On November 19, 2015, the National Civil Society Congress awarded one of its two inaugural Outstanding Public Service Awards to the Office of the Director of Public Prosecutions as an institution, and another to its director, Keriako Tobiko, as the head of the institution.
The OPSA is an initiative of the civil society that seeks to promote constitutionalism and democratic transformation by commending genuine efforts made by public offices and officers instead of continually condemning state and public institutions. Put differently, OPSA aims to consolidate the democratic dividends that Kenyans have fought for and earned in our long and tortuous democratisation processes.
The 2010 Constitution was a turning point for constitutionalism, rule of law and social justice. After years of institutional decay, the new dispensation provides the national values and principles of governance articulated in Article 10, which provide a framework for rebirth of public institutions.
It is an attempt to put into practice provisions and objectives of the Public Benefit Organisations Act. The law aims to facilitate constructive and principled collaboration between civil society organisations, the state, business, development partners and other actors to advance the public interest. The OPSA is, therefore, a bold step by civil society to establish mechanisms for collaboration with national and county governments in formulating and implementing public policies and programmes.
All public institutions — commissions and independent agencies — are eligible for nomination for the awards. Hence, the nomination of the ODPP, the Commission on Administrative Justice (Ombudsman), the Office of the Auditor General, the defunct Commission for the Implementation of the Constitution, the Office of the Controller of Budget, the Office of the Attorney General and the Department of Justice, are among other eligible state institutions.
Yet, as soon as the list of nominees was published online, the NCSC was bombarded with protests against the inclusion of the ODPP. Those who argued against the inclusion of ODPP with such finality did not take into account the criteria for the award, which was an objective and rigorous process not influenced only by perception, which in most cases is subjective.
While some of the state-nominated agencies responded to the invitation to submit their achievements, others shied away. Among the enthusiastic ones were the CAJ, then under Otiende Amollo, Tobiko’s ODPP, Auditor General Edward Ouko, and the Office of the COB under Agnes Odhiambo.
The Office of the AG and the CIC did not respond, confirming that suspicion between civil society and the state and its agencies still runs deep. When the awards panel settled down to scrutinise the nominations and supporting documents, the ODPP emerged tops, surpassing the CAJ, which came second, and the Auditor General, which ranked third.
The ODPP is the only nominated institution that had devolved its structures to all the 47 counties. This not only made justice more accessible but also ensured there would be public participation in the criminal justice system through court users’ committees.
But the ODPP did not make these achievements without challenges. As Kenyans still remember, the ODPP is still awaiting reports from the EACC and the DCI on individual staff members and commissioners of the IEBC who may have contributed to bungling of the August 8, 2017, presidential election. This led to its annulment by the Supreme Court.
Such are the obstacles the ODPP faces from other state agencies in the criminal justice system, earning the ODPP the negative public perception that the NCSC had to deal with during the awards process. One can only hope that recent changes at the DCI will make such processes more efficient and attainable.
Coordinator, National Civil Society Congress and Presiding Convener of the Civil Society Reference Group