The Office of Director of Public Prosecutions (ODPP) is, under Kenya’s 2010 Constitution, responsible for instituting and undertaking criminal proceedings against any person before any court (other than a court martial) in Kenya with respect to any offence alleged to have been committed.
ODPP is the most powerful force in Kenya’s criminal justice sector. ODPP is an independent office and is no longer a department of the State Law Office, controlled by the Attorney General.
It is meant to operate independent of any authority, direction or control, in its discharge of its prosecutorial powers; which must be exercised in the public interest, in the interests of the administration of justice and the need to prevent abuse of the legal process.
The constitutional architecture of the ODPP, is a major step towards revamping a critical sub-sector of the country’s justice system, that has in the past been better known for corruption, incompetence and lack of independence.
However the ODPP faces crippling structural and fiscal challenges to its independence. Despite being an independent office, it does not hire its staff.
Instead, they are seconded to it, by the Public Service Commission and the State Law Office, a practice from the old constitutional order.
ODPP has been accused of unwillingness to prosecute politicians engaging in hate speech and incitement, which it ought to do in collaboration with the National Cohesion and Integration Commission.
The ODPP has also failed in prosecuting cases of corruption and human rights abuses by the police. These matters are worsening the political risk profile of the country.
The Ethics and Anti-Corruption Commission has faulted the ODPP for failing to prosecute key corruption related cases. The Judiciary has also dismissed a number of criminal cases for lack of commitment on the part of the prosecutor’s office. These have caused the public to lose faith in the office.
President Uhuru Kenyatta has picked Noordin Mohamed Hajji as the new Director of Public Prosecution. The President picked Hajji from a list of three names forwarded to him after the office of DPP fell vacant when he appointed Keriako Tobiko as CS in charge of Environment.
Hajji has had a career spanning many years at the National Intelligence Service that has seen him rise to the rank of a senior director. Hajji is a no nonsense civil servant who makes things work.
He is a professional who has what it takes to restore faith in the ODPP. The ODPP has to be non-partisan, professional, and accountable in carrying out prosecutions.
The ODPP should not be used to fight political battles or as a shield by forces of impunity. This in essence, is the challenge to Hajji, and upon which his performance will be judged.
To prove his critics wrong, the new DPP must boldly defend his office’s independence and prosecute without fear or favour in the public interest; to achieve the ends of justice and the reform agenda. This cannot wait until he gets his desired budgetary allocations and staffing levels.
Reformist leaders have proven that, despite structural or fiscal constraints, one can alter an institution’s image and make it effective by being innovatively pro-active, and exhibiting good leadership skills. So, will Hajji, deliver? —The writer is a Nairobi-based lawyer