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The Director of Public Prosecutions (DPP) is the ofﬁce, under Kenya’s 2010 Constitution, responsible for instituting and undertaking criminal proceedings against any person before any court (other than a court martial) in Kenya with respect of any offence alleged to have been committed. The current office holder is Keriako Tobiko. The acronym DPP had previously been used to define the Deputy Public Prosecutor, an office under the Attorney General in Kenya’s previous Constitution when that office had prosecutorial powers.
Authority and function of Director of Public Prosecutions in Kenya – DPP
The DPP is now an independent constitutional office concerned mainly with criminal investigations and prosecutions.
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.
The powers of the office of the DPP may be exercised by delegation to other(s) under specific instructions from the DPP. ‘
Tenure of Director of Public Prosecutions in Kenya – DPP
The DPP serves for a maximum of eight years;
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, as the nominating authority of the holder of the office, and following investigations by a tribunal that confirms the charges against the DPP.
In the absence of the above process happening, the current DPP will serve until 2019. Clearly, the process of the removal of the DPP is designed to prevent the sort of Witch – hunting and accompanying public “kangaroo courts” and lynch mobs that accompanied calls for the removal of the then newly-appointed DPP in 2011.
Evolution of the Ofﬁce of the DPP in Kenya
The establishment of the Ofﬁce of the Director of Public Prosecutions (ODPP) is in line with Kenya’s Vision 2030, which the Government formulated (2008) as a long-term development blueprint for the country.
ODPP became an independent constitutional office from the Office of the Attorney General on July l, 2011 under Article 157 (1) of the Constitution. The aim was to professionalize prosecution services in the process of creating confidence among citizens in the administration of justice.
The office focuses on matters of criminal activities and exerts powers of prosecution on alleged culprits (other than court Martials).
The Office of the DPP has four thematic directorates:
- Offences against the person.
- Economics, international, and emerging crimes.
- County affairs and regulatory prosecutions.
- Central facilitation services
Each division is headed by a deputy director.
Training, standards, benchmarking for professional Offices
As a new office, ODPP identiﬁed the need to learn from various organisations and institutions, more so in strategic and operational plans, terms and conditions of service, competencies, organisation and grading structures and resources, and mobilisation strategies.
To establish lasting systems and structures, the office benchmarked with Botswana, Australia, Hong Kong, Canada, and the UK. Their best practices are being implemented in phases.
County/Decentralisation of prosecution services and delinking of staff
The office of the Director of Public Prosecutions in Kenya has managed to devolve to 29 county offices, previously at 16, in order to broaden prosecution services in the country.
Delinking the ODPP from the State Law Ofﬁce on July 1, 2011 saw the office commence operations from nothing. At the time, staff served both at the headquarters and the 13 field stations then in existence. A need realisation survey conducted in 2011 established that every level of courts was to be manned by a given number of cadre prosecutors. Therefore, the optimal staffing level was determined as 927 prosecution counsel and 370 for central facilitation services for effective service delivery.
Cases registered and concluded by the office of Director of Public Prosecutions in Kenya
So far, in July 2013, the office has registered and concluded the highest number of cases in Nairobi more than 3,000.
By July 2013, Garissa had the lowest number of cases registered more than 200, with more than 50 concluded.
Multi-agency task force
The major highlight was to conclude pending unresolved cases connected to the 2007/ 2008 post-election violence.
The office established a task force comprising the defunct Ministry of Justice, National Cohesion and Constitutional Affairs, the State Law Office, CID, and the ODPP. It reviewed more than 4,000 files from which more than 1,000 cases were filed in court. Sixty—one cases are pending in court.
Legal relationship between ODPP and Attorney – General’s Office
Each state in the Commonwealth and its territories has its own DPP. The Office of DPP operates independently of the Government.
The ultimate authority for authorising prosecutions lies with the Attorney-General, who is picked by the President to be the principal legal adviser of the Government, including control over public prosecutions.
But since it is desirable to have none-political (public service) post carry out this function, in most circumstances the prosecutorial powers of the AG are normally delegated to the DPP.
The DPP is separate from the Executive and is in charge of prosecutions. He is appointed by the President with the approval of the National Assembly. However, he is not a member of the Cabinet and may not be controlled by anyone.
He cannot be removed from office merely because the Executive or Parliament is displeased with his or her decisions about who to prosecute. The Constitution sets out limited reasons for removing the DPP and a strict procedure. These provisions ensure that decisions to prosecute are free of Executive inﬂuence.
The DPP informs policy decision-making in an advisory board where the AG is a member.
The DPP collaborates in matters of administration of justice that is review of laws.
The DPP collaborates for mutual legal assistance in international matters of prosecution, for example in the case in which the International Criminal Court has issued a warrant of arrest for journalist Walter Barasa and also in the case of former Cabinet minister Chris Okemo, who is cited in an international case.
As a side link, the DPP acts on matters that develop from civil petition cases to aspects of criminality.
Also, the office defends the Government against matters of criminal cases.
The Directorate of Public Prosecutions has indicated that plans are underway to recruit 190 more prosecutors to replace police prosecutors with competent lawyers.
The current 320 police prosecutors are eligible to apply for the positions if they are qualiﬁed, experienced, and competent. Such police officers, however, will have to resign their positions and cross over to the civilian side of the prosecution.
Independent prosecutorial offices have been established in 28 counties and others are soon to be set up for speedy delivery of services.