The alleged disagreement between the offices of Director of Public Prosecutions (DPP) and Director of Criminal Investigations is regrettable, given their declared commitment to deal decisively with criminal offenders. Commendably, both have refuted the claim.
However, the incident at Milimani Law Courts on Tuesday, 3 March 2020, was a needless functional altercation considering the standard procedure on registration of charges in court.
For, contrary to the narrative advanced by some lawyers, registration of criminal charges in court for persons arrested for specific offences, is the responsibility of police officers under sections 35 and 36 of the Criminal Procedure Code.
Save for specific need, or prior arrangement, police have no obligation to consult with the DPP before the registration.
Following registration of a charge-sheet, and after the court is satisfied that a proper charge is disclosed under section 137 of the Penal Code, the accused is invited to plead to the charge. At that point, the prosecutor representing the DPP, or the defence lawyer, could apply for deferment of plea taking, to get such instructions as may be desired.
There should be no cause for altercation over that formal and brief process: thereafter, the DPP could exercise his sweeping powers under Article 157 of the Constitution.
Though the unfortunate incident is symptomatic of some functional discord, it is not surprising given that the two institutions are driven by strong and zealous leadership.
Nonetheless, it provides an opportunity to appreciate functional pinch point issues underlying the relationship between the two offices specifically, and a bit more, in the interests of effective and expeditious administration of criminal justice.
As part of the key pillars in the criminal justice system, the two offices are expected to work in cohesion and with the objectivity of purpose, as perceived discord between them could destabilise the system’s effectiveness in the administration of justice.
However, objective and conscientious prosecutors or investigators don’t just happen — they are products of many functional experiences and lessons learnt along the way.
Sometimes, it would take occasional altercations like that unfortunate incident, to mould and strengthen professional character and attitude, provided that such altercations are not instigated by malice to subvert the cause of justice.
Ideally, both practitioners should be defined by virtues of integrity, self-discipline, passion and above all loyalty to serve the public good.
Paradoxically, the general relationship between prosecutors and investigators, virtually in all criminal justice systems worldwide, is variably founded on a quicksand of interdependence, despite the truism that both need each other to succeed in their respective functions of investigation and prosecution of criminal cases.
Prosecutors are dependent on investigators to make available cases for prosecution, especially in jurisdictions such as ours where the practice of investigative prosecution is not well grounded.
Similarly, investigators depend on prosecutors to guide them on matters of facts, through independent evaluation of investigation outcomes. Ideally then, there should be constant interaction based on mutual respect.
Yes, occasional functional discord, which could threaten to derail the institutions’ common agenda is inevitable but there should be immediate intervention for an amicable resolution. That is precisely why, for instance, there must always be open and candid lines of communication to justify, either why some completed cases would not see the light of day in court, or why reinvestigating others would be untenable, to avoid unjustified speculation. Agreeing to disagree is a fair game!
All said, the DPP and the DCI should forge a closer and engaging working relationship than before to safeguarding themselves against derailment of focus by forces of criminal impunity, and confidently ride on the prevailing political goodwill, from the highest office in the land, to succeed in their daunting tasks. Similarly, their officers should maintain open communication channels to maintain a good working relations.
Peter Mwangi, Lead partner, Edge Trainers & Consultants, Nairobi.