For all his clout, DPP gives nothing to write home about

By Ndung’u Wainaina

This is the first of a two-part series tracing key developments in Office of the Director of Public Prosecutions (ODPP) of Kenya since its establishment as an independent entity following the promulgation of the Constitution of Kenya, 2010. Part Two will look into progress and what impact it has had, while this first instalment attempts to address itself to what benchmarks were set to fully operationalise the ODPP.

Before the enactment of the new Constitution of Kenya, 2010, all public prosecutions in Kenya were conducted under the auspices of the Attorney-General’s (AG) office. In particular, the prosecutions were vested on the Department of Public Prosecutions under the AG’s Chambers, headed by a Director of Public Prosecutions. That arrangement was similar to many others, especially in the commonwealth countries.

However, due to what appeared to be a conflict of interest within the AG’s office and abuse of prosecutorial powers over the years, the people of Kenya introduced major constitutional changes to transform the office and make it fully independent, impartial and professional.  The position of the Director of Public Prosecutions (DPP) was established by Article 157(1) of the Constitution of Kenya as an independent office, making Kenya’s DPP one of the most unique in the world. It is one of the State offices described under Article 260 of the Constitution.

Under Article 157(2), the DPP is nominated by the President, approved by the National Assembly and appointed by the President. The DPP must have same qualifications as those required of a judge of the High Court.

Before promulgation of the constitution on August 27, 2010, Keriako Tobiko, having been appointed by the President Mwai Kibaki in May 2005, occupied the office of the DPP. Then Attorney-General, the Hon Amos Wako, relinquished the authority of the office to Tobiko on an acting arrangement awaiting appointment of the substantive DPP.

On January 28, 2011, President Kibaki announced the appointment of Kioko Kilukumi (among other appointments) as the new DPP. This appointment was challenged in the High Court and in various other forums on its constitutionality. The High Court nullified the appointment, and the President accordingly reversed it. This was first signal that President Kibaki was never for the new constitutional order even as he basked in its promulgation.  The position of DPP was then advertised and Tobiko was among the applicants for the post.

Throughout the interview, Tobiko had to defend himself against allegations of corruption, incompetence and lack of commitment to reforms.  The ODPP eventually became operational on July 1, 2011, with his appointment as DPP under the new constitution.

Nothing outstanding

Tobiko has always remained firmly pro-establishment despite the enormous independence and security of tenure of the office provided for in the Constitution.  He has never breathed life into the independence of the office and endeared himself to Kenyans as an independent person with the ability to transform the office of the DPP into a world-class prosecutorial service. There is no noticeable outstanding performance for the period he has been in office.

Article 157 of the constitution provides the DPP with powers to institute criminal investigations and to conduct criminal prosecutions, which are two key components in criminal justice system. The DPP is mandated to exercise prosecutorial powers by instituting and undertaking criminal proceedings against any person. These proceedings may be instituted before any court other than a court martial.

The office has constitutional powers to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct. It is worthwhile to note that tackling crime and corruption in the country will not go far without a substantive overhaul of the rotten national crime investigation agency.

The Directorate of Criminal Investigation (DCI) is a serious hindrance to effective functioning of the ODPP. It is not just a corrupt agency; it is rotten to the core. The ODPP needs to be at the forefront in demanding an overhaul of the crime investigatory arm of the National Police Service. It is the responsibility of the office to ensure due regard for public interest, the interest of the administration of justice and the prevention and avoidance of abuse of legal process.

The Inspector-General must comply with such directions, which would make the ODPP different from many others. Other functions of the  ODPP include  advising the police on possible prosecutions, undertaking public prosecution of cases forwarded by all investigation agencies, representing the State in all criminal cases, criminal applications and appeals,  advising government ministries, departments and state corporations on matters pertaining to the application of criminal law, expounding and disseminating the National Prosecution Policy and the code of conduct for prosecutors, and monitoring the training, appointment, and gazettement of public prosecutors in statutory corporations.

The DPP is supposed to address parliamentary questions relating to administration of criminal justice and complaints raised by members of the public, watchdog bodies and other institutions, as well as undertake other administrative roles relating to efficient and effective administration of criminal law in the country.

Reforming the prosecutorial sector is critical under the new constitution and in the administration of justice. In March 2012, the DPP finalised a detailed Strategic Plan for the period 2012–2015, covering its vision, mission and core values, its role in the implementation of Vision 2030, and resource mobilisation, among other aspirations.

