Does DCI have legal powers to start and sustain a criminal prosecution?

A long-running supremacy war between the DPP and the DCI culminated in the High Court, which pronounced itself on the matter this month. 

Justice George Odunga ruled that the Directorate of Criminal Investigations (DCI) has no powers to institute any criminal charges unless approved by the Office of the Director of Public Prosecutions (ODPP).

But questions remain as to provisions in the law that seem to give him some leeway. So, does the DCI have legal powers, constitutional or statutory, to commence and sustain a criminal prosecution? 

The point of departure for the legal and constitutional question, whether the DCI in contradistinction to the Director of Public Prosecutions has power in law to prosecute criminal offences, must be the Constitution of Kenya, 2010 (“the Constitution”).

A. THE CONSTITUTION

Article 157 (6) (a) of the Constitution provides as follows: The Director of Public Prosecutions shall exercise State powers of prosecution and may- (a) 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.

A number of conclusions can be drawn from this provision: One, the State powers of prosecution, that is to say, the power to institute and undertake all criminal proceedings (except before a court martial) inhere in the DPP. This is the most obvious of the conclusions.

Two, by use of the auxiliary verb “shall”, the DPP not only has the constitutional power but is equally under a mandatory constitutional duty to exercise powers of criminal prosecution subject to the constitutional limitations;

Three, the powers of prosecution are State powers, meaning that they are exercisable by the State. In Article 260 of the Constitution, the “State” is defined as “the collectivity of offices, organs and other entities comprising the Government of the Republic of Kenya”;

And fourthly, by necessary implication (and applying a purposive interpretation of the Constitution), it is strongly argued that by exercising the State powers of prosecution (as a constitutional power and mandatory constitutional duty, i.e., mandate), the DPP is the representation and embodiment of the State (the “State” here being “the collectivity of offices, organs and other entities comprising the Government of the Republic of Kenya”) in the exercise State powers of prosecution.

This, therefore, necessarily ousts the exercise of such powers by any other State officer, holder of a State office, or State organ. In other words, if the DCI or any other State officer were to purport to exercise State powers of prosecution, then they could not properly, lawfully and constitutionally invoke the name of the State in doing so, and their acts would be tantamount to a usurpation of the DPP’s constitutional mandate.

To drive this point further home, we note that Article 157(9) of the Constitution provides that: The powers of the Director of Public Prosecutions may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

In the ordinary sense, this means that the DPP’s powers may be exercised by subordinate officers. Applying the literal rule, this means officers under the DPP’s authority or control, within the ODPP, given that a ‘subordinate’ is ordinarily a person under the authority or control of another person within the same organisation. This would therefore exclude the DCI as he is not a person within the office of the DPP.

Even when the DPP’s State powers are delegated to subordinate officers, the officers require the DPP’s general or special instructions to act. It is therefore antithetical to Article 157(9) of the Constitution for any person to exercise the State powers of the DPP without general or special instructions from the DPP himself.

From the foregoing and given the vast powers given to the DPP by Article 157(6)(b) and (c) to take over and continue any criminal proceedings (other than before a court martial) and to discontinue such proceedings, it is amply clear that the intention of the drafters of the Constitution was to clothe the DPP with exclusive powers of prosecution, exercisable by him and available to others only through his own delegation or ceding of his powers.

Before considering relevant legislation, it is important to note that under Article 157(4) of the Constitution, the DPP has “power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct”, which requires the Inspector-General to comply with any such direction.

Thus, while the DPP and the Inspector-General (and the DCI) work in different State institutions, the Inspector-General is subordinate to the DPP, in the scheme of things.

Needless to say, the DCI, being himself a subordinate of the Inspector-General, is also the DPP’s subordinate. This distinction is important when it comes to considering the functions and powers of the DPP in the Office of the Director of Public Prosecutions Act, No. 2 of 2013 (“the ODPP Act”).

B. OFFICE OF THE DPP ACT

The object of the ODPP Act as stated in its Preamble is to give effect to the provisions of Articles 157 (and 158- which is not directly relevant to this opinion) of the Constitution.

Section 3 of the ODPP Act then pointedly states that the purpose of the Act is to give effect to the DPP’s constitutional mandate, particularly the mandate to “exercise the State powers of prosecution” under Art. 157(6) of the Constitution. An ordinary dictionary definition of the word ‘mandate’ is ‘an official order or commission to do something’.

