Although most prosecutors legally and ethically perform their duties, their practices and policies often produce unjust results, which spells the need for urgent reform
By Austin Ekea
The Office of the Directorate of Public Prosecution (ODPP), which derives its mandate from Article 157 (6) of the Constitution, is the national prosecuting authority in Kenya. The drafters of the Constitution 2010 saw it wise and necessary to relieve the Attorney General of prosecutorial powers, in whose office all state prosecution was vested. The AG also acted as the DPP prior to the 2010 Constitution.
The main reason the Attorney General lost prosecutorial powers and for creating the ODPP was to enhance independence in the exercise of those powers. This is evidenced by Article 157 (10) that provides that the DPP “shall not require the consent of any person or authority for the commencement of criminal proceedings,” and that, in the exercise of his or her powers or functions, “…shall not be under the direction or control of any person or authority.”
So saying, the ODPP is the most powerful organ in our criminal justice system.
The political class has always had a love-hate relationship with the ODPP depending on the distance between them and the seat of power. Those near the seat of power support the ODPP’s actions even when they cross the line fully. On the other hand, the ‘back-benchers’ always have a belief that the state through the DCI, EACC and ultimately the ODPP are specifically mandated with ‘fixing them’ to toe a particular political line.
From the foregoing, it is incumbent upon the officers of the ODPP ensure that in carrying out their duties, the words of Lord Justice Hewart reverberate in their minds, that: “Justice should not only be done but should manifestly and undoubtedly be seen to be done.”
Prosecutors must note that their role as law enforcement officers while representing their independent and partial institution, is defined by the authority to charge and control over the plea bargaining process. They should therefore be aware that their role is quasi-judicial in nature, and that they are required to guarantee that they are objective, relentless and independent. It is also meet that prosecutors are honest and exercise fairly the discretion entrusted on them in good faith and without taking into account the political implications of their actions. Finally, prosecutors should bear in mind that seeking justice is their duty, not mere conviction. In our case as a nation, perhaps, the vagueness of the expected standard of the unfettered discretion of a prosecutor enables them to define justice as they see fit, and, regardless of the circumstances of the case, many equate justice with convictions and imprisonment.
Power is a very elusive concept, since social scientists continue to debate how best to define the term “power.” In general, social scientists interpret power in terms of leverage, affecting the actions that other people take, or controlling what happens in terms of effects to other individuals. “For this reason, power can be understood as the capacity to “get [someone else] to do something that he [or she] would not otherwise do” or, alternatively, the ability to “modify the states of others by granting or retaining resources or administering punishments.” In either view, power is relational, partly defined by its subjects: “One cannot claim that someone has authority without specifying over whom.”
Power is further characterized typically by its purview and magnitude—that is, by the range of actions or outcomes it controls and by the extent to which it controls them.
The power of the DPP is demonstrated in Article 157 (4) which gives him authority to direct the Inspector-General (IG) of the National Police Service (NPS) to investigate any information or allegation of criminal conduct, with which the IG has no option but to fully comply.
The ODPP wields colossal powers to the extent that it is considered to exercise “all but unlimited discretion.” Robert Jackson, in his journal article ‘The Federal Prosecutor’, argues that the powers of the prosecutors reside in the fact that they have control over the life, liberty and reputation of the accused person. He writes that the prosecution has the power to, among other things, order arrests, present cases to the court on the basis of a one-sided presentation of the facts, and cause the citizen to be charged and held for trial.
Power to charge
The power to charge is a prime function undertaken by the DPP. The role of charging in essence symbolizes DPP’s control over the entire criminal justice system. By dint of Article 157 (6) of the Constitution, the DPP is expressly directed to make use of his discretionary powers. The call for him to apply his discretion is evidenced by the usage of the word “may” in instituting and undertaking criminal proceedings or taking over or continuing with any criminal proceedings before any court of law except the court Martial. Additionally, Article 157 (11) calls on the DPP to exercise the powers conferred to him to ensure that his decisions have full regard to public interest, interest of influencing the administration of justice and most importantly the need to prevent and avoid abuse of the legal process. The charging aspect is extremely critical because it determines whether a person will face criminal justice where he or she may lose their liberty.
Even though the Constitution guarantees the right to a trial and fair trial by extension, through the plea-bargaining process, nearly three-quarters of criminal offenders plead guilty. This process is exclusively under the mandate of the DPP. Plea bargain involves the prosecutor offering the accused person(s) an agreement to drop one or more charges if the defendant agrees to plead guilty to one or more charges. The final decision on the agreement rests with the DPP. Section 137 A-O of the Criminal Procedure Code and the Criminal Procedure (Plea Bargaining) Rules, 2018, governs plea-bargaining. The 2019 Plea Bargaining Guidelines serve to build up the plea bargaining rules and are intended to guide the best practices and application of the plea bargaining provisions within the Kenyan context to public prosecutors, as well as other prosecutors who may be granted prosecutorial powers.
It is unfortunate that prosecutors are not required to justify to anyone beyond their immediate supervisors their charging and plea-bargaining decisions. Therefore, there is no system of controls and balances to ensure that these important choices are taken judiciously and without bias. Because charging and plea-bargaining decisions are made in the privacy of prosecutors’ offices, arbitrary or biased decisions are difficult to discover.
Kenyan prosecutors enjoy wide, unfettered discretion that allows them to exercise more power and control than any other official of criminal justice in the criminal process. The decisions they make, especially in the process of charging and plea-bargaining phases, often dictate the fate of criminal cases and have monumental implications for both criminal defendants and victims of crime.
The random and arbitrary nature of the prosecution’s decision-making process and the lack of meaningful controls on the prosecutor’s power often result in the dissimilar treatment of similarly located individuals. The function of prosecution is in great need of reform. Although most prosecutors legally and ethically perform their duties, their practices and policies often produce unjust results.