• DCI under the leadership of George Kinoti and DPP steered by Noordin Haji are engaged in a push and pull over the handling of graft cases in the justice system.
• After two years of a seamless working relationship between the two crimebusters their teamwork seems to have hit turbulence.
The escalating cold war between the Directorate of Criminal Investigations and the Office of the Directorate of Public Prosecutions is threatening cripple the war on corruption.
DCI under the leadership of George Kinoti and DPP steered by Noordin Haji are engaged in a push and pull over the handling of graft cases in the justice system.
After two years of a seamless working relationship between the two crimebusters — presented as the dynamic duo that would invigorate the fight against corruption — their teamwork seems to have hit turbulence.
A letter a week ago by the director of Investigations Bureau John Kariuki telling detectives across the country that they will no longer furnish the ODPP with progress reports on cases under investigations lifted the lid on the feuds likely to deal a blow to President Uhuru Kenyatta’s war on corruption.
At the centre of the supremacy battle is a two-way volt fired by the DCI and DPP.
On one hand, the DCI is accusing the DPP of delaying the processing and approval of files, and sharing the information in the files with suspects.
In fact, Kariuki, in his internal communication, accused Haji's office of interference with investigations.
“Persons under Investigation files shall not be forwarded to the DPP until the investigations are complete as this tends to interfere with the ongoing investigations, thus hampering and delaying the investigation process unnecessarily,” he said.
The DPP, on the other hand, believes that some of the cases presented by Kinoti's team are weak and would easily be shredded into pieces by the defence.
Chief Justice David Maraga has on several occasions cautioned the DCI and the DPP against prosecuting their cases in public, yet the cases being presented in court are weak.
Ndung’u Wainaina, the executive director at the International Centre of Policy and Conflict, noted that the bad blood between Kinoti and Haji stems out of the recruitment process.
He noted that DPP still wants to operate under the old Constitution, where the public prosecutor could control investigations.
Wainaina says the public could be losing faith in Kinoti, a career police officer with a specialty in investigations, because there is clear evidence of political interference, slowly eroding the confidence in the DCI.
“Their loyalty is to the appointing authority. The recruitment process of the two was not as transparent as required by the Constitution. We have a DPP who came from the National Intelligence Service and still wants the investigations to go as it was at the NIS. On the other hand, we have DCI who feels he is a professional investigator and his work should not be interfered with,” he said.
The bromance between Kinoti and Haji was once characterised by dramatic Friday arrests of high-profile individuals in and outside government, and regular public updates on operations of their offices.
Some of the cases they were pursuing have since faded away since the beginning of this year.
On two occasions this year, the DPP has declined to approve two cases presented to his office by the DCI, signalling the worsening relationship between the two crucial offices in graft war.
In the first instance, Haji declined to give the greenlight to DCI to charge former Kenya Ports Authority MD Daniel Manduku, who had been arrested over alleged tendering malpractices.
Haji said differences between prosecutors should not be interpreted as differences between them.
And in a second instance, just last week Monday, Haji did not approve charges that the DCI had preferred against National Water Harvesting and Storage Authority CEO Geoffrey Sang, among other officials.
DCI arrested the top managers over a number of allegations, including abuse of office and malpractices.
ANC leader Musalia Mudavadi says the bad blood between Kinoti and Haji will not only stall the war of graft but will also endanger the smooth operations in the justice system.
Mudavadi is proposing that President Kenyatta should order investigations into what could be ailing the two institutions.
“As a country, we need to get to the bottom of what ails relations between the two institutions before they become the graveyard of criminal justice in the country. We cannot afford to be a country in which investigations disappear quietly and inconclusively between the DCI and the DPP just because two officers are not able to work together,” Mudavadi said on Sunday in a statement.
In March this year, Haji dismissed media reports of their fallout, saying they were fabricated stories.
Mudavadi, however, says “where there is smoke, there is fire”.
"Twice in two months, the two directors have denied in public that there is bad blood between them. As often happens in such situations, they have blamed the media for what they call “misleading the public,” Mudavadi said.
He added, “It is impossible that the entire media fraternity in the country could conspire to peddle falsehoods on a matter of such critical importance as the relationship between the two topmost officials in the two main institutions charged with fighting crime in the country.”
Suba Churchill, the presiding convener of Civil Society Reference Group, said failure by the ODPP and the DCI to develop guidelines on how the two agencies will approach and work harmoniously is part of the reason they are always running into collisions.
“While the DCI seems to have adopted the mandatory prosecution approach to cases of a criminal or corruption nature, the ODPP seems to be swinging towards the discretionary prosecution approach,” Churchill told the Star on the phone.
“The DCI and the DPP may want to consider an approach that allows officials to use transparent, controlled discretion to decide whether to pursue particular kind of enforcement mechanisms – criminal, administrative, civil or disciplinary – in the light of all relevant circumstances. Such an approach could help ensure limited resources are directed to the most important cases,” he added.
Nandi Senator Samson Cherargei, who is also the chairman of the Senate’s Justice, Human Rights and Legal Affairs committee, said, “it is unfortunate that the foundation of Kinoti and Haji was on media headlines”.
He told the Star that so far, all the cases they have taken to court are heading in the same direction and may not secure victory as “the cases were politically driven to target certain individuals”
“Kenyans had high hopes in them but they ended up building up their cases on hearsay and taking instructions from some quarters for political expediency. Now it is dawning on them that they took a wrong route,” he said.
Edited by E.Kibii