• The ODPP and the DCI were also at some point engaged in blame games over who was responsible for collapsing the cases brought before the court.
• This tiff points to a lack of accountability in the investigation process.
Chief Justice Emeritus David Maraga on many occasions expressed concern over the shoddy investigations in the wake of high profile cases that went before the court, only to end up in acquittals.
Justice Maraga’s observations came against the backdrop of accusations by President Uhuru Kenyatta that the Judiciary was the weak link in the fight against corruption.
The Office of the Director of Public Prosecutions (ODPP) and the Directorate of Criminal Investigations (DCI) were also at some point engaged in blame games over who was responsible for collapsing the cases brought before the court.
Whereas the DCI accused the ODPP of delaying justice by holding on to case files, the latter accused the former of rushing to court before consulting him and conducting proper investigations.
This tiff points to a lack of accountability in the investigation process.
The lack of accountability explains why several cases have been presented before the court but only a few have gone beyond the plea taking stage.
The DCI, therefore, needs to be held to account for the quality of investigations it conducts.
Even as the DCI accuses the Judiciary and the ODPP of failure of certain cases to result in convictions, it may be important to ask the question: how come then are the investigations not leading to convictions?
Could it be that shoddy investigations are the problem?
There is a need for systems that measure the quality of investigations in order to ensure that evidence especially on matters of corruption meets the threshold of “beyond reasonable doubt”.
It is clear from the current system that the DCI needs an external mechanism to measure the quality of investigations even before they are presented to the ODPP for prosecution.
An external Investigations Ombudsman; an impartial arbiter focused on giving oversight to the DCI, would go a long way in strengthening investigations.
Above all, the DCI needs to raise professional and integrity standards of investigations.
According to the United Nations Office on Drugs and Crime (UNODC), investigators’ actions should all be based on the law.
At times legal stipulations may be insufficient when it comes to the day-to-day exercise of police investigative powers.
It is imperative that the DCI develops comprehensive professional standards (Codes of conduct).
Clear professional guidance on the exercise of police investigative duties and powers, professional standards, guidelines and instruction on investigations, arrest and detention is a good step for enhancing the potential for convictions and preventing investigative officers from breaching the law.
Investigators must enhance and detail ethical standards acceptable by all players in the criminal justice system.
The DCI must establish a code of ethics which sets overarching integrity standards to guide the conduct of investigators during investigations (in the past they have been accused of lack of integrity/even deliberately botching investigations to ensure collapse of cases).
The code of ethics must be built upon the values of impartiality, fairness, equality, justice, honesty, respect for human rights and dignity.
But for this to succeed, the DCI must allow and set in place procedures for regular and unannounced inspections and spot checks by other players in the criminal justice involved in ongoing investigations carrying high risk of professional and ethical violations.
There is also a need for accountability during the investigations process.
This can be achieved through enhancing the supervision and monitoring of DCI organizational processes and individual investigator/teams’ behaviour.
Supervision will serve to verify compliance of day-to-day policing practices with the law, policies and integrity standards and detect unlawful and/or unethical behaviour.
It can also be achieved through enhancing rigorous record-keeping and internal briefing and reporting procedures of investigations with other players in the criminal justice system.
The DCI must also enhance the internal audit mechanisms on investigations, as well as resource management processes to assess whether they effectively promote professional and integrity standards during investigations.
Of great importance is the fact that the investigator must always be ready to explain their thinking and actions to the court.
For example, when an investigator is asked by a court, “How did you reach that conclusion to take your chosen course of action?”, an investigator must be able to articulate their thinking process and lay out the facts and evidence that were considered to reach their conclusions and form the reasonable grounds for their actions and their investigative decision-making process.
For an investigator appearing before court, this process needs to be clear and validated through the articulation of evidence-based thinking and legally justifiable action.
Thinking must demonstrate an evidence-based path to forming reasonable grounds for belief and subsequent action.
Thinking must also demonstrate consideration of the statutory law and case law relevant to the matter being investigated.
Considering this accountability to outcomes, it is imperative for police investigators to have both the task skills and the thinking skills to collect and analyze evidence at a level that will be acceptable to the criminal justice system.
Investigation is the collection and analysis of evidence.
To be acceptable to the court, it must be done in a structured way that abides by the law and the appropriate processes of evidence collection.
Additionally, it must be a process the investigator has documented and can recall and articulate in detail to demonstrate the validity of the investigation.
John Mwakio is an Eldoret-based lawyer.