Black’s Law Dictionary defines the word ‘mandate’ as “a written command given by a principal to an agent.” In this sense, the DPP carries out his constitutional mandate as an agent of the people of the Republic of Kenya (the principal) in exercise of their sovereign will, through the structures contemplated in Article 1(3) of the Constitution.

Section 2 of the ODPP Act defines “Investigative Agency” in relation to public prosecutions as the National Police Service, Ethics and Anti-Corruption Commission, Kenya National Commission on Human Rights, Commission on Administration of Justice, Kenya Revenue Authority, Anti-Counterfeit Agency or any other Government entity mandated with a criminal investigation role under any written law.

Clearly, then, the contemplation of legislation is that the National Police Service is an investigative agency “mandated with a criminal investigation role”. A fortiori, the Directorate of Criminal Investigations, being a subordinate unit responsible to and dependent upon the National Police Service, is mandated with a criminal investigation role. It is important to bear in mind the legal definition of the term ‘mandate’ in this regard.

More importantly, although Section 2 of the ODPP Act does not define a “prosecutorial agency”, it defines “prosecution” as “a prosecution under the jurisdiction of the Director, a proceeding respecting any offence, the prosecution or prospective prosecution which is under the jurisdiction of the Director and related to such a prosecution or proceeding and includes extradition proceedings and any appeal, revision or other proceeding related thereto”. This is in fact a mere expounding of what the State powers of prosecution pursuant to Article 157(6) of the Constitution entail.

The necessary implication of this definition of ‘prosecution’ is that prosecutions (except those before a court martial) are “under the jurisdiction of the Director” and that proceedings respecting any offence, or respecting the prosecution or prospective prosecution under the jurisdiction of the Director and related to such prosecutions or proceedings are themselves also prosecutions “under the jurisdiction of the Director”.

In the same Section, the term “prosecutor” means a person appointed under Section 29 and 30 of the ODPP Act as a prosecutor, and includes private prosecutors. This effectively means that the term “prosecutor” includes both public and private prosecutors.

Section 2 of the ODPP Act also defines a “public prosecutor”. This is the DPP and such other persons exercising the delegated powers of the Director under Article 157(9) of the Constitution. Thus, the power exercised by a public prosecutor has to be delegated power. A public prosecutor therefore has no ‘self-starting’ or ‘inherent’ power to act.

Section 29(1) of the ODPP Act provides that the DPP may appoint any qualified person to prosecute on his or her behalf. This means, firstly, that the power to appoint public prosecutors inheres in the DPP. Secondly, by necessary implication, it means that one cannot impose oneself as a public prosecutor but can only act as such prosecutor after appointment by the DPP.

Section 29(3) of the ODPP Act is to the effect that a public prosecutor appointed under Section 29(1) of the Act is responsible to the DPP and is bound to comply with all guidelines and instructions issued by the Director in respect of prosecutions.

The policy behind entrenching a subordinate/superior relationship in the Act is to ringfence the DPP’s authority, constitutional and statutory duty, and autonomy in the exercise of his State powers of prosecution.

Lastly, it is necessary to consider carefully and in detail the purport of Section 28 of the ODPP Act, which relates to private prosecutions. Section 28(1) provides that “notwithstanding any provision under this Act or any other written law, any person may institute private prosecution.”

Section 28(2) requires any person who institutes a private prosecution to notify the DPP in writing of the institution of such prosecution within thirty (30) days. Section 28(3) then provides for the undertaking, takeover or discontinuation of private prosecutions by the DPP in accordance with Article 157 (Article 157(6), to be precise) of the Constitution.

The question then arises: is the DCI “any person” for the purpose of Section 28 of the ODPP Act? It is our opinion that this question must be answered in the negative. As observed earlier in this opinion, the DPP is the representation and embodiment of the State in connection with the exercise of the State powers of prosecution, and this would therefore take away the exercise of such powers by the DCI.

One last point on Section 28(1) of the ODPP Act: the statutory permission given to institute a private prosecution is “notwithstanding any provision under this Act or any other written law”. Would this then include a statutory permission to the DCI to commence a private prosecution?

The above question must be answered in the negative. Firstly in this regard, it is argued that it would be contrary to public policy for the DCI, being a State officer, to institute a private prosecution as we have already seen that the constitutional intent was to give the DPP State powers of prosecution (whether in respect of public or private prosecutions).

