The feud over the investigation – and prosecution of suspects – in the murder of Tob Cohen has exposed the simmering tensions between the Director of Public Prosecutions and the Director of Criminal Investigations.
While the two offices worked seamlessly at the beginning, and the appointment of their two heads was celebrated as fresh breath in the criminal justice system, it is evident that the two are now at loggerheads.
The friction is traced to July 2020 when DPP Noordin Haji launched the Decision to Charge Guidelines in a ceremony attended by Interior CS, former Chief Justice David Maraga, Inspector General of Police Hilary Mutyambai and Law Society of Kenya President Nelson Havi. DCI George Kinoti, who holds the ace in the work of the DPP, was conspicuously missing. It was unclear whether he he snubbed the event or was not invited.
Yet the two offices must work harmoniously if the administration of justice and rule of law is to be achieved.
While the DPP appears to be passing the blame to the DCI on the quality of investigations, it bears noting that this is only a recent and sudden development; the DPP has prosecuted and referred back so many cases before, to be investigated by the DCI. In the case of Cohen, the DPP seems to be reluctant to take up further evidence being thrown his way by the DCI. Instead he has resorted to pedantic questions about who conducted the investigations and why? Shouldn’t justice be his sole pursuit?
Two offices and officials that have worked so well in the past cannot just turn on each other without incentive or motive. We have seen several low and high profile cases investigated by the DCI and successfully prosecuted by the DPP in the recent past. Similarly, there are those that still rankle, such as the Solai dam case, which many believe was bungled by clumsy prosecution.
Then there are dozens of pending files of concluded investigations that have been submitted to the DPP but he has yet to charge anyone in court, as well as others that have been withdrawn, effectively derailing justice. Whether the ODPP is overwhelmed by the workload due to capacity issues in his office or he abusing his prosecutorial discretion is beyond us to speculate. However, it is in the public’s interest and accountability that timelines are set on the whole chain of the delivery of justice; how long an investigation takes with the DCI, the duration the DPP takes to decide to charge or refer back files, the time it takes to prosecute and determine cases in court, for Kenyans to track progress in real time. There have been instances where the DPP has indicated that he is perusing a file but indefinite determination can be demoralising to DCI investigators and breed speculation.
It begs wonder, for instance, what happened to the alleged assault incident involving Law Society of Kenya President Nelson Havi and renegade CEO Mercy Wambua since it was reported in July 2021. The case of these antagonistic officers of the court illustrates why timelines are necessary to clear the stable and turn the wheels of justice.
Similarly, as the debate rages on the implementation of the ethics threshold set in Chapter 6 of the Constitution, it is curious that dozens of corruption and other criminal cases facing governors and other elected leaders or aspirants are still pending in courts. Some of the cases have not progressed since being filed over five years. What is the prosecution doing to ensure their faster determination?
During CJ David Maraga’s tenure the Judiciary had began publishing the status of corruption cases online regularly to acquit itself of blame. It is a trend that CJ Martha Koome should sustain on top of her recent statement that all trials be concluded within three years.
It should worry everyone, when we start hearing statements and comments from respected lawyers insinuating that DCI Kinoti is fighting DPP Haji because the former comes from a minority community in northern Kenya. No, we should seek to understand what the underlying issues are and the solutions, not “politicize” issues for expediency.
The two offices will outlive both Haji and Kinoti.
The writer is an editorial consultant.
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