Report On The Audit and Performance of The Office of Director of Public Prosecutions and The Holder of The Office From August 27

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International Center for Policy and Conflict
INTERNATIONAL CENTER FOR POLICY AND CONFLICT
Ambank House 13th Floor, Utalii Lane off University Way

P.O.Box 44564-00100. Nairobi Kenya
A REPORT ON THE AUDIT AND PERFORMANCE OF THE OFFICE OF DIRECTOR OF PUBLIC
PROSECUTIONS AND THE HOLDER OF THE OFFICE FROM AUGUST 27, 2010 TO AUGUST
27, 2012

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Table of Contents
ABBREVIATIONS ................................................................................................................................................... 3
ACKNOWLEDGEMENT .......................................................................................................................................... 4
EXECUTIVE SUMMARY ......................................................................................................................................... 5
1.0.
BACKGROUND .......................................................................................................................................... 7
2.0.
Appointment of the DPP ........................................................................................................................... 8
2.1.
Powers and Functions of the DPP ......................................................................................................... 8
2.2.
Reforms in the ODPP .......................................................................................................................... 10
2.3.
Funding .............................................................................................................................................. 13
2.4.
Staff.................................................................................................................................................... 15
3.0. INVESTIGATIONS AND PROSECUTION OF CASES ARISING FROM THE 2007/2008 POST-ELECTION
VIOLENCE........................................................................................................................................................... 17
4.0.
THE NATIONAL PROSECUTION SERVICE BILL, 2012 .................................................................................. 20
5.0.
LEGAL FRAMEWORK ............................................................................................................................... 22
6.0.
OBSERVATIONS AND RECOMMENDATION .............................................................................................. 23

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ABBREVIATIONS
AG
Attorney General
GJLOS
Governance, Justice, Law and Order Sector
ICPC
ODPP
Office of the Director of Public Prosecutions
PEV
Post Election Violence

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ACKNOWLEDGEMENT
I wish to acknowledge the following people and institutions for their assistance in the course of
research and preparation of this report: Standard Group Library, ICPC resource center and MultiAgency Task Force chairperson Ms Dorcas Oduor.

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EXECUTIVE SUMMARY
This report traces key developments in Kenyas Office of the Director of Public Prosecutions (ODPP)
since the office was established as an independent entity following the promulgation of the
Constitution of Kenya 2010.
While the DPP acquired the current status soon after the promulgation of the constitution on August
27, 2010 this reports cover in particular, the period between July 1, 2011 when the current substantive
Director of the Public Prosecutions (DPP) was sworn into the office, up to August 27, 2012, the second
anniversary of the new constitution, which is slightly more than a year after the office became
operational.
Attention has been focused on this office given its important role in the entire criminal justice system,
the rule of law and administration of justice. The Directorate of Public Prosecutions is one of the
organs under the Governance, Justice, Law and Order Sector (GJLOS). Reforms in Kenyas prosecutorial
section have been a critical public concern since independence in 1963.
But of particular importance in this report is the performance of the DPP in dealing with the backlog of
criminal cases, which arose as an aftermath of the December 2007 general elections. The events,
commonly referred to as the Post-Election Violence (PEV) are a key determinant in the trend that the
country has taken, including the enactment or a new, robust constitution as well as major reforms in
the judiciary and the executive.
The DPP as newly constituted carried twin mandates of directing criminal investigations and directing
criminal prosecutions. They two roles place DPP as a key link between the executive and the judiciary.
In particular the office stands in between the two arms of the government in ensuring that justice is
achieved in all the PEV cases and that similar incidents are prevent from occurring in the future. Its in

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that light that we have undertaken the review and analysis of some of the reforms in the DPP, as an
institution mandated to stamp out impunity in Kenya.

