Debate arises on fate of court cases in DPP’s absence

Debate is raging on whether the vacancy in the office of the Director of Public Prosecutions (DPP) could affect hundreds of cases in court after Mr Keriako Tobiko, who last held the position, was nominated to the Cabinet by President Uhuru Kenyatta on January 5.  

This week, lawyer Donald Kipkorir said any prosecution commenced in the absence of the DPP would be null and void.

“When Keriako Tobiko resigned as DPP, a vacancy arose. The Constitution once again left a lacunae on what happens to the DPP’s powers in his absence.

"To continue with prosecutions now is a fool’s errand,” he wrote on Twitter, a social media site, noting that the office was “constitutional and in personam” (a legal term that means “directed at or relating to a specific person”).

READ: Kajiado leaders hail Tobiko choice

PROSECUTORS
But Attorney General Githu Muigai has dismissed the position taken by the lawyer.

“Whereas the DPP is the chief public prosecutor, he is not the only prosecutor in the country,” Prof Muigai told the Sunday Nation.

“The ODPP (Office of the Director of Public Prosecution) is a directorate manned by prosecutors trained to do their jobs. It doesn’t mean that the DPP has to originate every prosecution.”

He said that the only powers that the current prosecutors cannot exercise is that of nolle prosequi — the powers given by the Constitution to the DPP to terminate a legal proceeding.

CORRUPTION CASES
Mr Kipkorir could have been comparing the situation at the ODPP with last year’s Court of Appeal finding that the Ethics and Anti-Corruption Commission (EACC) was improperly constituted in mid-2015 when it forwarded several corruption cases to the DPP for prosecution yet it had no commissioners.

The ruling led to the collapse of tens of high-profile corruption cases that were at different stages of litigation.

READ: Gladys Shollei off the hook in graft case

Those who benefited from the ruling include former Transport Cabinet Secretary Michael Kamau, former Judiciary Chief Registrar Gladys Shollei, former Lands Cabinet Secretary Charity Ngilu, former Kenya Pipeline Corporation MD Charles Tanui, former National Youth Service director general Nelson Githinji and former Nairobi County chief of staff George Wainaina.

At the time, the AG and the secretariat of the anti-corruption body insisted they were properly constituted. 

PRECEDENCE
On Saturday, Prof Muigai said the situation at the ODPP and the EACC are not comparable.

“I have never agreed on the Court of Appeal ruling on the constitutionality of EACC without commissioners.

"But even then, I see no similarities between the two cases. EACC is a commission whereas the [O]DPP is a directorate,” he said.

But the  Law Society of Kenya (LSK) president Isaac Okero said the Appeal Court ruling on the legality of EACC’s composition following the resignation of its commissioners has ramifications for all constitutional commissions.

“This precedent makes imperative the careful consideration of any transition of persons occupying the offices of commissioner of an independent commission in order that its functions remain legal,” he said.

VACANCY
He said that even though there are other officers that can carry out prosecutions within the ODPP, there are certain functions that must be exercised personally by the DPP and cannot be delegated.

“The DPP must superintend, direct and control his deputies who cannot be expected to operate indefinitely without such.

"However, as relates to the primary function of the prosecution of criminal cases, provided the necessary instructions are in place, it will operate to ensure that the primary function of the ODPP is not compromised by a sudden vacancy in the office of the director,” he said.

Meanwhile, lobbying for the position is in high gear, with some names being mentioned.

CONTENDERS

These include a former MP, several government officials and top city lawyers. 

Solicitor General Njee Muturi, Deputy DPP Dorcas Oduor and the deputy CEO at the EACC Michael Mubea are among current government officials the Sunday Nation has learnt are interested in the job. 

Other names being mentioned are lawyers Thomas Letang’ule, Ken Ogeto, Kioko Kilukumi, Katwa Kigen, Ahmednassir Abdullahi, Ken Nyaundi, and former Ainabkoi MP Samuel Chepkonga.

We couldn’t reach Mrs Oduor for comment but she is naturally a strong contender for the job, having deputised Mr Tobiko for the past seven years.

If she succeeds, she will be the first woman to hold the job.

APPLICATION
Mr Abdullahi, Mr Ogeto, Mr Kilukumi and former IEBC commissioner Letangule did not reply to our requests for comment.

Mr Kigen, who represented journalist Joshua Sang at the International Criminal Court trials, was non-committal about his interest in the job.

“Let’s see when they open it up for application,” he said via phone.

Mr Nyaundi said he was not aware of the rumours linking him to the job.

“I am hearing this for the first time from you, but it’s good that people have faith in me,” he said.

KIOKO KILUKUMI
Mr Ogeto was in the team of local and international lawyers who represented President Uhuru Kenyatta at the ICC.

He and Mr Abdullahi were also in the team of lawyers who represented the President in the Supreme Court cases challenging his victory on the first presidential election on August 8 last year and the repeat one on October 26

Should he be nominated, Mr Kilukumi will be making a second attempt at the job.

President Mwai Kibaki first named him to the position on January 2011, to widespread public outcry.

The President was accused of flouting the Constitution — which had been passed barely four months before — which required nominees to top government positions to be vetted by Parliament.