• Under the 2010 Constitution, the ODPP is supposed to make these difficult and important decisions without being influenced by anyone from outside the office.
• The Constitution says that the DPP does not “require the consent of any person or authority to begin criminal proceedings”.
One morning this week, my computer delivered new court decisions from two countries dealing with broadly the same issue.
That issue concerns the role of the Director of Public Prosecutions in deciding whether to charge a person with a crime, and how far the courts can rule on that decision. The countries, and courts, are the Supreme Court of Kenya, and the English High Court.
The DPP, provided that the office has the power to decide independently who to charge with crimes, is a really key office in a criminal justice system.
Yes, the courts ultimately decide whether a person is guilty. But many people, once charged, plead guilty (that is they admit the crime). In the US, about 97 per cent of people plead guilty.
Apparently, in Kenyan traffic courts, about 99 per cent plead guilty. For drivers, the trouble and cost of going through a full trial is too high – they would rather plead guilty and pay up.
In other cases, far fewer Kenyans seem to plead guilty. A tendency to pass laws imposing a minimum sentence for some crimes tends to discourage people from pleading guilty. Our courts are not keen on these laws, and some have been declared unconstitutional. Maybe Guilty pleas will become more common.
Lower rates of pleading guilty may partly be because people accused realise that the prosecution does not achieve a very high rate of convictions from Kenyan courts.
The more plead Guilty, the more crucial is the role of the DPP in deciding whether to prosecute, because the role of the courts is less.
People suspected of a crime are not automatically taken to court. The DPP’s office will consider how strong is the evidence of guilt. There may be public interest reasons for not taking a particular person or a particular case to court. This may sound like a real loophole. But the ODPP’s Guidelines have some sensible examples: The court is likely to impose a very small penalty, the person has already been punished by some other body (perhaps dismissed from their job), there was a genuine mistake or misunderstanding that led to the offence, or there has been a long delay between the commission of the offence and the trial.
There may be humanitarian reasons for not prosecuting: An old and frail person, for example, might not be prosecuted. A person might not be prosecuted in return for agreeing to give evidence against other people involved in the offence.
Even if the suspect admits guilt, there may be a decision not to prosecute. A policy known as “diversion” is intended to keep people out of prison, if possible. The idea is not to let individuals off the hook, but, for people who admit to the crime and regret it, to find some appropriate way of dealing with them. Maybe an apology, or maybe some programme – such as rehabilitation for someone whose real problem was drink.
A special approach applies to economic crimes. An organisation that been involved in financial misbehaviour may enter into a “deferred prosecution agreement” – basically “we won’t take you to court if…..” Last month five prominent Kenyan banks that had failed to report improper dealing in NYS money had the benefit of this. On their part they had to agree to improve their monitoring of large and possibly suspicious transactions.
You can begin to see how much power the ODPP has.
Under the 2010 Constitution, the ODPP is supposed to make these difficult and important decisions without being influenced by anyone from outside the office. The Constitution says that the DPP does not “require the consent of any person or authority to begin criminal proceedings”. And the office is not “under the direction or control of any person or authority”.
The government may have a legitimate reason for wanting particular crimes to be taken seriously. But any government direction about dealing with certain types of cases goes from the Cabinet Secretary not to the DPP but to the Inspector General of Police. And even to that official the directions must be general. The CS could say “please give a special focus to corruption investigations” but not “Please investigate Ms Y”.
Senator Muthama and the Supreme Court
If the facts alleged by the prosecution were correct, the Senator seems to have delivered himself of some pretty crude remarks. But our interest is in the reaction of his political opponents – or defenders of the government.
The Cabinet Secretary said, “It is, therefore, imperative that investigations into the speech and its intent begin in earnest. Senator Muthama should immediately record a statement at the criminal investigations department.” Rather loud-mouthed MPs called for the Senator’s arrest and prosecution.
He was charged with incitement to violence, and challenged the prosecution on various grounds including that the DPP had acted under the influence of these people.
The Supreme Court insisted that “the Cabinet Secretary cannot under any circumstances direct the DPP on what criminal proceedings to commence or continue with.”
But was the DPP influenced by these improper remarks? The court faced a bit of a problem. How could it possibly tell? To say that he had been influenced would be to imply that he was not fit for his job. What they could do was to stress in very clear terms the importance of the DPP being independent.
“Where the decision is surrounded by doubt or even mere reasonable suspicion, such a decision cannot be allowed to stand.” The court was emphasising that it is not just the reality that is important but whether it might look as though the DPP had not made up his own mind independently.
Unfortunately, even the President has behaved as though he could tell the DPP what to do. A weakness in the Constitution is that the President selects the DPP – though Parliament must approve. And more unfortunate that our President gave the last DPP a good job shortly before his term as DPP ended.
It is a great pity that so-called leaders are so misguided as to behave as though they can tell independent office holders how to behave, when the Constitution takes great care to state that this should not be done. Yet there is nothing legally that can be done to stop them. And, unfortunately, loud-mouthed and misguided politicians are not necessarily rejected by the voters.
Much does indeed depend on the independence of the DPP (as with the Auditor General and other bodies). As the Supreme Court said, “The DPP should remain fiercely independent, fair and courageous.”
How about a misguided decision not to prosecute?
This is the issue that confronted the High Court in England. If the DPP chooses not to prosecute someone who ought to be taken to court, can anything be done about it?
The English case involved a woman who objected to a decision not to prosecute a man for rape because she had not been given a full chance to express her views, as she should have been by a scheme that allows victims of serious crime to ask for a review of the DPP’s decisions - like not to prosecute. The court would not tell the DPP what to decide, but said that the decision should be revisited with proper chance for the woman to put her views.
In Kenya, the law about victims’ protection (which the Constitution requires) does not include any such right, and a victims’ charter - which the Act requires - seems never to be have been finalised.
It is not surprising that court challenges to a decision not to prosecute are rare. Most cases challenging decisions about prosecution are brought by people who think they should not have been prosecuted. But the Kenyan courts would probably be prepared to do as the English court did, and undo a decision that was based on wrong procedures.
Even an independent office must obey the Constitution, and only the courts are able to – and should - insist on this.