Kenya’s quest for prosecutorial reform could be said to have peaked in 2010 when the promulgation of the Constitution took away the duty of prosecution – then domiciled at the State Law office and prefected by the Attorney-General (AG), a presidential appointee – and transferred it to the independent office of the director of public prosecutions (ODPP). Pre-2010, the AG ‘s office was infamous for bringing flimsy charges against political opponents of the ruling regime and as quickly invoked the privilege of nolle prosequi any time a friend of the government found themselves on the wrong side of the law.
Public prosecutors determine which cases to prosecute. Whenever they decline to proceed with cases, mainly where police conduct falls below constitutional standards, the National Police Service must conduct itself by following the law on investigations and presenting solid evidence bases. This discretion – to accept or decline charges based on evidence – also affords the ODPP the power to drive criminal justice by pursuing criminals where evidence is overwhelming or to redress injustices by refusing to prosecute where the evidence doesn’t add up or is manifestly wrong. When the ODPP declines to prosecute – or withdraws charges upon reviewing evidence – it, ideally, sets the pace for future police investigations and police conduct.
In the wake of the ODPP’s sudden mass withdrawal of cases, Kenyans have wondered if the Director of Public Prosecutions, Noordin Hajji, wilfully used a government office to run a partisan political agenda or if he was blindsided by the powers that be, as Kidi Mwaga writes in The Standard.
A prosecutor’s job is about doing justice, not acting busy. In our reform-driven system – the aspiration to reforms anyway – if public prosecution gets it right, the rest of the criminal justice system will toe the line.
Wrongful convictions slight the concept of justice so grossly and severely, and have immeasurable consequences for exonerees, original crime victims, and families; although the premise itself is wrong, the primary reason for wrongful convictions is political — prosecutors wanting to be seen as ‘doing their job’.
In 2018, Jefferson County prosecutor (in the United States) Danny Carr, after filing a motion supporting a new trial for Toforest Johnson, who has spent almost 25 years on Death Row ‘for multiple concerns that were sufficient to make the process that led to Johnson’s conviction and sentence troubling’, noted, “A prosecutor’s duty is not merely to secure convictions, but to seek justice.”
Carr’s action is laudable because calling for a new trial creates an additional mechanism to review a possibly wrong conviction and sets a standard for the conduct of future prosecutions. More importantly, it sets the tone that public prosecutors must be unambiguously committed to constitutional standards for justice that assume innocence before guilt and that champion the correct processes to arrive at a verdict.
Hajji’s actions in the Uhuru administration, where the ODPP worked with the Directorate of Criminal Investigations (DCI) to arrest suspects on Friday – ensuring they couldn’t post bail on the weekend – and now, where he has all but gone into hibernation and abandoned ‘Kamata Kamata Fridays’, speak of a man who wanted to curry favour with the regime of the day, based on what its stand on corruption is. As our country works through a profoundly challenging time where economic crimes in a lousy economy are driving us over the edge, perceptions like these create devastating consequences.
Our justice system waxes between getting it right – particularly on constitutional matters – and wrong on many criminal ones. Where abortions of justice happen or are seen to have occurred, the ODPP must be bold and forthright in acknowledging potential mistakes to earn public trust and set solid plans to right those wrongs. Getting it right is the standard; seeing manifest wrongs righted is the second-best ideal.
Given our history of wrongful convictions, political detentions without trial, and overt miscarriages of justice, we cannot still fixate on the success of the ODPP as the number of indictments it issues or convictions it obtains – as crucial as this end is. Qualitatively, the ODPP’s prosecutorial decisions must be based on an objective, critical review of matters and evidence before it; this must form our prosecutorial culture.
A prosecutor’s job is about doing justice, not acting busy. In our reform-driven system – the aspiration to reforms anyway – if public prosecution gets it right, the rest of the criminal justice system will toe the line. (
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