Following the promulgation of the Constitution 2010, the Office of Director of Public Prosecution (ODPP) was officially delinked from the State Law Office in July 2011.
The position and Office of Director of Public Prosecutions (ODPP) is created by Article 157(1) of the Constitution with wide ranging powers of prosecution. Article 157 and 158 of the Constitution that gives authority to the Director of Public Prosecution (DPP) to control prosecutions in the Republic of Kenya has been given effect by the ODPP Act No. 2 of 2013 which came into effect on 16th January, 2013. The Act provides for powers, functions, accountability and reporting mechanism of the DPP among other functions.
Pursuant to Article 157(4) of the Constitution, the DPP has 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. The DPP may 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; take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and discontinue at any stage before judgment is delivered, any criminal proceedings instituted by the DPP or taken over by the DPP subject to the permission of the court.
The powers of the DPP may be exercised in person or by subordinate officers acting in accordance with general or special instructions and in the exercise of these powers or functions, the DPP shall not be under the direction or control of any person or authority so long as the DPP has regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
The power to decide whether a particular case should be forwarded to courts or filtered out of the system is regarded as the central function (the sine qua non) of every prosecuting authority. The ODPP has been steadily enhancing its staffing capacity to match the Judiciary strength from an initial establishment of 93 legal staff to the current 161 legal staff against an establishment of 927.
All the 304 police prosecutors in the country have been audited to determine their experience, competence and suitability and have been individually gazetted. A multi-agency team has already finalized a report on modalities for their absorption in to ODPP.