The plan is tailored to transit from the department under the AG’s office to the new DPP. The DPP has set out a comprehensive service charter committing itself to undertake speedy, efficient and effective prosecutions of all criminal cases in court, advise the police and all government departments professionally and efficiently, respond to client inquiries and complaints in timely manner, and treat clients’ concerns with confidentiality and give them the urgency they deserve.

Myriad shortcomings

In its reform strategy, the DPP has identified both its internal strength and weaknesses and external challenges. The strength of the ODPP is drawn from the constitution: a degree of autonomy and independence, clear identity, existing experience and structure as a department in the AG’s office, established central facilitation and network of offices across the country, a code of conduct and prosecution policy, centrality and significance in the criminal justice system.

The ODPP has identified weaknesses that include understaffing, poor leadership and management skills, lack of succession management plans, bureaucratic processes and procedures, weak collaboration and coordination with stakeholders, high level of staff attrition, limited adoption of information and communication technology (ICT), lack of criminal law reform mechanism to continuously update the various laws that impact prosecution services, and lack of a comprehensive and networked complaints-handling mechanism.

Other challenges include lack of financial, administrative and operational independence, inadequate and unequal infrastructure and resources, noncompetitive terms and conditions of service, lack of coaching and mentorship programmes, inadequate budgetary allocation, in-effective performance management systems, lack of a monitoring and evaluation framework, as well as inadequate professionalisation of prosecution services, among other wide-ranging challenges.

To overcome these challenges, the Office has identified its priorities as restructuring and reforming ODPP in line with the constitution, professionalisation of prosecution services, witness and victim care and support, decentralisation of prosecution services to promote access to justice, enactment of enabling and facilitative legislation for the DPP, and a review and revision of key prosecutorial instruments.

In addition, it will address the automation and modernisation of processes and procedures, capacity building and staff development, re-branding and repositioning the DPP, promotion of inter- and intra-agency cooperation and collaboration, promotion of international cooperation in criminal matters, and performance management systems, including monitoring and evaluation. The DPP is on record promising a review of the prosecution manual for economic and international crimes and enacting the National Prosecution Policy and the training manual.

One critical factor for proper performance of the ODPP is timely, independent and adequate funding. In addition to shoddy investigations, financial constraints, due to low budgetary allocations, are said to be the main obstacle at ODPP. According to its 2012-2015 Strategic Plan, the ODPP has projected financial requirements estimated at Sh18.89 billion.

Criminal justice crisis

During the 2012/2013 financial year the ODPP was allocated Sh1.08 billion ($11.9 million) less from the Sh3.28 billion ($35.7 million) it had requested Treasury. Yet, the Sh3.8 billion was even less than the Sh4.5 billion ($47.5 million) that the DPP had stipulated in its strategic plan for about 16 key prioritised areas.

The DPP was quoted on June 24, 2012 as saying the underfunding of his office could push the country to the brink of a criminal justice crisis. He expressed fears that the office would not recruit prosecutors in the 2012-2013 financial year due to shortage of funds.

The DPP has appeared before the Parliamentary committee on Justice and Legal Affairs and pleaded for increased budgetary allocation, saying the shortfall would force them to scale down on key projects and would be unable to deliver on its mandate properly. He argues that the new office lacks even the most basic equipment and facilities to enable it enhance efficiency and effectiveness in service delivery, making it difficult for the office to carry out its duties efficiently, especially in handling emerging crimes.

Tobiko was quoted as having told the committee: “The inability to carry on the above programmes/projects will very significantly jeopardise the implementation of the necessary reforms within the DPP, for effective and efficient delivery of prosecution services.”

The DPP hopes to get the bulk of the resources from the Exchequer but also plans to seek financial assistance from development partners and public-private-partnership (PPP) initiatives.

The ODPP has undertaken to negotiate with donors and other development partners for additional funding. It has also pledged to ensure there is accountably and transparency in the utilisation of the available funds by directing resources to plan priorities to ensure efficiency and effectiveness. The mind-set of our rogue Parliament has never shifted to see the essence of allocating sufficient resources to this critical agency.

One of the biggest problems faced by the DPP, arising directly from the low budgetary allocations, is shortage of staff. In February 22, 2012, Tobiko was reported in the Daily Nation as saying that the backlog of cases in courts was due to shortage of State counsels, and blamed it on lack of funding.

