The announcement by President Uhuru Kenyatta of the resignation of DPP Keriako Tobiko and his nomination to head the Ministry of Environment was stunningly curious.
The DPP has security of tenure of eight years. It is inappropriate and obscure that no reason has been provided as to why he resigned.
The DPP is critical in the proper functioning of Kenya’s criminal justice system and upholding of the rule of law. For it to play this critical role, it must be independent of any external influence and manipulation and carry out its functions without fear, favour or prejudice. If it allows any interference, it runs the risk of losing its independence. This may result in loss of trust in it.
Prosecutors are the most powerful officials in Kenya’s criminal justice system. Their discretion about what criminal charges should be affects the safety and security of all. Effective prosecutorial accountability empowers the public and makes prosecutors responsible to citizens for their actions.
Any political interference with the DPP has tremendous negative impact. All safeguards must, therefore, be put in place to prevent the DPP from external executive and political interference in its functions. To achieve this, recruitment of staff, funding, charging and prosecution must be done independently, impartially and transparently. The Constitution identifies separation of powers among the three arms of government, with appropriate checks and balances. The DPP has all the constitutional powers on criminal proceedings and prosecution and is subject only to the Constitution and the law. It must, therefore, be able to make prosecutorial decisions without regard to political considerations. The discretion must not be subject to the authority of government. Officials must serve impartially and carry out their duties and functions in good faith. More so, no agency of state, its member or employee should interfere with, hinder or obstruct its authority or any of its members.
Prosecutors should be entitled to recruitment and promotion based on objective factors, and, in particular, professional qualifications, ability, integrity, performance and experience decided upon in accordance with fair and impartial procedures. It must be noted that even though the Constitution makes it independent, the success and failure of such institutional arrangements best rest with the calibre, judgement and personal integrity of the people who occupy the office. If the best people are not put in critical posts, however independent the institution is, it will fail.
An objective and transparent process of appointment must guarantee the best-qualified candidate is selected to be the next DPP. For the process to be transparent, several requirements must be met.
A transparent selection process is one that clearly identifies the potential candidates’ pool is accessible to potential applicants through advertising, publishes criteria and a procedure for its decision-making, accepts applications in a set format, assesses candidates consistently against the criteria, consults with a set range of outside institutions, makes decisions based on an objective assessment of whether the criteria has been met and provides reasons for the decisions.
The selection process must ensure the implementation of a genuinely transparent public evaluation process. Comprehensive criteria of appointment should include both suitability and eligibility that addresses capacity, integrity, competence, communication skills, independence, and performance credentials, among other factors. It should ensure that the final nominee is selected from the most talented legal professionals. This merit selection must encourage meaningful public participation in order to limit the role of political favoritism, and ensure that the next director is well qualified to occupy positions of public trust. Kenyans must be provided with a ‘marking scheme’ of the interviews, and how each candidate ranked to ensure credibility of the recruitment process and integrity of the nominee and hence maintain public confidence in the DPP.
The new DPP should be unapologetically fearless, independent and impartial. He /she should be a person beyond reproach. The individual must have full understanding, grasp and show outstanding and unwavering commitment to the values and principles of the Constitution and its underpinning philosophy.
The person should have unequivocal record of defending the independence and institutional integrity of the different institutions of Kenya criminal justice system.
Writer is Executive Director, International Center for Policy and Conflict, @NdunguWainaina