• The incident at Milimani law courts on March 3 was a needless functional altercation, considering the standard procedure on registration of charges in court.
• Save for specific need, or prior arrangement, police have no obligation to consult with the DPP before the registration.
The alleged disagreement between the DPP and the DCI is regrettable, given their declared commitment to fight crime. Commendably, both have refuted the allegation.
However, the incident at Milimani law courts on March 3 was a needless functional altercation, considering the standard procedure on registration of charges in court.
For, contrary to the narrative advanced by some lawyers, registration of criminal charges in court for suspects is the responsibility of police officers, pursuant to sections 35 and 36 of the Criminal Procedure Code. Save for specific need, or prior arrangement, police have no obligation to consult with the DPP before the registration.
Following registration of a charge sheet, and after the court is satisfied that a proper charge is disclosed under Section 137 of the Code, the accused is invited to plead. At that point, the prosecutor representing the DPP, or the defence lawyer, could apply for deferment of plea taking to get such instructions as may be desired. There should be no cause for altercation over that formal and brief process: The DPP could exercise his sweeping powers under Article 157 of the Constitution.
Though the unfortunate incident is symptomatic of some functional discord, it is not surprising given the two institutions are driven by strong and zealous leadership. Nonetheless, it provides an opportunity to appreciate functional pinch point issues underlying the relationship between the two offices specifically, and a bit more, in the interests of effective and expeditious administration of criminal justice.
The two offices are expected to work in cohesion and with the objectivity of purpose, as perceived discord between them could destabilise the system’s effectiveness in the administration of justice. However, objective and conscientious prosecutors, or investigators don’t just happen. They are products of many functional experiences and lessons learnt. Sometimes, it would take occasional altercations to mold and strengthen professional character and attitude, provided that such altercations are not instigated by malice to subvert the cause of justice. Ideally, both practitioners should be defined by virtues of integrity, self-discipline, passion and above all loyalty to serve the public good.
Paradoxically, the general relationship between prosecutors and investigators, virtually in all criminal justice systems worldwide is variably founded on quicksand of interdependence, despite the truism that both need each other to succeed in their respective functions.
Prosecutors are dependent on investigators to avail them of cases for prosecution, especially in jurisdictions such as ours where the practice of investigative prosecution is not well grounded. Similarly, investigators depend on prosecutors to guide them on matters of facts, through independent evaluation of investigation outcomes. Ideally then, there should be constant interaction based on mutual respect for each other’s point of view.
Yes, occasional functional discord, which could threaten to derail the institutions’ common agenda is inevitable, but there should be immediate intervention for amicable resolution. That is precisely why, for instance, there must always be open and candid lines of communication to justify, either why some completed cases would not see the light of day in court, or why re-investigating others would be untenable, to avoid unjustified speculation. Agreeing to disagree is a fair game!
On a related side issue, Article 157(12) of the Constitution provides: "Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions."
The import thereof is that the function of prosecution is not exclusively the preserve of the DPP, especially where compelling circumstances and persuasive arguments exist to extend it to other authorities.
A case in point is the Ethics and Anti-Corruption Commission, which has over the years argued its readiness to take full responsibility for the outcomes of its cases in court, if empowered to prosecute them as well.
Given the volume of cases forwarded by the Commission and other investigative authorities to the DPP, the demanding responsibility to review them exhaustively, advise on each expeditiously and prosecute some, would ease significantly if shared with authorities with internal capability.
The DPP would still reserve the right to exercise the power under Article 157(6) to take over and continue any criminal proceedings in any court that may have been instituted, or undertaken by another person or authority.
Most crucially, the other authorities empowered to prosecute would as well reserve the right to consult with the DPP on a need basis; it would be a win-win situation for all. It is time Parliament invoked that provision to let actors in major crime investigations carry their own crosses to Calvary. If done, the incidence of intermittent turf rivalry and blame games shall reduce significantly.
All said, the DPP and the DCI should forge a more closer and engaging working relationship than before, purposefully safeguarding themselves against derailment of focus by forces of criminal impunity, and confidently ride on the prevailing political good-will, from the highest office in the land, to succeed in their daunting tasks. Similarly, their officers should maintain open channels of communication, because when they stop communicating well, they stop relating well.
Mwangi is a law enforcement and security management consultant,
Lead Partner, Edge Trainers & Consultants