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1.0. BACKGROUND
Before the enactment of the new constitution in 2010, all the public prosecutions in Kenya were
conducted under the auspices of the Attorney Generals office. The prosecutions were in particular
vested on the Department of Public Prosecutions under the AGs Chambers, headed by a Director of
Public Prosecutions. That arrangement was similar to many others especially in the commonwealth
countries including the United Kingdom.
However, due to what appeared to be a conflict of interest within the AGs office and abuse of
prosecutorial powers over the years, constitutional changes were proposed and effected in this regard.
The position of Director of Public Prosecutions (DPP) was established by Article 157(1) of the
Constitution of Kenya 2010, as an independent office, making Kenyas DPP one of the most unique in
the world. Its one of the State described under 260 of the Constitution.
Under Article 157(2) the DPP is nominated by the President, approved by the National Assembly and
then appointed by the President. The DPP must have same qualifications as those required of a judge
of the High Court.

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2.0. Appointment of the DPP

Before the promulgation of the constitution on August 27, 2010, the office of the DPP was occupied by
Mr Keriako Tobiko having been appointed by the President Mwai Kibaki in May 2005. The Attorney
General Hon. Amos Wako relinquished the authority of the office to Mr Tobiko on an acting
arrangement awaiting appointment of the substantive DPP.
On January 28, 2011 President Kibaki announced the appointment of Kioko Kilukumi (among other
appointments) as the new DPP. This appointment was challenged in the High Court and in various
other quarters on its constitutionality and the President reversed it. The position of DPP was advertised
in the public and Tobiko was among the applicants for the post.
Throughout the interview Mr Tobiko had to defend himself against allegations of corruption,
incompetence and lack of commitment to reforms. The ODPP eventually became operational on July 1,
2011 with the appointment of Tobiko as the DPP under the new constitution.
2.1.
Powers and Functions of the DPP
Article 157 of the constitution provides the DPP with powers to institute criminal investigations and to
conduct criminal prosecutions, which are two key components in criminal justice system.
The DPP is mandated to:
Exercise prosecutorial powers by: -
Instituting and undertaking criminal proceedings against any person. These proceedings may be
instituted before any court other than a court martial
Taking over and continuing any criminal proceedings instituted or undertaken by another
person or authority; and
Discontinuing at any stage before judgment is delivered any criminal proceedings

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Direct the Inspector-General of the National Police Service to investigate any information or
allegation of criminal conduct
Ensure due regard to the public interest, the interest of the administration of justice and the
prevention and avoidance of abuse of legal process.
The Inspector-General must comply with such directions, which makes the ODPP different from many
others. In the UK, the DPP who is the head of the Crown Prosecution Service (CPS) is appointed by and
answerable to the Attorney General for England and Wales. The DPP has no authority to direct the
police but merely to advice when and if asked to. 1
Other functions of the Kenyan DPP include:
(i) To advise the police on possible prosecutions
(ii) To undertake public prosecution of cases forwarded by all investigation agencies including the:
Police, Kenya Anti-corruption Commission, Criminal Investigations Department, Banking Fraud
Investigations Units, and cases taken over from private prosecutors.
(iii) To represent the State in all criminal cases, criminal applications and appeals.
(iv) To advise Government Ministries, Departments and State Corporations on matters pertaining to
the application of criminal law.
(v) To expound and disseminate the National Prosecution Policy and the Code of Conduct for
Prosecutors.
(vi) To monitor the training, appointment, and gazettement of Public Prosecutors in Statutory
Corporations.
(vii) To address parliamentary questions relating to administration of criminal justice.
(viii) To address complaints raised by members of the public, watchdog bodies and other institutions.
Crown Prosecution Service website: www.cps.gov.uk

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(ix) To undertake other administrative roles relating to efficient and effective administration of
criminal law in the country. 2
2.2.
Reforms in the ODPP
Reforming the prosecutorial sector is critical under the new constitution and in the administration of
justice. The DPP has a well organized website as a tool for reaching the wider society, explaining its
programs, vision and mission and for seeking a feedback on its performance. It has a Service Charter
setting out its commitments to the public.
In March 2012 the DPP finalised a detailed Strategic Plan for the period 2012 to 2015 covering its
vision, the mission and core values, its role in the implementation of Vision 2030, resource mobilization
among other aspirations. The Plan is tailored to transit from the department under the AGs office to
the new DPP.
The DPP has also set out a comprehensive service charter committing themselves to:
Undertake speedy, efficient and effective prosecutions of all criminal cases in court
To advise the police and all government departments professionally and efficiently
To respond to client inquiries, and complaints in timely manner
To treat clients concern with confidentiality and give it the urgency it deserves
In its reform strategy, the DPP has identified both its internal strength and weaknesses and external
challenges.
Strength
The strength is drawn from the constitution, a degree of autonomy and independence, clear identity,
existing experience and structure as a department in the AGs office, established central facilitation
ODPP website: www.odpp.go.ke
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and network of offices across the country, Code of Conduct and Prosecution policy, centrality and
significance in the Criminal Justice System.
Weaknesses
Understaffing, Poor leadership and management skills,
Lack of succession management plans,
Bureaucratic processes and procedures,
Lack of financial, administrative and operational independence, Inadequate and unequal