Secondly, there is a proviso to the fact that any person may institute a private prosecution notwithstanding the ODPP Act or other written law would prima facie be understood under the ODPP Act to include such permission to the DCI as a private citizen, it is argued that on a proper interpretation of Section 2 of the said Act, the recognition of the National Police Service as an ‘investigative agency’ “mandated with a criminal investigation role” ousts the possession of any such power by the DCI, he being an officer of the National Police Service. Moreover, it is apparent that the legislative intent of the ODPP Act (by virtue of Sections 28-31 thereof) is to have both public and private prosecutions overseen by the DPP.

Thirdly and more importantly, the phrase “notwithstanding any provision under this Act or any other written law” does not apply to the Constitution as the construction or interpretation of the Constitution is not the construction or interpretation of a “written law” by virtue of Section 2 of the Interpretations and General Provisions Act.

Section 3 of the said Act also excludes the Constitution from the definition of a “written law”. The effect of these provisions of the Interpretations and General Provisions Act is that the interpretation of the ODPP Act would be immaterial for the purpose of interpreting provisions of the Constitution.

The Constitution would have to be undertaken independently of the interpretation of the ODPP Act, with a purposive approach in mind, and in a manner that promotes the purposes, values and principles of the Constitution, advances the rule of law, and contributes to good governance, as contemplated by Article 259(1)(a) (b) and (d) thereof.

Fourthly, the general position with regard to private prosecutions in Kenya is that they are instituted by an aggrieved party, and this is the case in many jurisdictions that follow the English common law tradition.

It will be noted from Sections 29, 30 and 31 of the ODPP Act that the DPP may appoint or engage the services of any qualified person- either an officer subordinate to him or a private legal practitioner- as a public prosecutor. In either case, the Act contemplates that that prosecutor would have to take instructions issued by the DPP. In short, any public prosecutor would have to be responsible to the DPP and subject to his instructions.

Section 23(1) of the ODPP Act is perhaps the clearest indication that the DCI cannot prosecute criminal offences. The subsection provides as follows: Notwithstanding the provisions of any other law, it shall be the function of the Director to:

(a) decide to prosecute or not to prosecute in relation to an offence;

(b) institute, conduct and control prosecutions for any offence;

(c) carry out any necessary functions incidental to instituting and conducting such criminal prosecutions; and

(d) take over and conduct a prosecution for an offence brought by any person or authority, with the consent of that person or authority.

The above provision means that the DCI has no power to decide whether or not to prosecute, and he also cannot institute, conduct or control a prosecution. He is also not empowered to conduct any functions incidental to the institution or maintenance of a prosecution.

It appears however that where the DPP wishes to take over a prosecution, he would need the consent of the person or authority then conducting the prosecution. It is argued that this situation would only occur in connection with a private prosecution instituted under Section 28(1) of the ODPP Act.

In Section 27 of the ODPP Act, it is provided that “a public officer, State officer or State organ shall cooperate with the Director in the exercise of his or her powers and discharge of functions under the Constitution, this Act or any other written law…”.

The provision goes on to, inter alia, require compliance with the lawful directions of the DPP by such persons or organs. While it is arguable that ‘requirement of compliance with the lawful directions of the DPP’ was primarily intended to achieve cooperation by public officers and Government organs in situations where there was obstruction or indifference to cooperation, it is our opinion that the compliance requirement could be invoked to require the DCI to cease and desist from prosecuting where he attempted to do so in excess of his powers.

Lastly regarding the ODPP Act, one notes that the wording of Section 24(1) implies that the DPP can only take over a prosecution before a magistrate or an Appeal before the High Court. The proceedings taken over by the DPP would be proceedings that would have been “instituted or undertaken by another person or authority”.

By necessary implication (by reason of the use of the word “magistrate” as opposed to “Judge”), it appears that those proceedings would exclude prosecutions before the High Court and Appeals to the Court of Appeal. This then means that High Court trials and proceedings before the Court of Appeal can in law only be instituted by the DPP. Section 24(1) of the ODPP complements Section 88(1) of the Criminal Procedure Code (“the CPC”), which I shall discuss later in this opinion.

C. THE NATIONAL POLICE SERVICE ACT

It is noteworthy that: One, under Section 29(8) of the National Police Service Act, No. 11A of 2011 (“the NPS Act”), the DCI is responsible to the Inspector-General in the performance of the functions and duties of his office; and

Two, under Section 29(9) of the Act, the DCI’s duties include implementing the decisions of the Inspector-General in respect of the Directorate of Criminal Investigations and the performance of such other duties as may be assigned by the Inspector General, the Commission, or as may be prescribed by this Act, or any other written law.

