DPP Noordin Haji has the Decision to Charge suspects not police-Court rules

By Missing Voices Reporter

NAIROBI, Kenya, March 25, 2022

According to The National Council for Law Reporting, the Criminal Procedure Code is simply an Act of Parliament with provisions for the procedure to be followed in criminal cases.

Justice Weldon Korir delivered the judgement virtually from a Kabarnet High Court on March 24, 2022, where he dismissed seventeen prayers sought through a petition by activist Okiya Omtata.  The petitioner sought the court’s declaration that the principal decision to charge or not to charge a suspect with a crime and registering such a charge in court is the culmination of and an integral part of the investigative process and it is strictly the exclusive mandate of the National Police Service.

The case was initially registered in Nairobi at the Constitution and Human Rights Division in Milimani in 2020 before Justice Korir was transferred to Baringo County in mid-2021 as the presiding judge at Kabarnet and Kapenguria.

Omtata is the Executive Director of Kenyans for Justice and Development (KEJUDE) Trust. He suffered a major blow during the judgement that nullified his petition in its entirety.

In petition number E266 of 2020, the activist on September 3, 2020, moved to court listing ODPP as the respondent, Inspector General of Police as the 1^st interested party while Attorney General, 2nd interested party. International Commission of Jurists Kenya was listed as Amicus Curiae.

Omtata had also urged the court to rule that the DPP does not have any mandate in the criminal investigation process, and has no capacity in law to call for police files before formal charges are laid in a court.

Omtata also asked the court to annul and quash the DPP’s “Guidelines on the Decision to Charge, 2019”.

He also wanted the court to declare that under the laws of Kenya, there is no provision or power for prior screening of police files and suspects by the DPP before the police can file charges with the court among other prayers.

DPP submission:

In part of his submission on November 26, 2020, Haji told the court that the petition is veiled as public interest litigation in order to cover the petitioner’s motive for personal gain, private profit and other oblique considerations.

The DPP also submitted that the petitioner is not a member of any of the investigative agencies that may have to interact with the 2019 DPP Guidelines on Decision to Charge and is either on a private profiteering exercise or is hell-bent on creating unnecessary confusion in the criminal justice system. Haji then urged the court to find the petition without merit and dismiss it in limine.

In what might have won the heart of the Kabarnet based court, Haji submitted that the role of the National Police Service is limited to the investigation as gleaned from sections 24,27and 35 of the National Police Service Act.

“The DPP refers to Section 49 of the National Police Service Act which requires a police officer who has reason to believe that a violation of law has occurred to report the matter to the superior authorities and where necessary other appropriate authorities vested with reviewing or remedial power. Based on the cited provision, the DPP submits that he is one of the appropriate authorities as he assesses the evidence presented by the investigative agencies to determine whether to initiate criminal proceedings.” Haji submitted.

Haji said agreeing with the petitioner that the police have the mandate to check the prosecution in making the decision to charge would violate Article157 (10) which insulates him from interference by any person or authority in the exercise of his prosecutorial powers.

JUDGEMENT:

In his analysis, Justice Korir concluded that the decision to charge is not vested in the 1^st Interested Party but the Respondent as stipulated in the Constitution, the ODPP Act and the National Police Service Act.

“The ODPP Act, 2013 and the National Police Service Act, 2011 were passed after the promulgation of the Kenyan Constitution, 2010 and they, therefore, supersede any provision of the Criminal Procedure Code, Cap.75 which may give the impression that police officers are the persons to draft charge sheets and present them directly to courts. I, therefore, disagree with the Petitioner’s argument that police officers or investigative agencies have the authority to draft charge sheets and present them to courts thereby by-passing prosecutors. In my view, the petitioner’s arguments are based on an erroneous interpretation of the Constitution and the applicable laws,” Justice Korir decided.

Conclusion:

“From the discussions in this judgement, it becomes obvious that the petitioner has not established any ground for grant of any of the orders sought in the petition. The petition, therefore, fails in its entirety.” Korir.

The court decision  on Omtata’s orders to award costs:

“This being a matter of public interest, I direct each party to meet own costs of the proceedings.

The principle in support of my decision on the issue of costs is found in Director of Public Prosecutions v Attorney General &12 others [2022] KECA397 (KLR) where the Court of Appeal held that: It has become common that in cases involving public interest and aimed at furthering the rule of law, costs are usually not awarded.

Condemning an unsuccessful party to pay costs in genuine public interest litigation can become a deterrent. More likely than not, many a party would hesitate to institute suits in defence of the Bill of Rights and the Constitution for fear of being condemned to pay costs.” Korir said.

The court summarized, ‘’The summary of it all is that the petition dated 3^rd September, 2020 is found to be without merit and dismissed with no order as to costs.”