infrastructure and resources,
Non-competitive terms and conditions of service,
Lack of coaching and mentorship Programme, I
Inadequate budgetary allocation, Weak/in-effective performance management, system,
Lack of a monitoring and evaluation, framework,
Inadequate professionalization of prosecution services,
Heavy workload,
Weak collaboration and coordination with, stakeholders,
High level of staff attrition,
Lack of staff retention, strategy,
Poor work life balance,
Limited adoption of Information and Communication Technology,
Lack of criminal law reform mechanism to, continuously update the various laws that impact
prosecution services,
Lack of a comprehensive and networked complaints handling mechanism,
Poor work ethics and weak organisational culture.

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External Threats
The office has identified its external threats as among others:
Unpredictable political goodwill.
Politicization and ethnicization of the fight against crime.
Bureaucratic systems and procedures.
Better terms and conditions of service by comparative organizations.
Existence of conditional ties from development partners.
Escalation and complexity of emerging crime.
Rapid advancement in ICT
Competition for limited resources.
Challenges and capacity constraints within other criminal justice agencies.
Weak inter-agency collaboration and cooperation.
Delay in review and modernization of criminal and penal laws.
Expanded liberties under the new Constitution
The office lists its priorities under the Plan as:
- Restructuring and reform of DPP in line with the Constitution.
-
Professionalization of prosecution services.
Witness and victim care and support.
Decentralization of prosecution service to promote access to justice
Enactment of enabling and facilitative legislation for the DPP.
Review and revision of key prosecutorial instruments.
Automation and modernization of processes and procedures.
Capacity Building and staff development.

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Rebranding and repositioning of the DPP.
Promotion of Inter-and Intra- Agency cooperation and collaboration.
Promotion of International Cooperation in criminal matters.
Promotion of strong organizational culture.
Improvement in the criminal justice system.
Performance management system.

