AG drawn into Kinoti, Haji wars over new criminal laws
A major split has emerged within the various government agencies in the criminal justice system, threatening to scuttle the fight against corruption and other criminal cases.
The split, pitting Director of Public Prosecutions (DPP) Noordin Haji on one side against Attorney General Kihara Kariuki and the Director of Criminal Investigations (DCI) George Kinoti stems from the controversy over the launch of the new rules on criminal cases by the DPP’s office in a function boycotted by the rival group on Tuesday.
Kihara and Kinoti accuse the DPP of unilaterally formulating the guidelines on prosecutorial powers and the case management system without their involvement.
However, the DPP enjoys the support of a section of the Multi-Agency Task Team (MAT) charged with tackling corruption.
Those in support of the guidelines include the Ethics and Anti-Corruption Commission (EACC), the National Intelligence Service (NIS) and the Anti-Money Laundering Unit.
Those backing the AG and DCI include the Asset Recovery Agency (ARA), the Financial Reporting Centre, the Kenya Revenue Authority (KRA), Banking Fraud Investigation Unit (BFIU), Cyber-Crime Unit and the Anti-Counterfeit Agency.
Ironically, MAT is chaired by the AG and directly reports to the President.
Sources accuse Haji of unilaterally formulating the new guidelines without involving the other members of MAT in what is now being perceived to have been his determination to assert his authority on investigations and prosecutions.
During the launch of the new guidelines, both Kinoti and Kihara were conspicuously missing. Yesterday a spokesman at AG’s office, Ms Irene Agum insisted that the State Law Office was represented at the launch and downplayed claims that it was not involved in the formulation of the new policy.
“Basically, the AG’s office is involved in every legal process in the country, and this one could not have been an exception.
Though our representative was not given a chance to make a speech, he was there,” Ms Agum told People Daily.
But Haji insisted that the guidelines were formulated after wide consultations among all “stakeholders” and all interested parties invited to the launch.
“You people of the media like reading too much in everything. Who says I did not consult him? Everyone was brought on board and those saying otherwise are lying to the public,” Haji said when contacted.
Wide consultations
But sources at both the AG and Kinoti’s office insisted they had not been involved in the formulation of the new guidelines that mandate prosecutors to determine whether there is sufficient evidence that provides higher chances of conviction before taking the case to court.
According to Section 4 (2) of the new guidelines, the DPP has the ultimate authority to determine criminal charges against any suspect, a move that Kinoti’s team view as interference with their investigative work.
“Whilst the roles of the investigator and prosecutor are complimentary, ultimately the decision to charge rests with the prosecutor,” the guidelines state.
Kinoti declined to comment on the matter, only referring us to either the ODPP or the AG. “I have nothing to say.
Why don’t you find out from the people you saw launching the so-called guidelines? Or what do you want me to say?, Kinoti retorted when we sought his comment.
At the AG’s office, sources intimated that the new guidelines are likely to create confusion within the criminal justice system as some of them contradicted existing laws, such as the Criminal Procedure Code (CPC).
“Are the guidelines in conformity with the existing laws, both the Constitution and CPC? Are the courts going to be guided by the guidelines or the existing laws?” A source at the AG’s office questioned.
The source further questioned why the AG was not consulted in the formulation of the new rules as the government legal officer and chief advisor.
“Who participated in their formulation and why were other stakeholders not involved in the process? Was there something fishy that somebody somewhere wanted to hide?”
Sources are now pointing fingers at Haji and the EACC chief Twalib Mbarak for allegedly working behind the back of other MAT members to formulate the new rules that seek to assert the authority of DPP on investigations and prosecutions.
