Setting standards for prosecution and investigation
By Ndung’u Wainaina and Soyinka Lempaa
The constitutional architecture of Kenya has set clear principles on separation of powers between the legislature, the executive and the judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.
Under the constitution of Kenya 2010, the traditional Montesquieuian principles of separation of powers was enhanced. Each arm of the state had countervailing powers to check on the other as pure separation of powers remains legal fiction. The doctrine of separation of powers is thus, by implication, a basic principle of Kenya’s constitutional order. The doctrine is to be found in the structure and functions of the different organs of state and their respective interdependence or dependence. The separation performs the service of preventing too much power being accumulated in one institution.
Within this constructional context, the purpose of this article to try and delineate the respective powers and mandates of the office of the Director of Public Prosecutions and that of the Director of Criminal Investigation, which is an office within the National Police Service.
The Constitution of Kenya 2010 ushered in a new dawn and a paradigm shift in management and governance on almost all sectors of public life. There was an attempt to breathe life to all government departments that hitherto did not have empirical accountable mechanisms to the citizenry. Some of the offices within the executive arm of the government were pervasive or ubiquitous, rendering concurrent offices within or without the executive lame-duck.
Prosecutors must assist the court to arrive at a just verdict, and not simply secure a conviction at all cost.
The phenomenon of serious and organized crime is one that poses a real and imminent threat to our democracy and economy. The ever increasing interconnectedness and dynamism of the world we occupy means that organised crime is more sophisticated than ever in the manner it operates. It is therefore critical to review and reflect upon the roles that the national investigatory agency and public prosecution play in upholding the rule of law, protecting our constitution, enhancing the depth and quality of our democracy and in fulfilling our vision of a just society where our people can live in safety and security, free from the fear of crime.
One investigatory agency in Africa that achieved a success high rate of almost 96 percent in investigations and convictions of high level crimes is the Directorate of Special Operations of South Africa, popularly known as ‘Scorpions’. Why was it so successful?
Lessons from SA
In June 1999, then South African President Thabo Mbeki announced that ‘a special and adequately staffed and equipped investigative unit would be established urgently, to deal with all national priority crime, including police corruption’. In September 1999, the Directorate of Special Operations, popularly known as ‘Scorpions’, was set up. The formation of the Scorpions coincided with the signing of the International Convention Against Transnational Organised Crime in 2000.
One of the motivating factors behind the creation of the Scorpions appeared to be to raise public confidence in the ability of the government to fight crime. The Directorate had the mandate to investigate particularly serious organised crime, with the objective of prosecuting such offences. The idea was to create an FBI-like law enforcement agency that would drastically improve the ability of the state to fight organised crime and high profile corruption. This initiative came as a consequence of the alarmingly high levels of serious and violent crime in South Africa.
The DSO had both a legislative and operational mandate. The broad legislative mandate of the DSO was to ‘do anything necessary for criminal proceedings on offences committed in an organised fashion, or relating to any other offences’. Such a broad mandate was intended to enable the Scorpions to investigate almost any matter, and to avoid jurisdiction battles between itself and the South Africa Police Service in regard to policing and investigative powers.
The Directorate had the power to investigate, gather, keep and analyse information, and institute criminal proceedings related to offences committed in an organised fashion. The Directorate had the powers to investigate and carry out any functions incidental to investigations, gather, keep and analyse information and, where appropriate, institute criminal proceedings and carry out any necessary functions necessary for instituting criminal proceedings.
The prosecutor can review, advice and direct the investigator, but be, at all times, mindful of the fact that he or she remains an officer of the court with certain ethical obligations…
The DSO was a multidisciplinary agency that investigated and prosecuted organised crime and corruption. Its staff, who were freshly recruited and relatively youthful, consisted of some of the best police, financial, forensic and intelligence experts in the country. The methodology used by the DSO was based on the troika principle, which integrated crime analysis and intelligence, investigation and prosecution. A DSO investigative team consisted of investigators, prosecutors and analysts who collected intelligence information. After completing an investigation, investigators would refer a case to court and the prosecutor who was involved in the initial stage of the investigation would lead the prosecution.
