Anti-graft investigator and prosecutor? No Way

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MOSES K. CHELANGA

The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be performed with an ingrained sense of dignity, seriousness and justness of judicial process – Justice Rand, Supreme Court of Canada.

A public prosecutor is a little known public officer.  For those who have a glimpse of his work including defence lawyers fear, revile and have no kind attributes to him. I have hardly heard anyone credit him for keeping criminals off our streets. When an accused is acquitted, the prosecutor carries the blame that he should not have prosecuted the case in the first place.  When he declines to prosecute for insufficiency of evidence or shoddy investigations, he is not spared either and will be branded inefficient, inept and incapable.

A prosecutor is therefore doomed when he prosecutes and doomed when he does not.  A prosecutor is he who much is expected from, yet less is known of the breadth and depth of his duty.

The passing of the buck between the Kenya Anti-Corruption Commission and the Attorney General’s office which was hitherto charged with criminal prosecutions puts in perspective the prosecutor’s role.

KACC squarely blamed the AG’s office for inaction, inefficiency and ineptness in prosecuting corruption related cases based on the investigation files handed in by KACC. The AG’s equal response to these accusations was that KACC investigation was grossly insufficient to sustain a reasonable prosecution.

The now powerful and independent office of Director of Public Prosecutions charged with criminal prosecutions under the current constitutional dispensation finds itself in the same position. This blame game informed the agitation to vest the graft body with prosecutorial powers in addition to its existing investigative role.

The prayers for prosecutorial powers are almost answered through the Ethics and Anti-Corruption Bill 2011 which establishes Ethics and Anti-Corruption Commission replacing the current KACC.

Sections 4, 8 and 12 of the Bill vest the commission with prosecutorial powers and functions in addition to its investigative function in corruption related offences. The Bill like many others may pass without amendments courtesy of the parliamentary lack of vigilance, diligence and scrutiny on the far reaching ramifications of the plethora of bills currently being blindly churned into law.

I opine that it is an anomaly to have investigative and prosecutorial powers under one roof, the new commission cannot receive complaints, undertake investigations and eventually prosecute the disclosed offence.

Under the common law criminal prosecution regime applicable in Kenya, investigative and prosecutorial functions are desirably independent, distinct and autonomous for proper administration of criminal justice.

This is premised on the fact that if a prosecutor becomes intimately involved in investigations, then he may be committed to a particular line of inquiry and lose objectivity in assessing the case, his vision may be tunnelled towards zealously defending his investigation findings and ensure conviction of an accused person by all means necessary. This tragic end flies in the face of the prosecutor’s public duty.

A prosecutor is a “Minister of Justice” who owes a duty not only to the State but also to the victim of the offence and the accused person alike. A prosecutor ought to be objective, impartial and unbiased.

In fact, a prosecutor is under a constitutional duty to fully disclose to the accused person and his defence team all the materials in his possession including unfavourable piece evidence to the prosecution’s case.

A prosecutor should objectively and painstakingly analyse and critique the investigation findings and evidence forwarded to enable him form an intention to prosecute or not. This duty cannot be fairly and justly discharged when the prosecutor and the investigator is one and the same person.

Statistically, the merger of investigative and prosecutorial functions in common law criminal prosecution regime has invariably led to miscarriage of justice. The prejudice and oppression against the citizens is far reaching given the prosecutor’s inclination of seeking conviction by all means necessary. Granting the commission prosecutorial powers shall encroach on the individual’s constitutional rights of fair hearing and fair administrative action rendering the resultant trial illegal and unconstitutional.

The framers of the constitution appreciated the importance of separating prosecutorial and investigative roles. Criminal investigations are largely carried out by the police and therefore Article 157 (4) of the Constitution empowers the DPP to instruct the Inspector General of National Police Service to undertake investigation of criminal conduct and the Inspector General shall comply with such directions.

If the framers intended that the DPP may carry on investigations in addition to his prosecutions or the Inspector General of Police prosecute criminal cases after investigations, nothing would be easier than expressly stating so.

Purposive and harmonious interpretation of this constitutional provision is that any prosecution agency ought to be independent from investigative authority.  If Parliament is to donate prosecutorial powers to anybody under Article 157 (12) of the Constitution, it should not be in addition to or together with investigative powers. They two are incompatible and cannot co-exist under one roof.

Comparatively, even Britain’s Serious Fraud Office is currently under review which may see among others stripping it of its prosecutorial powers and vesting them to the Crown Prosecution Service. This move is opposed by SFO’s Director Richard Alderman and I expect no more of the good professor PLO Lumumba.

For a long time, Kenya has had police prosecutors in our criminal prosecution system for lack of enough personnel in the State Law Office. This regime has its own imperfections such as competence and chain of command since they are employees of the Kenya Police Service, an investigative agency of state.

The proponents of vesting prosecutorial powers to the commission cannot be heard using this analogy as a perfect merger of prosecutorial and investigative power. In any event, the newly appointed DPP Keriako Tobiko has indicated that whereas there is a process of phasing out police prosecutors, the competent police prosecutors retained shall now be transferred to the DPP’s office and therefore completely removing them from the mainstream policing. This move is legally speaking well reasoned.

Passing the Ethics and Anti-Corruption Bill 2011 sans stripping the commission prosecutorial powers shall be letting loose a dangerous canon. There shall be real threat and prejudice to the constitutionally guaranteed rights and freedoms, the trigger happy commission shall without restraint arraign people in court for statistical purposes and showbiz thereby abusing court process. It shall be reversal of the gains made under the fresh air of the current constitutional dispensations.

I am not a corruption crusader and an ambassador of white collar criminality but this legal mistake must be resisted even if the heavens fall.

Dear Members of Parliament, after paying your taxes, please deal.

Chelanga is a Nairobi Lawyer and Legal Consultant , Email: [email protected]

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  • Pete

    Come on now! The same constitution in Article 157(12) says: “Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public
    Prosecutions.” That’s as clear as you demand. In fact, the same constitution grants every citizen the right to enforce the provisions of the constitution in court, which thus contemplates that citizens may act on their own if the DPP does not. In the US, a common law country, every county and state has (mostly elected) independent prosecutors independent of the US Attorney-General; so do other independent bodies like the IRS, ICE, and the FTC. What you should be advocating for is the establishment in Kenya of independent county-based prosecutors to supplement the DPP’s work.  Furthermore, you failed to mention that our new constitution does allow the DPP to take over any case, but only with the permission of the court, in order to stop the prior abuse where the AG would take over and terminate such cases indiscriminately.  No, you cannot be seeking justice but obfuscation of our gullible MPs.

  • Well thought out and reasoned piece

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