EXPLAINER

EXPLAINER: What it takes to remove DPP from office

Four parties have filed petitions to have DPP Haji removed. One dropped petition.

In Summary

•“The removal of DPP when he is handling the so called high profile cases extinguishes public confidence in his/her ability to execute functions of the office."

•Kulundu reiterated that it is in the best interest that the DPP serves his full term to accomplish what he has set to accomplish.

Director of Public Prosecutions Noordin Haji at a past event.
Director of Public Prosecutions Noordin Haji at a past event.
Image: FILE

A few weeks ago, three individuals swore petitions in courts, wanting to have Director of Public Prosecutions Noordin Haji removed from office.

The latest addition to these petitions came on November 8.

Joshua Waiganjo, a man accused of impersonating a senior police officer wants DPP Noordin Haji removed from office for disobeying court orders that acquitted him.

Through lawyers Danstan Omari and Cliff Ombeta, Waiganjo has filed a petition at the Public Service Commission seeking Haji’s removal for failure to obey the orders and insisting on prosecuting him.

Another petition was from the family of murdered tycoon Tob Cohen, which wanted Director of Public Prosecutions Noordin Haji removed from office for gross misconduct and abuse of office.

The Cohens accused Haji of moving at a 'snail's pace' and mishandling the murder case in which widow Sarah Cohen is charged and has developed cold feet in prosecuting high profile cases.

The other petition was from Ibrahim Ndirangu, who also wanted the DPP removed from office.

On November 1, 2021, City businessman and Director of Jack and Jill Supermarkets Schon Noorani filed a third petition seeking Haji’s removal from office.

Through lawyers Danstan Omari and Shadrack Wambui, Noorani accused Haji of refusing to charge his former close ally and business associate Rajendra Sanghani whom he had loaned money, which had accrued to Sh240 million and he had refused to pay.

Noorani said that amounted to obtaining money by false pretences but the DPP had insisted that it’s a civil matter, not a criminal case.

Noorani however, decide to formally withdraw his petition.

“I have, after taking further legal advice and a lot of reflection, come to the conclusion that the issue was more of a civil debt than a criminal case. I have, therefore, decided to withdraw the petition,” he said.

On October 29, the High Court stopped the Public Service Commission from considering the first two petitions seeking Haji’s removal.

Justice James Makau said; "A conservatory order is hereby issued suspending PSC consideration of two petitions lodged for the removal of the DPP before the commission."

Haji who had filed a suit challenging the petitions argued that their only intent was to coerce and force him to charge Judge Kantai when there is no sufficient evidence against him.

"The purpose of the petitions before the PSC has always been the unreasonable and obsessive insistence of the petitioners to have Justice Kantai charged with the murder of Tob Cohen despite the absence of any credible evidence of his involvement," he said.

Security of tenure

The DPP enjoys security of tenure, where he or she serves for a non-renewable term of eight years.

However, what does it take to have the DPP removed from office?

Article 158 of the Constitution of Kenya lays down the circumstances under which a DPP can be removed from office as well as the complete procedure.

 The DPP can be removed from office over gross misconduct or behaviour which was the reason cited by all the petitioners.

He/she can also be removed because of inability to perform functions of his office due to mental or physical incapacity, incompetence, bankruptcy or non-compliance with Chapter Six of the Constitution (Integrity).

A person who wants the DPP removed from office has to present a petition in writing to the Public Service Commission with allegations with grounds for removal.

The PSC shall then consider the petition, and if satisfied that it has grounds for the DPP’s removal, the commission will send the petition to the president.

The president will have 14 days to suspend the DPP and with advice from PSC appoint a seven-member tribunal consisting of four persons who hold or have held office as judge of a superior court or qualify to be appointed as such.

Once suspended, the DPP will be entitled to half his salary until the time he will be fully removed from office.

One advocate with at least, 15 years standing nominated by the statutory body responsible for professional regulation of advocates, and two others with experience in public affairs will sit at the tribunal.

The tribunal will then appoint a chairperson from among its members and be responsible for regulation of the proceedings.

It will then investigate the matter ‘expeditiously’ and give recommendations to the president for action.

The Constitution, however, does not give a clear timeline of when this process should be executed.

The DPP may also resign by giving notice in writing to the President.

DPP Noordin Haji during the launch of the Execellence Charter on Tuesday, 8 June, 2021
DPP Noordin Haji during the launch of the Execellence Charter on Tuesday, 8 June, 2021
Image: WILFRED NYANGARESI

Legal expert Hassan Kulundu however, says removing the DPP from office could have far reaching implications on some of the ‘high profile’ cases he has been handling and what this will do in the end is, the public will lose confidence in the office of the Director of Public Prosecutions.

“The removal of DPP when he is handling the so called high profile cases extinguishes public confidence in his/her ability to execute functions of the office. Most of these cases you will notice have to do with corruption,” Kulundu said.

“The looser in this case is the public in the war against corruption. Some of these petitions are what we call corruption fighting back.”

He reiterated that it is in the best interest that the DPP serves his full term to accomplish what he has set to accomplish.

He also noted that the aggrieved parties who want the DPP out of office can use other legal ways, including filing a judicial review application in the high court where they can challenge Noordin Haji’s decision to prosecute or not to prosecute someone, powers that only his office holds.

“Have they tried the judicial review process to make the courts compel the DPP to prosecute those people? And even if DPP does not do that, there is an opportunity for private prosecution as provided for in the Criminal procedure code.”

Kulundu also notes that there is not clear procedure with timelines for DPPs removal to enable him enjoy tenure of office as long as he doesn’t abuse his powers.