• Haji wants alternatives to prosecution given priority since a number of cases can be addressed outside the court.
• Haji said it is the responsibility of the investigator to investigate offences, and the responsibility of the DPP to ensure the right person is charged with the correct offence.
Director of public prosecutions Noordin Haji wants all weak cases out of court to maintain confidence in the justice system.
Haji wants alternatives to prosecution given priority in the new guidelines.
The DPP said suspects with cases which do not have sufficient evidence will no longer be arraigned in courts.
He stood his ground that the DPP will be writing to the Inspector General of Police when reaching out to the National Police Service.
Haji said cases will be vetted in a pretrial conference between investigators and prosecutors to ensure they merit progress before suspects are arraigned in court.
"It is the responsibility of the investigator to investigate offences, and the responsibility of the DPP to ensure the right person is charged with the correct offence and that cases are withdrawn when it becomes clear there is no realistic prospect of conviction,” Haji said.
He said the 2019 guidelines are meant to protect Kenyans and ensure transparency in the corridors of justice.
The guidelines cover prosecutors conduct, powers, roles, independence, duties of disclosure, case review and general guidance on discontinuance.
Others are plea bargaining, diversion, appeal and revision.
“Whilst the roles of the investigator and prosecutor are complementary, ultimately the decision to charge rests with the prosecutor, who must assess whether it is appropriate and what charges to prefer for a court to consider,” he said.
The guidelines will ensure cases are treated fairly, equally, preferring the correct charges backed by evidence, support early pleas, protect vulnerable witnesses, push for alternatives to prosecution and timely case preparation.
“It is the duty of a prosecutor to ensure that the right person is prosecuted for the right offence, properly applying the law and ensuring that relevant evidence is submitted before the court and that disclosure obligation is complied with,” he said
Haji said Prosecutors will guide investigations but must remain objective and impartial when evaluating evidence at the time of making a decision to charge.
Investigators will ensure they have police and witness statements, expert reports, digital and electronic evidence, documents, Medical reports, Physical evidence and investigation diary before prosecution begins.
Other requirements are correspondences, exculpatory evidence, a brief summary of the facts of the case and identification of the suspect.
“Prosecutors must also act in the interest of justice and not solely for the purpose of obtaining a conviction,” Haji said.
Prosecution decision will be in writing and all cases reviewed upon conclusion for future reference.
“Where disagreement arises in respect to advice or directives given by a prosecutor, the prosecutor shall prepare a detailed brief on the issues for determination by the immediate supervisor who shall then seek to resolve the dispute in the spirit of interagency collaboration and cooperation,” the guidelines said.
Prosecutors will not be allowed to act in a case in which their action or decision is the subject of litigation.
They must declare to their supervisors any potential conflict of interests and report any attempt to coerce them.
They must keep records of all matters and ensure court attendance is recorded in sufficient detail on the prosecution file.
Prosecutors must maintain an inventory of all the documents presented in the investigation file.
“If a prosecutor decides not to charge, reasons shall be given in writing and where appropriate the Investigating Officer and the victim shall be consulted,” the guidelines read in part.
Unsound mind suspects will not be prosecuted through the ordinary criminal justice system.
Special care will be taken to ensure some details will not be made public to harm sources of information among them ongoing investigations, international relations or national security.
Prosecutors will determine the charges for which the accused takes plea, taking into consideration the proposed charges by the investigator.
“Prosecutor charges will reflect the seriousness and extent of the offence, give the court adequate powers to sentence and allow suitable ancillary orders to be made in appropriate cases,” the guideline said.
The bail of anyone who fails to honour the court will be forfeited to the government.
Prosecutors will overturn decisions not to prosecute or to deal with the case by way of out-of-court disposal to maintain confidence in the criminal justice system.
Investigating officers will disclose offence(s), elements of each of those offences, most appropriate charges, and requirements governing the admissibility of evidence, further evidence to be obtained and whether documentary evidence is required when reaching out to prosecutors for help.
Others are whether the evidence is admissible and public interest considerations or bars that may affect prosecution.