Human Rights Activist Okiya Omtatah has filed a petition on the turf wars between the National Police Service and the Director of Public Prosecutions, inviting the High Court to uphold the doctrine of checks and balances which is integral to the basic design of the Constitution of Kenya, 2020, and which defines and limits the functions and powers of all State organs including of the two institutions.
He wants the court to determine that the decision to charge suspects in court is not one and the same as the decision to put accused persons on trial (i.e., to institute and undertake criminal proceedings against accused persons).
He also want the court to determine that the powers to process (investigate incidents and draw, sign and file charge sheets) and present suspects in court belong to the National Police Service and are not part of the prosecution (trial) process which only kicks in where accused persons plead not guilty to charges and have to be put on trial.
Hence, the expression in Article 157(6)(a) of the Constitution that the Director of Public Prosecutions may “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” simply means that it is the mandate of the DPP to start and conduct the trials of those who plead not guilty.
The DPP has no role to play in the criminal justice system where no trial takes place, such as where the Police investigate, clear, and free suspects; or where charges are withdrawn by aggrieved parties; or where accused persons plead guilty at the first appearance in court; or where the trial court, on its own motion before trial, dismisses the charges as baseless.
The matter has been certified urgent and admitted for hearing during the high court recess.
The Matter will be heard on October 4,2020