According to ODPP Strategic Plan 2012-15, the number of authorised staff at the ODPP is 453, comprising 132 legal staff and 321 central facilitation staff. This number has significantly changed following recent recruitments. In order to effectively implement the Strategic Plan, the DPP proposes that the optimal staff establishment should be 1291, comprising 927 legal staff and 364 central facilitation services staff. Part of the expansion programme being undertaken by the DPP is opening offices in all the 47 counties, which require extra staff.

The new legal dispensation provides for training to ensure that it’s offering the best services for the society. The DPP is still grappling with the efforts to establish a training institution for its staff. The DPP has also been quoted as saying that his office has set up a pool of external lawyers who would be called in to handle complex cases on a contractual basis.

The National Prosecution Service law has changed the status of the ODPP radically, into the National Prosecution Service (NPS). The law defines the entire prosecutorial sub-sector in line with the constitution. It makes provisions for the establishment of the National Prosecutions Service, the independence, organisation, management, monitoring, supervision and control of prosecutions, functions of the National Prosecutions Service, functions and powers of the DPP and other officers in the Service and matters.

The law seeks to establish the NPS board, to be headed by the DPP, as the body charged with the recruitment or appointment of staff, promotion, discipline, determination of terms and conditions of the service and staff welfare, among other matters.

The law provides for the ODPP to engage with many other stakeholders in offering prosecutorial services, which should be exploited. However, most importantly, it breaks down the powers of the ODPP in dispensing its responsibilities, which is critical for the success of its work. It empowers the DPP to obtain any information, documents or material necessary for criminal investigations and prosecutions, from any officer in the government or private sector, making it a criminal offence for any such officer to wilfully fail or neglect to comply with the requisition by the DPP.

Strategy lacking

The law seeks to establish the key sources of funding for the service as Parliamentary allocations, donations and grants among others. It provides that the Service may establish a National Prosecutions Service Fund and open the ODPP for scrutiny by providing that the DPP shall submit a report before September 30 every year, to the President and the Speaker of the National Assembly on the performance of the Service. The Speaker shall lay the report before the National Assembly within seven days after the National Assembly first meets, after the Speaker has received the report. This emphasises the need to ensure ODPP is not only allocated adequate resources, but also that the funds are channelled directly from the Consolidated Fund.

In addition, the law compels the National Prosecution Service to hold an annual convention to discuss strategic issues involved in prosecution for the purposes of improving the standards of service delivery.

Co-operation with stakeholders

For the record, as I conclude, several sectors in the criminal justice system have reformed expansively while, in others, key changes are yet to be realised. The ODPP stands between the two states of affairs. It is yet to make impact. The office has undergone tremendous constitutional changes which have given it autonomy, but this has not translated into results.

Financial constraints appear to be the key obstacle to the ongoing reforms in the ODPP. The twin responsibilities, or functions, of directing investigations and subsequent prosecution, make the ODPP a critical office. Its role starts from the moment the crime is committed to the point at which the final determination of the trial is made. It is important that the funds channelled to this office are commensurate with its broad responsibilities.

It is critical that the ODPP broadens its cooperation with other sectors, especially the civil society groups undertaking criminal justice and governance programmes, to gain other forms of support and assistance essential for its work.

While sourcing for external legal experts to handle complex cases, the ODPP must ensure fairness in terms of remuneration, for both consultants and full-time employees so that morale amongst staff is not affected.

Unlike other institutions, such as the Judiciary, the ODPP has not clearly endeared itself with a majority of the citizens. One explanation for this is that whereas the Judiciary is a melting point for all manner of legal disputes, both civil and criminal, the ODPP deals with criminal investigations and prosecutions, under which only a relatively small section of the population falls.

The ODPP must thus get more involved in advocacy work on crime detection and prevention.  While as this is not a mandate under the constitution, the office has responsibility to ensure the rule of law is promoted in any and every aspect. One of the extended functions of the DPP is to address complaints raised by members of the public, watchdog bodies and other institutions. This duty should go hand-in-hand with offering public education on matters relating to crime.

There is need for the DPP, to de-link its image from that of the unreformed police service. It is common for the public to view the criminal justice system as one unit, with the consequences that one institution is associated with poor performance of a completely different institution in the system. The DPP must make the head start in ensuring that criminal investigations are conducted professionally and thoroughly, without having to appear to be taking the orders from the police service itself.^ 

Writer is Executive Director, International Centre for Policy and Conflict; nwainaina@icpcafrica.org