Director of Public Prosecutions under the New Constitution
Open. Accountable. Responsible
The Director of Public Prosecution has authority over all criminal investigations and prosecutions. The DPP can direct the Inspector-General of Police to investigate any crime. This authority can be delegated to others.
The DPP serves for a maximum of eight years
The office of Public Prosecutions was previously under that of the Attorney-General, under the old constitution. Under the Constitution of Kenya 2010, the Director of Public Prosecution is an autonomous office under the Public Service. This arrangement appears to have weakened the clout of the DPP, leading to inadequate funding to the Office and thereby perpetuating the delay of justice because of insufficient numbers of prosecutors.
The office of the Director of Public Prosecutions DPP, is now an independent constitutional office concerned mainly with criminal investigations and prosecutions. Chapter Nine - The Executive, Part 4 of the New Constitution:
157. (1) There is established the office of Director of Public Prosecutions.
(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
The DPP is expected to be and indeed is independent of any person(s) or authority in the exercise of the powers of that office:
(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.
The powers of the office of the DPP may be exercised by delegation to other(s) under specific instructions from the DPP;
(9) The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.
Or by other Constitutional Offices such as Independent Commissions by way of legislation:
(12) Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.
The DPP has wide ranging Constitutional powers in criminal prosecutions and specifically in relation to commencement and terminations of proceedings.
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may— (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and (c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
The powers so accorded the DPP under Clause (6) above, will be presumed to have been exercised in the interest of justice for the accused and ultimately, in the interest of public good;
(7) If the discontinuance of any proceedings under clause (6) (c) takes place after the close of the prosecution’s case, the defendant shall be acquitted.
(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice .......
All in all, the affected Court is duty bound to ensure that justice is served in any such action by the DPP; it retains the ultimate say on the matter of whether the DPP can terminate an on-going prosecution, lest the DPP be acting mischievously:
(11) In exercising the powers conferred by this Article, ........ to prevent and avoid abuse of the legal process.
(8) The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.
Keriako Tobiko, Director of Public Prosecutions
The DPP serves for a maximum period of 8 years:
157. (5) The Director of Public Prosecutions shall hold office for a term of eight years and shall not be eligible for re-appointment.
The DPP is hired (and can only be fired) by the Public Service Commission, PSC; and may only be removed from office by the President upon a successful application to the President via the Public Service Commission, PSC as the nominating authority of the holder of the office, and following investigations by a tribunal that confirms the charges against the DPP:
158. (1) The Director of Public Prosecutions may be removed from office only on the grounds of— (a) inability to perform the functions of office arising from mental or physical incapacity; (b) non-compliance with Chapter Six; (c) bankruptcy; (d) incompetence; or (e) gross misconduct or misbehaviour.
(2) A person desiring the removal of the Director of Public Prosecutions may present a petition to the Public Service Commission which, shall be in writing, setting out the alleged facts constituting the grounds for the removal of the Director.
(3) The Public Service Commission shall consider the petition and, if it is satisfied that it discloses the existence of a ground under clause (1), it shall send the petition to the President.
(4) On receipt and examination of the petition, the President shall, within fourteen days, suspend the Director of Public Prosecutions from office pending action by the President in accordance with clause (5) and shall, acting in accordance with the advice of the Public Service Commission, appoint a tribunal consisting of—(a) four members from among persons who hold or have held office as a judge of a superior court, or who are qualified to be appointed as such; (b) one advocate of at least fifteen years’ standing nominated by the statutory body responsible for the professional regulation of advocates; and (c) two other persons with experience in public affairs.
(5) The tribunal shall inquire into the matter expeditiously and report on the facts and make recommendations to the President, who shall act in accordance with the recommendations of the tribunal.
In the absence of the above process happening, the current DPP will serve until 2019. Clearly, the process for the removal of the DPP is designed to prevent the sort of witch-hunting and the accompanying public kangaroo courts and lynch-mobs that accompanied calls for the removal of the then newly-appointed DPP in 2011.
1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.