The perceived rivalry between the Director of Criminal Investigations (DCI) and Director of Public Prosecution (DPP) may be the weakest link in the fight against corruption. It should not be allowed to persist. That the two offices are critical components of the criminal justice system cannot be overemphasised. And whereas these authorities exercise distinct constitutional mandates, they remain interdependent and, therefore, close cooperation between them is essential in safeguarding public interest. The framers of our laws did not envisage a situation where the two agencies would work at cross purposes, even for a moment.
Universally, the purpose of any criminal justice system is to realize the rule of law, which is one of the most fundamental conditions for the sustainable development of societies. For this purpose, justice has to be given to those who have broken the law while protecting due process of law.
Accordingly, the investigative agencies, such as our own DCI, are empowered to conduct investigations to give justice to suspects, whereas prosecutors are empowered to check the investigation conducted by the police and to mount prosecution, if tenable, following the due process of law. In other words, prosecutors are vested with the responsibility of checking the investigative process and outcome against due process of law. In order to protect the independence and authority of the DPP, Article 157 (10) of the Constitution of Kenya 2010 provides that the DPP does not require the consent of any person or authority for commencement of criminal proceedings and in exercise of his functions he is not under the direction or control of any person or authority.
The DPP is, nonetheless, under duty to take into account and safeguard public interest in the exercise of his mandate. Under Article 244(b), the National Police Service is mandated to prevent corruption and promote and practice transparency and accountability.
The DCI is established under section 28 of the National Police Service Act and is under the direction, command and control of the Inspector-General of the National Police Service. It’s instructive that under Article 157(4), the DPP has 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.
Legal practitioners agree that the decision to prosecute or to discontinue a prosecution is weighty since prosecutions that are not well founded in law or fact, or do not serve the public interest may unfairly expose citizens to the anxiety, expense and embarrassment of a trial while the failure to effectively prosecute guilty parties can directly impact public safety.
Clearly, it goes without say, that both the DPP and the DCI are mandated to protect public interest in the criminal justice system and to prevent and avoid abuse of the legal process. What is required is mutual goodwill between the two authorities.
It would, indeed, be difficult to imagine the DCI investigating a case individually, without coordination of actions with other agencies and particularly the DPP, especially when complex, multi-episodic cases are involved.
The writer is MP for Ugunja and chair of the Public Accounts Committee in the National Assembly.