This approach was highly criticised because it was believed that the involvement of prosecutors who were part of the investigation team compromised the separation of powers. The South African Constitution prescribes the separation of powers. The Scorpions recorded major success in high-profile cases with rate of about 96 percent convictions in recovering illicitly acquired wealth and property. Public confidence grew in its ability to impact on organised crime but politically, Scorpions were demonized and finally disbanded.
This leads us to reflect on the Kenyan scenario on the relationship between the investigation of crime and subsequent prosecution.
While the core mandate of National Intelligence Service (NIS) is to collect information and intelligence of strategic interest to the country, the Directorate of Criminal Investigation (DCI) of the National Police Service is the hub agency responsible for collecting criminal intelligence information, investigating crime and penetrating crime circles. The Kenya Police Service and Administration Police Service officers perform the basic law and order functions, including securing scenes of crime from being tampered with.
DCI is the agency with the core duty of providing leadership on tackling crime and working very closely with other criminal justice institutions like office of Director of Public Prosecutions and Judiciary. Therefore, if Kenyans feel insecure and unsafe, the hard questions should be directed towards the DCI, which is at the core of protecting the country from crime, whatever its nature.
From the onset, Kenya needs to fundamentally restructure the DCI to make it more legally empowered, well resourced, and with adequate personnel, who are professionally and sophisticatedly trained to investigate and pre-empt crime.
Operational/structural independence
Kenyans across the divide agree that official criminality, abuse of office and endemic corruption are rife and should be tamed before they reach terminal levels. They also agree on the need for a stronger law enforcement entity that enjoys adequate structural and operational independence. Top investigation agencies such as the famous Federal Bureau of Investigations (FBI) in the United States and South Africa’s former agency Scorpions succeed for reasons such as independence and autonomy, stringent meritorious personnel recruitment, strict internal accountability and leadership with integrity and credibility. Also, they have internal prosecutors who do due diligence on investigations and evidence collection before the case file is sent to the prosecuting authority.
Due to the fundamental importance of its mandate, the DCI needs institutional independence. Interference by political and civil bureaucracies has been evident, leading to loss of faith in the institution by Kenyans. With devolution, it is only logical that the DCI devolves certain aspects of its functions to the counties to tackle local-context crimes, which arms will only seek reinforcement from the national office on a need basis. Even with its specialties, the DCI needs expertise in terms of prosecution preparedness. For instance, it needs to have its own internal prosecutors to analyse files and advise on the need for further investigations, to avoid the bungling of cases that we so often witness.
These untrammelled powers and discretion to direct and conduct prosecution by the ODPP should not bar the office of the Inspector General of Police from filing pleas in court…
The DCI must undergo rigorous transformation to live up to Kenyans’ expectations. It must be legally empowered to pursue powerful individuals without fear, favour or prejudice. Structural, operational, institutional and financial independence is the backbone of appropriate performance by an institution. Not only does it shield it from meddling, but also enables it to perform well.
It is of utmost importance to interrogate the relationship between the National Police Service and the Directorate of the Public Prosecution as currently constituted. In the old constitution, police officers were both investigators and prosecutors. This technically meant that they were under the direction and control of the Attorney General. Investigators had no structural, operational, functional and financial independence to attend effectively to their call of office. Investigations faced very high risk of political influence and interference. This is the ill that the Constitution of Kenya 2010 sought to address.
Serve the interests of justice
The object of a criminal investigations and prosecution is not to secure a conviction – it is to serve the interests of justice. The prosecutorial role is a role that is distinctive from investigation, and the great contribution that the prosecutor brings to the investigation is that of professional detachment and objectivity.
Whereas the Constitution does not provide that the prevention, combating or investigating of crime is the exclusive function of any single institution, the office of director of public prosecutions is surely not part of the investigatory agencies.
Traditionally, prosecutors do not become involved in criminal investigations. The functions and professional duties of prosecutors and investigators have traditionally been separate. The ethical duty of a prosecutor, as an officer of the court, is primarily to the court – to assist the court in making a just decision.
