Prosecutors as gatekeepers of the criminal justice system

Prosecutors as gatekeepers of the criminal justice system

By Payton Mathau

This Court observes that Article 157 of the Constitution does not mean that the Director of Public Prosecution is merely a conveyor belt for all investigations and findings placed before him. The office of the DPP is duty-bound to interrogate the investigations presented to it and ensure that they comply and meet the Constitutional threshold” – Hon. Justice E. K. O. Ogola in the case of Hassan Ali Joho v Inspector-General of Police & 3 others [2017] eKLR. 

Recently, there have been reports accusing the prosecutorial arm of the criminal justice system of overstepping its constitutional mandate. The accusations of overstepping the mandate by prosecutors are born apparent lack of appreciation of basic principles of prosecution and a clear misrepresentation of various law provisions, including the Constitution. Is the Office of the Director of Public Prosecutions a conveyor belt? 

The recent decision by Hon. Justice Weldon Korir in Okiya Omtatah Okoiti v DPP Constitution Petition E266 of 2020 has once again restated the position enshrined in the Constitution that the power to institute and prosecute criminal cases solely rests on the Director of Public Prosecutions (DPP). 

Prosecution is one of the core components of the criminal justice chain. In Kenya, the role of prosecution is entrusted to the Office of the Director of Public Prosecutions (ODPP), as enshrined under Article 157. The primary responsibility of the ODPP is provided for under Article 157(6)(a), which states, “(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may — (a) institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed.” 

Further, Article 157(10) provides that the DPP does not require the consent of any person or authority for the commencement of criminal proceedings. In the exercise of its powers or functions, the DPP shall not be under the direction or control of any person or authority. 

To operationalize the provisions of Article 157 of the Constitution, Parliament enacted the Office of the Director of Public Prosecutions Act (hereinafter referred to as the ODPP Act). Section 23 of the ODPP Act provides for control of prosecutions in the Country. Section 23(1) of the ODPP Act expressly provides, “(1) Notwithstanding the provisions of any other law, it shall be the function of the Director to – (a) decide to prosecute or not to prosecute concerning an offence; (b) institute, conduct and control prosecutions for any offence; (c) carry out any necessary functions incidental to instituting and conducting such criminal prosecutions; and (d) take over and conduct prosecutions for an offence brought by any person or authority, with the consent of that person or authority.” 

In the case of Thuita Mwangi & 2 others V Ethics & anti-Corruption Commission & 3 Others (2013), where the Court held, “The State’s prosecutorial powers are vested in the DPP under Article 157 of the Constitution….” However, in exercising his powers, the DPP is bound by the provisions of Article 157(11) that require the DPP to have regard for public interest, the interest of the administration of justice, and the need to prevent and avoid abuse of the legal process. 

As already stated, one of the main roles of ODPP is to institute criminal proceedings, which is dependent on the work of various investigative agencies. The Investigative agencies must adhere to the various provisions of the Constitution of the Republic. 

To institute criminal prosecutions, the ODPP depends on various investigative agencies within the Country. Section 2(1) of the ODPP Act defines an Investigative Agency as “in relation to public prosecutions means the National Police Service, Ethics and Anti-Corruption Commission, Kenya National Commission on Human Rights, Commission on Administration of Justice, Kenya Revenue Authority, Anti-Counterfeit Agency or any other Government entity mandated with criminal investigation role under any written law.” 

Once an investigative agency submits its findings, the ODPP must peruse the file based on the criteria. Section 4 of the ODPP Act provides the guiding principles that must be adhered to in whatever decision the ODPP takes. These include; the rules of natural justice, the need to serve the cause of justice, prevent abuse of the legal process, and public interest, among others. 

Reference has been made to Section 89 of the Criminal Procedure Code as an authority of giving Police or a Magistrate to draw up a charge sheet. It should be borne in mind that the Criminal Procedure Code commencement date was 1st August 1930, and there has been no detailed review of the Code to adhere to the Constitution promulgated in 2010. Section 89 of the Code does not meet the Constitutional threshold; therefore, an investigative agency, including the police, cannot be seen to rely on the section. 

In interpreting the provisions of Section 89 of the Criminal Procedure Code, Hon. Lady Justice G.W. Ngenye-Macharia, in the case of Director of Public Prosecutions v Kuldip Madan & another [2019] eKLR, stated that “23. Before immersing into the determination of the main question, it is important to duplicate the entire Section 89… 28. Section 89 falls within a part of the Criminal Procedure Code titled; ‘Institution of Proceedings,’ under the subheading ‘Making a complaint. Thus, the sections in this part are concerned with the institution of proceedings through making a complaint…34. Having observed Section 89 of the Criminal Procedure Code, I feel that courts should not continue to apply this piece of legislation to reject charges. The provision no longer speaks to the current procedure for bringing charges to Court. It no longer retains the meaning it had when Parliament legislated it. 

