The announcement by President Uhuru Kenyatta that he had accepted the resignation of Director of Public Prosecutions (DPP) Keriako Tobiko and subsequently nominated him to the Cabinet was received with mixed feelings.
To some, Mr Tobiko will be remembered as the man who spearheaded the transformation of the public prosecutor from the colonial model that fulfilled the will of the executive, to the independence aspired by the 2010 constitution. He will be remembered for championing the welfare of prosecutors, including increasing their numbers and improving their terms of service; phasing out the less qualified police prosecutors; and, affirming and protecting the independence of the DPP as a constitutional creature.
To his detractors, Mr Tobiko did not do enough to secure high-profile prosecutions, especially with regard to economic crimes. Numerous scandals, emanating from both counties and national government, have gone unpunished. In Mr Tobiko’s defence, I posit that the criminal justice system must be analysed holistically, in that it can only work effectively if all the actors from the police all the way to the magistrate, play their part well.
An ideal criminal justice system is as strong as its weakest link. It requires clear, fair and concise laws from parliament, non-discriminatory and sound investigations by the police and other agencies like the Ethics and Anti-Corruption Commission, competent prosecution, sound determination of cases by the Judiciary and a prison or probation system tailored to rehabilitate offenders. As such, if investigations are flawed, there is very little that the office of the DPP can do to secure a conviction. In the same breath, there is very little the Judiciary can go with.
In my view, under Mr Tobiko, there were positive strides in redeeming the role of the Public Prosecutor in several ways. Firstly, his power of nolle prosequi was not abused as was the case before the 2010 Constitution.
Secondly, the ODPP on several occasions overturned decisions by the police to arrest and charge suspects when it was clear that prosecution was being used as a means of political persecution — the case of Nation Media Group Reporter Walter Menya comes to mind.
Thirdly, he rightly urged Parliament to review and update the Evidence Act in order to ensure that it catered for emerging issues such as electronic and digital evidence.
He said it had been difficult to secure prosecutions whenever the primary evidence was audio or video recordings. He should have gone further and asked Parliament to review the entire penal code, which still maintains colonial criminal sanctions that cannot pass constitutional muster.
As a lawyer who has participated in various human rights litigations seeking to expunge problematic laws through the High Court and other superior courts, my one criticism of the former prosecutor would be that he often defended problematic laws in the statute books.
I was befuddled when the ODPP opposed a case filed by five petitioners, all in remand, alongside the Law Society of Kenya and the International Justice Mission, challenging the constitutionality of “Peace Bond Statutes” under Sections 41-63A of the Penal Code.
These provisions allowed police to arrest people (I shan’t call them suspects) on the premise that they look like they are likely to commit a crime, and request the court to impose a bond on them to “keep the peace”. Never mind that no crime had been committed. Those unable to raise the bond amount often spent months in jail without any official charge.
Judge Mumbi Ngugi found that the provisions offended the right to equality before the law, human dignity, right not to be deprived of freedom arbitrarily and detained without trial, rights of arrested persons and fair hearing. Why oppose the scrapping of these laws?
Other cases that the ODPP would have sat out due to its status as an independent office protected under Article 157 and 255 of the Constitution include the infamous Security Laws (Amendment) Act in late 2014, and the cases challenging the constitutionality of “misuse of a licensed telecommunication system” — which was being used to unduly target bloggers, digital and online conversation especially those critical to duty holders, criminal libel, and “undermining authority of a public officer” that vaguely made it illegal to question or criticise such officials.
They were found to fundamentally infringe on the rights to free trial, freedom of expression and freedom and independence of the media in a legal regime that emphasises openness and democracy.
Overall, Mr Tobiko leaves behind a well-grounded institution. Those seeking to replace him must offer more than academic qualifications. The incoming DPP should ensure that the public prosecutor plays its role in dismantling the culture of impunity, ensure that the police and EACC play their part of conducting sound investigations to enhance convictions and accountability.
The next DPP must engage the Kenya Law Reform Commission, Parliament, Constitutional Commissions, civil society and other stakeholders to start a process of reviewing problematic criminal provisions in the Penal Code.
Writer is Senior Legal Officer – ARTICLE 19 Eastern Africa [email protected]