By NLM Writer
On May 23, 2022, the High Court at Nairobi in CONSTITUTIONAL PETITION NO. E495 OF 2021 (A.C Mrima, J) declared that under the Kenyan constitution and laws, the police cannot prefer charges against accused persons nor can they prepare a charge sheet. The power of the police begins and ends with investigations into criminal offences. They may make recommendations to the Director of Public Prosecutions (DPP) but have no power to prosecute or draft charges. The court declared that prosecution of criminal offences in Kenya must only be undertaken by lawful Prosecutors, being the DPP or other entities conferred with prosecutorial power under Article 157(12) of the constitution. On the question of preparation of charge sheets, the court was unequivocal:
“…For avoidance of doubt, the National Police Service, the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, the Anti-Counterfeit Agency or any other Government entity mandated with criminal investigation role under any written law, CANNOT DRAFT, SIGN AND/OR PRESENT any Charge Sheets in any criminal prosecution.”
The petition was filed by eight petitioners among them Humprey Kariuki Ndegwa and five of his employees. Two companies were also enjoined, including Africa Spirits Limited and WOW beverages Limited. They were charged at the Chief Magistrates court with tax evasion and a multiplicity of other offences under tax laws. They went to the High Court to challenge the constitutionality of the charges at the subordinate court. KRA was the complainant, and investigator and also undertook the prosecution of the eight accused persons on account of powers conferred on it by section 107 of the Tax Procedures Act, 2015.
The main issue for determination was whether the criminal justice system designed under Articles 50 and 157 of the Constitution allows the role of a complainant, an investigator and a prosecutor to be undertaken by a single person or entity. The High court was also called to determine Whether under Article 157(6)(a) of the Constitution a charge sheet in criminal proceedings can be instituted by the Kenya Police.
This case has now settled a matter that has been simmering since the 2010 Constitution came into operation. There have been incessant wrangles between the DPP and the DCI in relation to their respective mandates. While the Constitution is fairly straightforward on this issue, the police have been reluctant to concede prosecutorial mandate to the ODPP.
The decision has since been appealed and Appeal court has issued stay orders.
Under the old Constitution, the prosecutorial power exercised by the police was donated by the Attorney General. Article 26(5) of the 1963 Constitution empowered the AG to delegate prosecutorial power to subordinate officers. It is on account of this provision that through Legal Notice No.234 of 1972, the AG delegated power to prosecute to police officers of the rank of Inspector or above. Also, Section 33 of the Criminal Procedure Code empowers police to send arrested persons before a magistrate.
Over the years, police have exercised the power delegated to them with little or no accountability. Often, they did not inform the AG of the cases they were prosecuting on his behalf. Junior officers were authorized to conduct cases against established rules. Police also used their newfound powers to extort and blackmail members of the public.
It is sad that the police have refused to accept their place under the new constitution. Upon delivery of the High Court judgment, DCI boss George Kinoti directed his officers to stop recording statements, preferring charges and giving evidence in court. The clarification by the High Court might not resolve the turf wars because it appears the challenge between these two offices is not a lack of understanding of their respective mandates, but a clash of egos between Kinoti and Haji. The two should meet over a cup of coffee and resolve their differences for the sake of the public. (