The duties and functions of the DCI are therefore well spelt out in the NPS Act, and do not include any prosecutorial functions. It is arguable that for the DCI to purport to exercise powers that he does not have in law would be ultra vires and would also be punishable criminally as an abuse of office under Section 101 of the Penal Code.

The purported exercise of such powers would also no doubt grossly embarrass the office of the Inspector-General.

D. THE CRIMINAL PROCEDURE GUIDE

Section 85(1) of the CPC provides that the DPP, by notice in the Gazette, may appoint public prosecutors for Kenya or for any specified area thereof, and either generally or for any specified case or class of cases.

Section 85(2) then provides that the DPP may, by writing under his hand, appoint an Advocate of the High Court or person employed in the public service to be a public prosecutor for the purposes of any case.

Lastly, Section 85(3) provides that every public prosecutor shall be subject to the express directions of the DPP.

What is noted from all these three provisions is that they reinforce the fact that the power to appoint public prosecutors inheres in the DPP, and that such prosecutors may be drawn both from the public service and from private legal practice. More importantly, the provisions underscore the fact that public prosecutors are subject to the DPP’s instructions.

Earlier in this opinion, I made reference to Section 88(1) of the CPC, when considering Section 24(1) of the ODPP Act. Section 88(1) of the CPC provides that “a magistrate trying a case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorised by the Director of Public Prosecutions in this behalf shall be entitled to do so without permission.”

Two fundamental points arise from the above provision. First, only a public prosecutor or other officer generally or specially authorised by the DPP can conduct a criminal prosecution without requiring the permission of a magistrate.

In other words, a private prosecutor would have to get the magistrate’s permission to conduct a prosecution and, it is submitted, this would be in addition to having complied with the provisions of Section 28(2) of the ODPP Act, which require a private prosecutor to notify the DPP of a prosecution within thirty (30) days of its being instituted.

The second point is that the CPC contemplates that the conduct of criminal prosecutions by persons other than the DPP (and those prosecuting through his delegated authority) can only take place in the magistrates’ courts. This effectively means that offences triable in the High Court can only be tried by the DPP.

E. THE PRIVATE PROSECUTIONS BILL, 2007

In passing, it is perhaps useful to note that there was a Bill of Parliament entitled The Private Prosecutions Bill, 2007 during the regime of the now repealed Constitution.

Although the Bill was not enacted into law, it is worth noting that it defined a “private prosecution” as any prosecution commenced by any person other than or on behalf of the Government. Conversely, it defined a “public prosecution” as a prosecution commenced by or on behalf of the Government or a public body.

Drawing on the reasoning behind the Bill, it would appear that public prosecutions are, or ought to be understood to be, prosecutions by the Government or by public officers, organs and institutions on its behalf. Applying this reasoning within the context of the (2010) Constitution, a prosecution by the DCI would not pass the “public prosecution” test, as it would not have been commenced by the Government, or by a public body on its behalf.

F. CASE LAW

Even in situations where there is occasion for the commencement of a private prosecution, there is a dearth of authorities suggesting that a person seeking to institute a private prosecution would have to demonstrate certain matters (see, for instance, Frandik Nyamwaro Ogora v. Elkanah Obwaya Nyandika & 2 others [2018] eKLR, Shamsher Kenya Limited v. Director of Public Prosecutions & another [2017] eKLR, Floriculture International Limited & Others v. The Attorney General Nairobi High Court Miscellaneous Civil Application No.114 of 1997, and Isaac Oluochier v. Stephen Kalonzo Musyoka & 217 Others, Nairobi High Court Petition No.339 of 2013).

Such a person would, for instance, have to establish that he had made a complaint to the police and that he accorded reasonable opportunity for the police to investigate the case. He would also have to show that the DPP was seized of the case but had declined to institute or conduct criminal proceedings, and that the failure by the DPP to prosecute was culpable, unreasonable and without any legally justifiable reason.

Additionally, he would have to demonstrate that unless the suspect was prosecuted there was a likelihood of a failure of public and private justice, and that the person instituting private prosecution had suffered special, exceptional and substantial injury or damage that was personal to him and was not motivated by malice, politics or some other ulterior consideration devoid of good faith.

Finally, he would have to show that there were demonstrable grounds that grave social evil would occur if (the police and) the DPP acted capriciously, corruptly and in a biased manner, and that the only remedy available was to grant leave to the aggrieved party to institute a private prosecution.

