Police, DCI have no powers to charge crime suspects – judges

Thursday, May 26th, 2022 00:11 | By
Director of Criminal Investigations George Kinoti (left) and his Public Prosecutions counterpart Noordin Haji address a press conference in the past. The two have been at loggerheads over handling of cases. PD/file

It is now official that only the Office of the Director of Public Prosecutions (ODPP) can prefer criminal charges against suspects in court.

Three different High Court judgements have barred all investigative agencies and government entities — the police, Ethics and Anti-Corruption Commission (EACC), Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, the Anti-Counterfeit Agency, County governments and Independent Policing Oversight Authority (IPOA) — from drafting, signing and presenting charge sheets for criminal prosecutions.

Lawyers say the judgements would have far reaching ramifications as several semi-autonomous government agencies, that previously had both investigating and prosecutorial powers, will have to go back to the drawing board to redefine their operations.

The landmark judgements read separately by Justices Anthony Mrima, George Odunga and Weldon Korir have also brought to an end the long-running feud between Director of Public Prosecutions (DPP) Noordin Haji and his Directorate of Criminal Investigations (DCI) counterpart George Kinoti over prosecution of criminal cases.

Weak cases

Judges Mrima, Odunga and Korir said that though the roles of the investigator and the prosecutor are complimentary, the decision to charge rests with the DPP.

The judgements have been hailed by lawyers as “a solution to taming some of the rogue investigative agencies that either come up with weak cases or framed up charges.”

Senior Counsel Philip Murgor and Tom Ojienda, while supporting the judgements, say the DPP has the discretion to commence, discontinue, even amend or take over any criminal cases before the court.

“This is enshrined in Article 157 of the Constitution and any other law that contradicts that is null and void,” says Ojienda.

Murgor, however, cautions that the ODPP must also tread carefully not to involve himself in investigations as doing so would contradict the Constitution.

All the three judges ruled that the two offices should amicably resolve their disagreements.

The latest ruling, Justice Mrima of the High Court on May 23, 2022 declared that any charge sheet prepared and signed by a police officer is illegal and unconstitutional on grounds that the prosecutorial role in criminal cases lies with the DPP.

Mrima made the judgement when he quashed criminal charges leveled against businessman Humphrey Kariuki and others over alleged Sh17 billion tax evasion.

The judge stopped further prosecution of Kariuki and his co-accused by KRA stating the investigative authority was not the proper entity to prosecute the case.

“The prosecution of criminal offences in Kenya must only be undertaken by lawful Prosecutors (being either the DPP or such other persons exercising the delegated powers of the DPP under Article 157(9) of the Constitution or the entities conferred with powers of prosecution pursuant to Article 157(12) of the Constitution),” the judge ruled.

In his decision, the judge said that whereas KRA can investigate any offences relating to tax laws, it cannot prosecute such offences in court.

“It is apparent that the criminal case lacks any legal leg to stand on since the decision to charge was made by the National Police Service who was the investigator. Further, the charges were also drafted by the same investigator and that the prosecution was undertaken by the complainant (KRA),” Justice Mrima stated.

Kariuki through lawyer Kioko Kilukumi had challenged the move to have his case prosecuted by three KRA special prosecutors who had been appointed by the DPP in April 1,2021 through a gazette notice.

The judge issued orders that no charge sheets in any court in Kenya shall forthwith be accepted or registered if it has not been prepared and signed by lawful prosecutors.

“The National Police Service, the Ethics and Anti-Corruption Commission, the Kenya National Commission on Human Rights, the Commission on Administration of Justice, the Kenya Revenue Authority, the Anti-Counterfeit Agency or any other Government entity mandated with criminal investigation role... cannot draft, sign and or present any charge sheet in any criminal prosecution,” the judges said.

He, however, noted that the ruling shall not apply to past cases.

“Given the potential effect of this judgment in the criminal justice system in Kenya, this judgment shall not apply to previously instituted criminal proceedings,” he added.

In another similar decision by Justice Korir on March 24, 2021, the court dismissed activist Okiya Omtatah’s petition that had challenged the DPP’s decision to charge.

Justice Korir ruled that the power to file charges before courts belonged to the DPP and not the Inspector General of Police.

The court ruled that police have no powers to draft charges and take them to court without the authority of the DPP.

Korir further asserted that the DPP has powers to direct all investigative agencies to conduct investigations, to guide and assist such investigative agencies.

In his petition, Omtatah had sought several reliefs including a declaration that the DPP’s Guidelines on the Decision to Charge, 2019 is unconstitutional and therefore null and void.

Human rights

He also sought a declaration that the decision to charge or not to charge a suspect with a crime and registering such a charge in court is the culmination of and an integral part of the investigative process and it is strictly the exclusive mandate of NPS.

According to Justice Korir, Omtatah’s arguments were based on an erroneous interpretation of the Constitution and the applicable laws.

The DPP, in his submission, said separation of investigative and prosecutorial functions is not accidental but a well thought out intention on redeeming the country from a history of abuse of human rights.

The judge said the ODPP Act 2013 and the NPS Act, 2011 were passed after the promulgation of the Kenyan Constitution 2010 and they, therefore, supersede any provision of the Criminal Procedure Code which may give the impression that police officers are the persons to draft charge sheets and present them directly to courts.

In an earlier ruling, in the case of Geoffrey K. Sang v Director of Public Prosecutions and 4 others, Justice Odunga ruled the attempt by the DCI to charge Sang was “clearly unconstitutional, unlawful, illegal null and void”.

“The DCI, must keep to its lawful lane and must desist from the temptation to overlap even where he believes that those who are constitutionally empowered to take action are dragging their feet,” Odunga stated.

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