NEW GUIDELINES

DPP to press charges only if sure of conviction

International Justice Mission country director Benson Shamalla hailed the new guidelines as streamlining the criminal prosecution process.

In Summary

• Prosecutors are required to supply all evidence they have to the suspects as a matter of right even if that weakens the prosecution's case. 

• Further, it also requires prosecutors to weigh the public interest value of a case even as they scrutinize the available evidence before mounting the charge.  

Police IG Hillary Mutyambai (partly hidden), DPP Noordin Haji and CJ David Maraga during the launch of the new prosecution guidelines on Tuesday, July 28.
WHERE'S KINOTI? Police IG Hillary Mutyambai (partly hidden), DPP Noordin Haji and CJ David Maraga during the launch of the new prosecution guidelines on Tuesday, July 28.
Image: COURTESY

Public prosecutors will only press criminal charges when they have realistic prospects of convictions.

This requirement is contained in the fresh guidelines developed by DPP Noordin Haji to prosecutors.

The guidelines on how to decide whether to charge a suspect were launched on Tuesday by Chief Justice David Maraga in a ceremony attended by Interior CS Fred Matiang’i, Police IG Hillary Mutyambai and the DPP. 

Conspicuously absent was DCI boss George Kinoti who is at odds with the DPP over instituting criminal proceedings. Last week, the High Court ruled the DCI cannot institute criminal proceedings without the consent of the DPP.

The guidelines require a prosecutor should only mount criminal charges after consulting with the investigating detective and determining the evidence available promises a realistic chance of a conviction or a plea bargain.

“The standard requirement in making the decision to charge is whether there is a reasonable prospect of conviction,” the prosecution playbook reads, adding that the available evidence is subjected to a two-stage test for evaluation.

In fact, the new guidelines encourage prosecutors to discontinue prosecution if they become certain the evidence available is not strong enough. 

"Prosecutors should not hesitate to discontinue a case where it is clear that there is no realistic prospect of conviction," the guidelines read. 

They also require the assigned prosecutor to scrutinise evidence to ensure it is admissable in court, relevant, reliable and credible. The strength of the rebuttal evidence also should be weighed.

The prosecutor is required to weigh the public interest value of a case while scrutinising evidence.

Direct approval of the DPP himself is required to prosecute cases including corruption, terrorism, sedition, treason, counterfeiting and forgeries as well as those involving an aircraft.

The new guidelines also require prosecutors handling any criminal case to share with the accused person and or their defence lawyers the incriminating evidence, even if it weakens the prosecution's case.

The Court of Appeal had ruled the prosecution has a duty to supply all material evidence to the accused as a matter of right. This should be in a timely manner to allow the defence to prepare a rebuttal. It can be at the pre-trial stage or in a continuous manner as the investigation may reveal.

“…the prosecution [are] under duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution’s case and whether or not the defence made a specific request for disclosure,” the ruling cited as part of the guidelines read.

International Justice Mission country director Benson Shamalla praised the new guidelines for streamlining the criminal prosecution process.

He said the decision to charge should be painstaking, professional, fair and guided by the law.

Shamalia cited an example of two security guards - Collins Ouma and John Atelu - who were arrested and charged with robbery with violence in 2015, offences they did not commit. However, they were held for two years as they could not raise the bail.

Little did they know that as they were languishing in remand, the real suspects were arrested by police and already charged, he said.

(Edited by R. Wamochie)