Monitoring and evaluation.
The DPP has embarked on the review of its prosecution manual for economic and international
crimes.3 Its also reviewing the National Prosecution Policy and the training manual.
2.3.
Funding
Financial constrain due to low budgetary allocations are said to be the main obstacle to all other
reforms in the ODPP.
According to its 2012-2015 Strategic Plan, the ODPP has projected financial requirements estimated at
Sh18.89 billion. But the availability of the resources is the biggest challenge to this new office.
During the 2012/2013 financial year the ODPP was allocated Sh1.08 billion (about 11.9 million USD)
down from the Sh3.28 billion (about 35.7 million USD) it had requested Treasury out of the Sh65 billion
allocated to the Governance, Justice, Law and Order Sector (GJLOS).4
Yet the KSh 3.8 billion was even less that the KSh 4.5 billion (about 47.5 million USD) that the DPP had
stipulated in its strategic plan for about 16 key undertaking.
The Star newspaper, Kenya, August 27, 2012 page 4.
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The DPP was quoted on June 24, 2012 saying the underfunding of his office could push the country to
the brink of criminal justice crisis. 5 He expressed fears that the office would not recruit prosecutors in
the 2012-2013 financial years due to the shortage of funds.
The DPP has appeared before the Parliamentary departmental committee on Justice and Legal Affairs
and pleaded for more budgetary allocation saying the shortfall would force them to scale down on key
projects and would be unable to deliver on its mandate properly.
He argues that the new office lacks even the most basic equipment and facilities to enable it enhance
efficiency and effectiveness in service delivery making it difficult for the office to carry out its duties
efficiently especially in handling emerging crimes.
He was quoted as having told the committee, The inability to carry on the above
programmes/projects will very significantly jeopardise the implementation of the necessary reforms
within the DPP for effective and efficient delivery of prosecution services,
In the next financial year the DPP will be requesting KSh 5.6 billion (..USD) according to its Strategic
Plan. The figure will then reduce to KSh 4.2 billion (about 47 million USD) in 2014/2015 to 3.6 billion in
2015/2016 financial years.
The DPP hopes to get the bulk of the resources from the Exchequer but also plans to seek financial
assistance from development partners and Public Private Partnership initiatives.
The DPP has undertaken to negotiate with donors and other development partners for additional
funding. It has also pledged to ensure there is accountably and transparency in the utilization of the
available funds by directing resources to Plan priorities to ensure efficiency and effectiveness.
The Standard newspaper, Kenya
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2.4.
Staff
One of the biggest problems faced by the DPP and arising directly from the low budgetary allocations is
shortage of staff. In February 22, 2012 Tobiko was reported in the Daily Nation saying the backlog of
cases in courts was due to shortage of State Counsels and blamed it on lack of funding.
Currently the number of authorized staff at the DPP is 453 comprising of 132 legal staff and 321c entral
facilitation staff.6 In order to effectively implement the Strategic Plan the DPP proposes that the
optimal staff establishment should be 1291 comprising of 927 legal staff and 364 central facilitation
services staff.
In the year 2012/2013 the DPP needed Sh1 billion to enhance staff capacity, according to the Strategic
Plan. This was the highest allocation of the budgetary vote.
Part of the expansion programmed being undertaken by the DPP is opening offices in all the 47
counties, which require extra staff.7
The DPP has undertaken to recruit and put in place mechanisms including training to retain the best
staff in the market to cater for optimal staffing needs.
The new legal dispensation provides for training to ensure that its offering the best services for the
society.
However the DPP is still grappling with the efforts to establish a Training Institution for its staff. The
office has vetted 295 police prosecutors to be taken over by the office and retrained as prosecutors
and their terms of service restructured.
In April 2012, the Public Service Commission advertised for 65 key positions- from that of Deputy DPP
(three posts) to Prosecution Counsel II (16 posts).
6
7
ODPP Strategic plan 2012-1015

Standard newspaper (ibid) March 6, 2012
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The monthly basic salary scale for the Deputy DPP is set at between Ksh 120,270 and Ksh 180,660. That
of Prosecutions Counsel II then lowest rank of prosecutors is Ksh 30,472 to Ksh 40,835.8
The DPP was also quoted saying his office had set up a pool of external lawyers who would be called in
to handle complex cases on contractual basis.9
The DPP has said that new terms and conditions of service for employees had been developed and only
funds were hampering the service.
8
9
Nation newspapers April 26, 2012

The Star newspaper (ibid) page 4
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3.0. INVESTIGATIONS AND PROSECUTION OF CASES ARISING FROM THE