The prosecution process is procedural and some critical junctures do not require the criminal standard of proof that is beyond
reasonable doubt”
Prosecutors must assist the court to arrive at a just verdict, and not simply secure a conviction at all cost. This includes, for example, divulging possibly exculpatory evidence to the court where it exists, or assisting in putting the version of an unrepresented accused before court.
The integration or close co-operation between the investigator and prosecutor should not be equated with role confusion. The distinction between the role of the investigator and prosecutor should not become blurred. The investigator is still the best person to perform the function of collecting the evidence. The prosecutor can review, advice and direct the investigator, but be, at all times, mindful of the fact that he or she remains an officer of the court with certain ethical obligations. It is important that the prosecutor maintain a healthy distance from the actual gathering of evidence in order to ensure that these ethical obligations are not compromised. The prosecutor is there to guide the investigation not to do the job of the investigator.
The prosecutor has to, at all times, be wary not to end up as a fact witness. There may well be cases where a prosecutor has become so steeped in the investigation that he/she should not prosecute that particular criminal case. By and large, this situation can be avoided and care should be taken to do so, failure to do so will result in the prosecutor being called as a witness and therefore precluded from conducting the prosecution, which would then defeat the purpose of assigning the prosecutor the case from the onset.
Prosecutorial involvement in investigation
The involvement of the prosecution in the investigation of crime has historically tended to occur where there is a suspect, but admissible evidence (as opposed to intelligence) is required to support a criminal conviction. Prosecutorial involvement in investigations tends to occur in situations where identified persons appear to be involved in crime or appear successfully to have avoided being implicated in a crime, and although suspicion surrounds them, admissible evidence has not yet been obtained.
Article 157 (4) is of the Constitution 2010 coached in similar terms with section 26 (4) of the old constitution; it states, “The Director of Public Prosecutions shall have 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.” This power, unlike in the old constitution, is well circumscribed both in the Constitution 2010, and in the Act, and should not be exercised to micro manage and undermine the investigatory power and competence of the office of the Director of Criminal Investigations. The ODPP must not confuse its to role to that of oversight or of acting as prefect to the work of police.
The police function is a critical and most visible cog to the criminal justice system. The police system mirrors the criminal justice system of any state and so it is essential that this agency of the State delivers to its optimal potential. In an attempt to have a departure from the past, the Constitution and National Police Service Act 2011 strive for the crucial tripartite standards of accountability, transparency and equity in policing practices in Kenya.
As gatekeepers to the criminal justice system, prosecutors are its most powerful officials. Constructive oversight can help enhance performance and public confidence”
The police reforms provided in the Constitution are set to achieve three objectives, namely: enforce functional autonomy of security and law enforcement agencies for operational effectiveness and professionalism; strengthen civilian oversight accountability over security agencies and; address the working and living conditions of the security personnel and their dependents. The Constitution does not respect traditional security practices. It sets new paradigms and operational procedures.
In its modalities of collecting evidence and powers under Section 35 of the National Police Service Act, the law allows investigating agency to probe any matter relating to an offence or a suspected offence by means of an ‘enquiry’ (preparatory investigation). Moreover, the investigating agency in such an enquiry (preparatory investigation) can call any person to give evidence, obtain any document, seize any computer (as evidence), and enter and search any premises (with reference to the applicable sections for warrants and searches in the law) in connection with the alleged offence suspected commissioning of any specified offences. On the basis of such an enquiry a full-blown criminal investigation can then be launched.
This points to the fact that a ‘new’ kind of investigation process has been developed within the Directorate that specifically emphasizes the use of information and intelligence in directing investigations which include special investigators and intelligence gatherers and analysts, who all work together to ensure that such a focused investigation yields enough evidence to obtain a conviction. This reduces the probability that evidence or possible leads for further investigation will be overlooked, as may be the case if there is a single detective leading an investigation.
