UN prober wants Kenya AG powers clipped

May 28, 2009 12:00 am

, NAIROBI, Kenya, May 28 – A comprehensive report released by the Special UN Rapporteur on Extra-judicial killings Prof Philip Alston has recommended that the Attorney General’s (AG) Office be stripped of its prosecutorial powers.

Prof Alston said the AG’s office is vested with immense control over prosecutorial powers, which needs to be transferred to an independent department under the Public Prosecutions office.

He also maintains the need to have AG Amos Wako resign to pave way for both institutional reforms in his office.

“The Attorney-General should resign. This is necessary to restore public trust in the office, and to end its role in promoting impunity,” he said in an advance report dated May 26.

“Political control over prosecutions should be eliminated and the prosecutorial powers currently held by the Attorney-General should be vested in an independent Department of Public Prosecutions,” the report sent by Prof Alston’s Senior Advisor Sarah Knuckey states.

In future, the report adds, prosecutions should be undertaken by a constitutionally entrenched and independent Department of Public Prosecutions.

“The powers to prosecute and to intervene in prosecutions should not be held by a political office-holder,” Prof Alston concludes.

Kenya’s current AG is the longest-serving Constitutional office holder having been in office since 1991.

In his report, Prof Alston said that the AG had failed to institute reforms in his department yet he “has overseen, for nearly two decades, a system that clearly does not work.”

While the AG has the constitutional power to ‘require’ the Police Commissioner to investigate any matter relating to an alleged offence, Prof Alston said, he has resorted to engaging in blame games.

“He is all too aware of the grave deficiencies in police investigations. But instead of using his constitutional powers to force individual investigations and to promote essential institutional reforms, letters simply go back and forth for years, with cases neither investigated sufficiently, nor prosecuted,” Prof Alston states.

Post Election Violence

He particularly accuses the AG for what he terms ‘repeated failure to prosecute any senior officials for their role in large-scale election violence over a period of many years’.

“This has led to a complete loss of faith in the commitment of his office to prosecute those in Government with responsibility for crimes,” the report adds.

In fact, the report reads, his unrelenting failure to prosecute any senior officials implicated in extra-judicial executions renders him not just complicit in, but absolutely indispensable to, a system which has institutionalised impunity in Kenya.

The Judiciary

Prof Alston has also taken issue with Kenya’s Judiciary system whose Judges he thinks should be replaced.

“The judiciary in Kenya is an obstacle in the path to a well-functioning criminal justice system. Its central problems are crony opaque appointments, and extraordinary levels of corruption,” he states.

His report calls for a radical surgery in the Judiciary to rid the department of most of the existing judges and replace them with competent and non-corrupt appointees.

As outlined in his initial preliminary report released in Kenya in February, Prof Alston called on President Mwai Kibaki to sack Police Commissioner Major General Mohammed Hussein Ali for “overseeing a police force that operates with impunity and regularly engages in widespread extra-judicial killings.”


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