2007/2008 POST-ELECTION VIOLENCE
Dealing with all the backlog of criminal cases pending from the 2007/2008 Post Election Violence is one
of the biggest challenges for the newly constituted DPP. The heaviest criticism against the DPP is failure
to follow up on the numerous crimes committed soon after the December 2007 General Election. This
is founded on the argument that the current DPP was in office since May 2005 under the AGs office.
During the PEV 1,333 people were killed in different parts o the country and about 350,000 were
displaced.10
On April 20, 2012 the DPP appointed a Multi-Agency Task Force to review, re-evaluate and re-examine
police files related to the PEV.11 The Task Force was to be chaired by the Deputy Director of
Prosecutions Dorcas Oduor. The team comprised of officers from the DPP other departments within
the criminal justice system including the police, Justice Ministry, the Attorney Generals office and the
Witness Protection Agency.
The Task Force was mandated to examine not less than 6,081 police files relating to events that
occurred at the end of 2007 and at the beginning of 2008. It was to determine what crimes may have
been committed and recommend action in each of the cases. It was to undertake the task and prepare
a report for the DPP and the AG within six months.
Part of its mandate was to facilitate prosecution and other alternative dispute resolution mechanisms
including reconciliation, mediation, arbitration and other traditional dispute resolution strategies.
Information obtained by the Task Force from the Police Force indicate that the PEV related cases
reported to the police stations as at March 1, 2012 were 8,869. Out of these, 6,450 had been
10
11
Commission of Inquiry into the Pose Election Violence (CIPEV) of October 2008. Page 346
Gazette Notice No. 5417 of 20th April, 2012
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registered and given Charge Register numbers while the other 2,409 had not been given Charge
Register numbers.
By August 17, 2012 the Task Force had reviewed, re-evaluated and re-examined a total of 4,408 files.12
A detailed data analysis of the PEV related cases reported to the police by March 2012 and those
forwarded to the Task Force at as August 17, 2012 is attached.
The Task Force categorised the alleged offences as:
- General Offences including arson, theft of all kind and malicious damage
- Homicide
- Sexual and Gender Based Violence (SGBV) including rape, defilement and indecent assault (see
attached statement issued by the Task Force on August 17, 2012).
According to Ms Odour the Task Force was reviewing the remaining files for purposes of informing,
keeping data and advising the government on PEV related matters to avoid future atrocities.
Notably there is a major disparity between some of the findings of the task force and the finding of the
Commission of Inquiry into the Pose Election Violence (CIPEV) of October 2008. According to the
commission, 1,133 people died as a consequence of the post-election violence, across the country. 13
A total of 3.561 others suffered injuries inflicted in one way or another.
There were 962 casualties of gunshots out of whom 405 died, representing 35.7% of all the deaths.
Some 117,216 private properties and 491 government properties were destroyed.
According to the Deputy DPP, the cases were investigated under the Penal Code and the Sexual
Offences Act. It was on the evidence available to satisfy the threshold of those two laws that the
12
13
Media statement by the Multi-Agency Task Force issues on August 17, 2012
CIPEV Report page 356
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alleged offences were classified and determination made by the police at to the sustainability of any
prosecutions.
The Task Force, according to the Deputy DPP, is working to broaden the evidence to march it with the
International Crimes Act which domesticates the Rome Statute, in a bid to broaden the culpability of
any suspects that may be identified. The Crime Act has a lower standard of prove and less restriction
than the other two Acts.
The Task Force has also written to other non-state actors including ICJ, Fida to help them in reviewing
the files and its also seeking public recommendations.
But the work of the Task Force is also hampered by limitation of resources according the chairperson.
Though members of the Task Force are drawn from other departments, they are facilitated in terms of
resources by the ODPP, according to the Deputy DPP.
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4.0.
THE NATIONAL PROSECUTION SERVICE BILL, 2012
When the National Prosecution Service Bill, 2012 is enacted into law, the ODPP shall change status
radically, into the National Prosecution Service (NPS).
This Bill, which is already before the cabinet is intended to define the entire prosecutorial sub-sector in
line with the constitution. It makes provisions for the establishment of the National Prosecutions
Service, the independence, organization, management, monitoring, supervision and control of
prosecutions, functions of the National Prosecutions Service, functions and powers of the DPP and
other officers in the Service and matters.
The Bill also seeks to establish the National Prosecution Service Board headed by the DPP, as the body
charged with the recruitment or appointment of staff, promotion, discipline, determination of terms
and conditions of the service, staff welfare among other matters.
The Bill if enacted will allow the ODPP to engage with many other stakeholders in offering
prosecutorial services, which should be exploited. But most importantly it breaks down the powers of
the ODPP in dispensing its responsibilities, which is critical for the success of its work.
The Bill seeks to empower the DPP to obtain any information. Documents or material necessary for
criminal investigations and prosecutions, from any officer in the government or private sector, making
it a criminal offence for any such officer to willfully fail or neglect to comply with the requisition by the
DPP.
The Bill also seeks to establish the key sources of funding for the Service as Parliamentary allocations,
donations and grants among others. It provides that the Service may establish a National Prosecutions
Service Fund for:
(a) Enhancement of the operational capacity of the Service;
(b) The welfare of the personnel of the Service;
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(c) Any activity approved by the national prosecution service convention

