold State organs, State officers, and public officers accountable for exercising their delegated powers and authority. Failure to do so might result in unchecked and arbitrary use, abuse, and usurpation of the powers, with the risk being the country straying from a country governed by the Constitution and the rule of law to a country where political wish, will, and whim dictates the conduct of the public officers, State organs and State officers.

The author is an Advocate of the High Court of Kenya.