In Geoffrey Kaaria Kinoti & 7 Ors V The Chief Magistrates Court Milimani Law Courts & 4 Ors Constitution Petition No. E495 of 2021, Hon. Justice Mrima held: 

“191. Whereas the provisions are in place, it must be remembered in the first instance that the CPC is pre-2010 legislation. Before the promulgation of the Constitution in 2010, the National Police Service had all the powers to conduct investigations into criminal culpability, make decisions to charge, draft charges, stamp them, arrest the suspects and present them to Court. That was the permissible law then. 192. However, on the dawn of the Constitution in 2010, there was a paradigm shift regarding how the criminal justice system would operate in Kenya. Of paramount importance is that all laws that were then in place were to be brought forthwith into conformity with the Constitution. 193. Section 7(1) of the Sixth Schedule to the Constitution provided as follows: 

7. Existing laws 

(1) All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications, and exceptions necessary to bring it into conformity with this Constitution. 

194. Further, the provisions of the CPC are subordinate to the Constitution. Article 2(4) of the Constitution states that any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. 

195. As the provisions of the CPC run contra the new constitutional dispensation, they cannot stand in the face of the Constitution. … 

200. Based on the foregoing, this Court finds and holds that it is constitutionally impermissible for the National Police Service to either draft any charge sheets or sign them. That is part of the prosecutorial duties of the prosecutor and, in the present case, the DPP.” 

Prosecutors must ensure that they play an active role in criminal justice. The prosecution should not play a passive role and prosecute every matter presented by an investigative agency that does not meet the threshold. A prosecutor must therefore ensure that a file submitted by an investigative agency for prosecution meets the required threshold. One of the cardinal duties of a prosecutor is to ensure proper facts are placed before Court for adjudication. 

The ODPP works in coordination and cooperation with the various investigative agencies. The entire criminal justice system is like a chain that should not be broken; it is a complementary relationship. Article 157(4) of the Constitution provides that “(4) The Director of Public Prosecutions shall have the power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct, and the Inspector-General shall comply with any such direction.” 

Article 243 of the Constitution provides for establishing the National Police Service. Pursuant to the provisions of Article 243(4), Parliament enacted the National Police Service Act. The Preamble to the Act states, “An Act of Parliament to give effect to Articles 243, 244 and 245 of the Constitution; to provide for the operations of the National Police Service; and for connected purposes.” Section 10 of the Act provides for the Inspector General of Police functions, which do not include prosecutorial powers. Section 51 of the Act requires a Police Officer to investigate a crime. As already pointed out, the findings of the investigations are forwarded to the ODPP for perusal and advice. 

Section 35(h) of the National Police Service Act provides that one of the roles of the Directorate of Criminal Investigations (DCI) is “execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution.” 

To execute its mandate, the National Police Service must work in harmony with the ODPP. Some situations may arise that require guidance from the ODPP to various investigative agencies. This is permissible under the ODPP Act Section 5(3) provisions that allow the DPP to “assign an officer subordinate to him to assist or guide in the investigation of a crime and every investigative Agency shall give effect to that direction.” This does not mean that the ODPP is an investigative agency. It means that an Investigative Agency must work closely and in harmony with the ODPP to ensure that all the angles in an investigation are properly covered. 

Every criminal investigation aims to find the person guilty of a criminal offence. All criminal offences require that the elements of each offence must be thoroughly investigated. Therefore, by assisting or guiding, the ODPP’s role is to ensure that all the ingredients/elements of a particular offence are fully investigated. The ODPP must ensure that all the necessary evidence is gathered and no loopholes are left. 

Once investigations are completed, the same is submitted to the prosecutorial agency to peruse the same and give appropriate direction. Appropriate direction may include no further police action is required, to investigate further certain critical areas, or direct the matter to diversion, among others. Before the 2010 Constitution, the Police Force was the investigator and prosecutor in all lower court matters. The Prosecutorial office was a department under the Office of the Attorney General. ODPP was delinked from the Office of the Attorney General after the promulgation of the new Constitution. The ODPP is now present in the forty-seven Counties and several sub-counties. 

The Constitution of Kenya 2010 introduced a system of checks and balances. An investigator cannot be a prosecutor at the same time. This fulfils the old saying that a person cannot be a judge in his own case. Previously, police were answerable to the Public Service Commission and are currently answerable to the National Police Service Commission. How then does one expect the police to prosecute a matter under the preserve of the ODPP, which is an independent arm per Article 157 of the Constitution? 

Successful prosecution requires thorough investigations using modern investigative techniques. This will add a positive aspect to the entire criminal justice chain and improve the success of criminal prosecutions and investigations. All the players in the chain must ensure they play their active role and work seamlessly. 

The United Nations Guidelines on the Role of Prosecutors emphasize the need for prosecutors to keep in mind public interest and the interests and concerns of victims when carrying out their duties. Two critical principles mainly guide the decision to prosecute: evidentiary and public interest considerations. 

The decision to prosecute is one of the most important aspects of the criminal justice chain. The decision to prosecute is a weighty one and cannot be left to the hands of an investigator. The prosecutor bears the ultimate responsibility in deciding to prosecute. The system of checks and balances must be maintained at all times to ensure fairness. 

It cannot be disputed that the fruits of a forbidden tree cannot withstand the test of fairness; this, therefore, means we must ensure a proper balance is struck between investigations and prosecution, the ultimate goal being to ensure justice is done and seen to be done.  (

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