The sources of finance for the Fund shall be as follows:
(a) Subventions from the Government,
(b) Grants and donations;
(c) Contributions by the personnel of the Service, and
(d) Any other source as may be approved from time to time by the Director.
The Bill also seeks to open the ODPP for scrutiny by providing that the DPP shall submit a report before
30th of September 30 every year, to the President and the Speaker of the National Assembly on the
performance of the Service during the year that ended on the preceding 30th June
That report shall be laid before the National Assembly by the Speaker within seven days after the
National Assembly first meets, after the Speaker has received the report.
The Bill further seeks to compel the National Prosecution Service to hold an annual convention to
discuss strategic issues involved in Prosecution for the purposes of improving the standards of service
delivery. The convention shall publish an annual public report.
The new law will act retrospectively applying to offences, prosecutions, appeals, revisions and any
other proceedings brought or commenced before its commencement.
The Service shall soon after commencement gradually take over cases from
Government Departments or Authorities which had been allowed to prosecute on behalf of the DPP.
These provisions set out under the Bill, if enacted will make the ODPP substantially accountable to the
people of Kenya.
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5.0. LEGAL FRAMEWORK

With the National Prosecution Service Bill, 2012 yet to get to the floor of Parliament for debate and
enactment the ODPP has no other legal framework to breakdown its constitutional mandate. The
constitution establishes for it the broad working parameters. Alongside the constitution is the National
Prosecution Policy drafted in 2007 when the DPP was still a department in the State Law Office. There
is no legal framework to guide the new office on how to conduct its day-to-day operations, including
how to hire staff and regulate their work, including expenditure and other resource mobilisation.
Apparently, this was not made a priority when the new office was established under the new
constitution.
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6.0. OBSERVATIONS AND RECOMMENDATION

Several sectors in the Criminal Justice system have reformed expansively while in others key changes
are yet to be realised. The ODPP stands in between the two state of affairs The office has undergone
tremendous constitutional changes which has give it autonomy not realised n many jurisdictions.
As the ODPP awaits for the debate on the National Prosecution Service Bill, 2012, its critical for it to
have a clear legal framework that guide the staff and all other partners in transacting with the office.
Its important for the office to spell out clearly how it collects funds from Treasury, employs staff and
spends money. This framework should have been a key priority in the past two years.
Financial constraints appear to be the key obstacle to the ongoing reforms in the ODPP. The twin
responsibilities or function of directing investigations and the subsequent prosecution makes the ODPP
a critical office. Its role starts from the moment the crime is committed to the point at which the final
determination of the trial is made. Its important that the funds channeled to this office are
commensurate with its broad responsibilities.
The office should be funded at this incubation point given that its budget will reduce over the years
depending on how it puts in place key operational components.
Its also critical that the ODPP broadens its cooperation with other sectors especially the civil society
groups undertaking criminal justice and governance programmes so as to gain other forms of support
and assistance essential for its work. This is workable especially in tackling issues related to sexual
violence, child molestation and drug abuse.
The ODPP has identified its main stakeholders as the Judiciary, the Ministry of Justice and
Constitutional affairs, the Kenya Anti-Corruption Commission, the Police and other investigative
agencies, other prosecutorial agencies including immigration, Labour, prisons, Probation and Aftercare
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service and Development partners. Its important that the ODPP considers other local non-state
agencies including the civil society groups as key stakeholders in execution of its mandate.
The sourcing of human resource and expertise from other departments to constitute the Task Force to
review the PEV cases is a good demonstration of how the OPDD can benefit from such synergy with the
government and other partners.
While sourcing for external legal experts to handle complex cases, the ODPP must ensure fairness in
terms of remuneration, for both the consultants and the office full-time employees to avoid lowering
the morale among the staff.
The investigation and prosecution of all the criminal cases arising from the PEV is the crucial test for
the ODPP. The office must rise to that occasion to ensure that justice is meted out for both the
perpetrator and the victims, especially for deterrence purposes.
As indicates earlier, there is a mismatch between the statistics of criminal cases released by the CIPEV
commonly known as the Waki Commission14 and those recorded by the police.
The ODPP must have the police investigate all these cases and align them with the evidence produced
before the Waki Commission. Only when action taken by the ODPP is commensurate with the report,
will justice be seen to have been done.
While the issue of the PEV is emotive and should be thoroughly investigated and conclusively dealt
with, there is the likelihood of legal issue arising as to whether the offences committed during the
2007/2008 period can be tried under the International Crimes Act, which was not in place then.
The circumstances and the environment under which the crimes were committed are similar to those
relating to the cases against four Kenyan suspects facing charges of crimes against humanity at the
14
Kenyan Court of Appeal Judge Hon. Philip Waki chaired the CIPEV.
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International Criminal Court in he Hague, Netherlands. The charges in those four cases have been
confirmed at the Pre-trial stage and the cases are set for Trial starting March 10, 2013. A conviction of
the four suspects would heavily indict the ability of the Kenyan ODPP to stem out injustice and
impunity.
Unlike other institutions such as the Judiciary, the ODPP has not clearly identified itself with majority of
the citizens. One explanation for this is that while as the judiciary is a meting point for all manner of
legal disputes both civil and criminal, the ODPP deals with criminal investigations and prosecutions in
which only a relatively small section of the population falls.
The ODPP must thus get more involved in advocacy work on crime detection and prevention. While as
this is not a mandate under the constitution, the office has responsibility to ensure the rule of law is
promoted in any and every aspect. One of the extended functions of the DPP is to address complaints
raised by members of the public, watchdog bodies and other institutions. This duty should go hand in
hand with offering public education on matters relating to crimes.
There is need for the DPP, to delink its image from that of the unreformed police service. Its common
for the public to view the criminal justice system as one unit, with the consequences that one
institution is associated with poor performance of a completely different institution in the system. The
DPP must make the head start in ensuring that criminal investigations are conducted, without having
to appear to be taking the orders from the police service itself.
The ODPP is still working with the Code of Conduct and Ethic for Public Prosecutors developed in
2007.15 That Code of Conduct and Ethic applied when the DPP was still under the State Law office and
before the new constitution was enacted. Its for that reason that the office has embarked on
reviewing the Code of Conduct alongside other tools of operation. While the code remains
15
ODPP website (ibid)
25