It is our opinion that a (private) prosecution purportedly instituted by the DCI would fail the requisite test for some of the above grounds. Firstly, the DCI would have to make a complaint to the police, essentially making a complaint to himself. This, per se, would be challengeable on the ground of the fundamental principle of natural justice of not being a judge in one’s own cause, nemo judex in causa sua.

Secondly, the DCI, being the intended ‘private prosecutor’, would need to allow the police to investigate. Again, the same natural justice principle would come into play.

Thirdly, he would have to demonstrate that the DPP had declined to institute or conduct criminal proceedings, itself an uphill task in view of the fact that by virtue of Section 23(1) of the ODPP Act, it is the function of the DPP to, inter alia, decide to prosecute or not to prosecute in relation to an offence and to institute, conduct and control prosecutions for any offence. Additionally, the DCI would have to show that the alleged failure by the DPP to prosecute was culpable and unreasonable, and not legally justifiable.

Fourth, the DCI would require to show how he had suffered special, exceptional and substantial injury or damage that was personal to him (i.e., injury or damage that was beyond what the ordinary person not directly a victim of, or otherwise personally affected by, the alleged offence would have suffered), and was not motivated by malice, politics or some other ulterior consideration devoid of good faith.

On this last point, it is useful to quote Fulford, L.J., in a case involving a Kenyan national. In that case, Ketan Somaia v. Regina (on a Prosecution by Murli Mirchandani) Neutral Citation Number: [2017] EWCA Crim 741, Judge Fulford, agreeing with Mr. Talbot Q.C. for the Crown, said as follows: “private interests are, to some degree, almost invariably inherent in the bringing and conduct of private prosecutions.”

He then went on to quote Sir Richard Buxton in an article entitled The Private Prosecutor as a Minister of Justice, [2009] Crim LR 427, at p.427 in which he latter had said that “a private prosecutor will almost by definition have a personal interest in the outcome of a case“.

Indisputably, virtually all the above requirements for bringing a private prosecution have a fairly high threshold that would be difficult for the DCI to attain.

G. PROSECUTORIAL DISCRETION AND CONCLUSION

Having reached the conclusion that the DCI would not be constitutionally orstatutorily empowered to commence a criminal prosecution, it is our opinion that any such prosecution commenced by him would be not only an abuse of the legal process, but would be inherently unjust and an afront to the fair trial of an accused person.

We base this opinion firstly on the argument that only a legitimate prosecutor who is validly in office would be able to comply with the tenets of a fair prosecution process as he would be guided by the constitutional and statutory mandate that empowers him to act. Secondly, it would be expected that the DCI would know that he lacks the constitutional and statutory basis for commencing a criminal prosecution.

This necessarily points to the fact that a prosecution commenced by him would be actuated by bad faith. An act done mala fides cannot result in bona fide consequences or outcomes.

The law relating to private prosecutions varies from country to country, particularly due to the existence of a fused prosecution and investigatory service unlike Kenya where the DPP conducts prosecutions and other investigative agencies (in this case, the DCI) would conduct investigations.

These nuances and dissimilarities make it beyond the scope of this opinion to do an in-depth study into the powers of investigative agencies (or non-prosecutorial agencies, for that matter) to conduct criminal prosecutions.

All the same, one may mention that in Singapore, for instance, the general rule is that it is the State that prosecutes criminal offenders. Indeed, many Commonwealth jurisdictions approach criminal prosecution in this manner. The Attorney-General in these countries is the Public Prosecutor, with power to direct and control criminal proceedings including, specifically, the power to institute, conduct, and discontinue such proceedings.

However, the Singaporean Attorney-General, just like that in many other countries does not possess the exclusive right to prosecute, and in appropriate situations, other government agencies or even private individuals may institute prosecutions. In Mauritius, just like in Singapore, both individuals and private prosecutions by statutory bodies may bring private prosecutions. However, there is no provision by the State Constitution or by legislation for the right to institute a private prosecution, and this leaves it open-ended as to the circumstances in which such prosecutions may be instituted, and with what result.

In Canada, like in Kenya, the power to take over privately instituted proceedings is real. Section 11(d) of the Crown Attorineys Act, 1990 requires the Crown Attorney to “[w]atch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition.”

In summary, even where the power to privately prosecute might exist, the law finds it highly desirable for the DPP to institute, undertake, conduct and continue and, where necessary, take over criminal prosecutions, and there is little (if any) scope for other persons or bodies to institute and sustain prosecutions in the absence of the DPP’s concurrence.