The office of the Director of public Prosecutions, for instance, should at all times refer the decision to investigate to the office of the Director of Criminal Investigations. Requiring him to seek concurrence in all criminal files would be acting ultra vires to powers donated to him by the constitution. The office of the Director of public Prosecution is well cushioned by both substantive and procedural law in the conduct of the prosecution in court. Other than the power and wide discretion to amend the charge sheet at any stage of trial, the DPP has powers to discontinue the case if in their opinion, the evidence before the court is not sufficient.
These untrammelled powers and discretion to direct and conduct prosecution by the ODPP should not bar the office of the Inspector General of Police, through DCI, from filing pleas in court. Were this to happen, the functional mandate of the office of the Director General will be emasculated, in the sense that the ODPP or officers subordinate to the office holder will stifle or restrain crime detection and investigation even before it is complete. This will be in the pretext that they do not master the prosecution standards. The prosecution process is procedural and some critical junctures do not require the criminal standard of proof that is beyond
reasonable doubt.
When the police apply to hold a suspect for sometimes pending investigation, the standard of proof they require at this juncture is on a balance of probability i.e. evidence to show existence of reasons to believe. The Police only require to prove to the judicial officer or the judge that they have reasonable suspicion that the person in court or their custody is the probable suspect and given time they will present to court the evidence required to prove “beyond reasonable doubt”, as some of the crimes do not require such standards of proof at inception, and that were such a case to be terminated at that point, the person of interest will proceed to interfere with the investigation rendering a well-intended crime punishment dissipate for sheer misunderstanding between the Police and the ODPP, or just misapprehension of roles and mandates.
Thus when the DCI goes to court with a suspect that requires to be held within the rigors of grand law, the DCI must build a preliminary evidence threshold, that is on a balance of probability the persons under custody is the prime suspects, before, the trial, where the standard of proof is beyond reasonable doubt would be called for.
The office of the Director of Public Prosecution must not be allowed to twist unequivocal provisions of the law to suit temporary convenience. At a cursory glance at its role as provided by the law, one is not required to go beyond the golden rule of interpretation to understand that mandate.
From the above constitutional and legal provisions, it is apparent that the ODPP is still operating within the confines of Section 26 of the old constitution where his office was domiciled and controlled by the office of the Attorney General – when the AG was part of the Executive, and called shots on all matters of investigation and prosecution of crime and therefore had the police under his control.
The office of the ODPP is still trapped in the nostalgia of such powers under the pretext or disguise of much circumscribed provisions of Article 157 (4) of the Constitution and Sections 35 (6) of the National Police Service Act. The office must start operating within the new constitution.
Institutional and operational separation of agencies carrying out investigative and prosecutorial functions is of crucial importance in limiting administrative and material resources of the State in the investigation process. In order to achieve this, it is important for the legislation to clearly define statuses of prosecutor and investigator, their institutional objectives and establish specific structural barriers between them – mechanisms of checking and verification. It is important to clarify in law how distant an investigator is from prosecutor in the investigative process, and address what problems can be created in everyday practice by a prosecutor’s active role in the process.
The prosecutor should not have a role whatsoever in the launching of investigation or involving in entirely investigation process, or in the specific investigative actions; prosecutors should and must not obtain the status of an investigator. Prosecutor cannot cherry-pick who to prosecute or not depending on their status in society. The Scorpions’ success as illustrated earlier explains why South Africans gave them full unequivocal support.
Finally, as gatekeepers to the criminal justice system, prosecutors are its most powerful officials. Their considerable discretion – about whom to charge and for which crimes – affects the lives and fate of thousands of criminal suspects, and the safety and security of all citizens. Yet, no dedicated oversight and accountability mechanism scrutinizes the activities of the country’s prosecutors.
Constructive oversight can assist prosecution to enhance both its performance and public confidence in its work. It is striking that while, in many jurisdictions, dedicated oversight and accountability mechanisms to scrutinize the work and performance of the police are in place, such mechanisms do not exist for our prosecution services. Effective prosecutorial accountability contributes to the empowerment of public trust and confidence. (
— Wainaina is Executive Director, international Centre for Policy and Conflict, and Lempaa is Human Rights Lawyer.
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