Tel: +254(020) 2219757/0714 838894

Fax: +254 (020) 2223188
substantially relevant in substance, its important for the ODPP to review it in line with the aspirations
of the new status and the new constitution.
26

Report On The Audit and Performance of The Office of Director of Public Prosecutions and The Holder of The Office From August 27

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Report On The Audit and Performance of The Office of Director of Public Prosecutions and The Holder of The Office From August 27

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Ambank House, 13th Floor

Utalii Lane, Off University Way

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

INTERNATIONAL CENTER FOR POLICY AND CONFLICT

Ambank House 13th Floor, Utalii Lane off University Way

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Appointment of the DPP ........................................................................................................................... 8

Powers and Functions of the DPP ......................................................................................................... 8

Reforms in the ODPP .......................................................................................................................... 10

THE NATIONAL PROSECUTION SERVICE BILL, 2012 .................................................................................. 20

LEGAL FRAMEWORK ............................................................................................................................... 22

OBSERVATIONS AND RECOMMENDATION .............................................................................................. 23

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Governance, Justice, Law and Order Sector

International Center for Policy and Conflict

Office of the Director of Public Prosecutions

Post Election Violence

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

2.0. Appointment of the DPP

Powers and Functions of the DPP

Discontinuing at any stage before judgment is delivered any criminal proceedings

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Crown Prosecution Service website: www.cps.gov.uk

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Reforms in the ODPP

To respond to client inquiries, and complaints in timely manner

ODPP website: www.odpp.go.ke

Ambank House, 13th Floor

Tel: +254(020) 2219757/0714 838894

International Center for Policy and Conflict

Understaffing, Poor leadership and management skills,

Lack of succession management plans,

Bureaucratic processes and procedures,

Lack of financial, administrative and operational independence, Inadequate and unequal

Non-competitive terms and conditions of service,

Lack of coaching and mentorship Programme, I

Inadequate budgetary allocation, Weak/in-effective performance management, system,

Lack of a monitoring and evaluation, framework,

Inadequate professionalization of prosecution services,

Weak collaboration and coordination with, stakeholders,