Legal experts say Kinoti, Haji turf war undermines fight against crime
The former bosom buddies President Uhuru Kenyatta relied on to re-energise the war on corruption are no longer seeing eye to eye.
So nasty is the feud between the once celebrated crime-fighting duo of Director of Criminal Investigations George Kinoti and Director of Public Prosecutions Noordin Haji that they are now accusing each other of criminal actions.
The fight is attributed to the exercise of prosecutorial powers, and it is almost bringing down the ant-graft war that Deputy President William Ruto and his allies have said is political.
The bad blood between the two state officers has escalated to the courts, where Mr Kinoti has pointed at the possibility of arresting Mr Haji on claims of forgery.
Mr Kinoti also recently directed his officers not to record the statements of criminal suspects and witnesses or take their fingerprints, leaving the DPP in a quandary as he cannot prosecute without statements.
In 2018, shortly after their appointment, they built multiple corruption cases against top government officials and high-profile politicians, although none of the trials has been concluded. The camaraderie, however, has fizzled.
Lawyers and the civil society are divided on the impact of the ongoing feud between the DPP, a trained lawyer, and the DCI, a trained and career police officer.
Some say the tiff does not have a legal impact on the criminal justice system and the ongoing court cases, while others say the trial of criminal cases is likely to be delayed. There are also those who say the feud will reward criminals and that crimes such as drug trafficking and money laundering are likely to surge.
According to lawyer Ahmednasir Abdullahi, the fight is not legal but personal. He said this is because Mr Haji holds a constitutional office with security of tenure while Mr Kinoti is the head of a directorate under the direction, command and control of the Inspector-General of police.
“The DCI is not even recognised in the constitution. The constitution talks of the Inspector-General (IG). But the current IG is a man who has been overpowered by his juniors and looks choked. That is why the DCI is talking of things that are not even known to the law,” said Mr Abdullahi.
He referred to the recent decision by Mr Kinoti to direct DCI officers not to record statements saying the DCI boss exercised the powers of the IG.
“The letter he (DCI) wrote to his officers is illegal because he does not have such powers. That letter in itself was an offence. If DPP was a serious man he would have charged Mr Kinoti the next morning, because Mr Kinoti does not have those powers,” said the senior counsel. “The DCI is acting in a manner that is scandalous in my view.”
He added: “He (DCI) ought to have his feet held close to the fire and be asked the basis of the powers he is claiming to exercise.”
Mr Charles Kanjama, a constitutional lawyer, said the ongoing feud between the two offices is of great concern to law enforcement and the rule of law in general.
“The design of the criminal justice system requires close collaboration between the two agencies. Pending criminal cases and anti-corruption investigations are likely to be severely impacted. There will be a high cost to confidence in the justice system, and the rule of law will be impacted,” said Mr Kanjama.
Mr Shadrack Wambui, a criminal lawyer, said the public display of differences between the DCI and the DPP is a struggle for power and supremacy between the two public bodies.
“The power struggle is likely to affect the criminal justice system in unimaginable proportions. Criminals are likely to benefit immensely as the two key players in the justice sector appear to be distracted in their struggle for supremacy,” Mr Wambui said.
“On the other hand, victims of crime are going to suffer more as there will be little or no action to their complaints,” he added.
The DCI has previously expressed frustration by the inaction or refusal of the DPP to bring to book persons that investigations had revealed had a hand in illegal deals and schemes that had robbed taxpayers of huge sums of money.
Mr Wambui said the DPP is wrong for attempting to isolate the DCI in making decisions such as the development of guidelines on charging terror suspects and combating terror and terror financing.
Another lawyer, Bernhard Kipkoech, said the spat will ground the criminal justice system and reward criminals, including thieves of public resources, drug dealers and money launderers.
“The prosecution would not have witness statements and witnesses, as police files are with the police, who also secure the attendance of witnesses,” he said.
“The power to prosecute vests in the DPP. The fight will reward criminals and Mr Kinoti, who is politically correct. It serves to weaken the office of the DPP and restore abuse of police powers for witch-hunts and persecution of the innocent,” he added.
In his view, President Kenyatta, who chairs the National Security Council, should call an urgent meeting to break the impasse.
“The President should sack Mr Kinoti and let Inspector-General Hillary Mutyambai lead the police service as is the law. The DPP is right – prosecution is his job as provided in Article 157 of the constitution. Police only investigate,” Mr Kipkoech said.
Amnesty International Kenya’s executive director Houghton Irungu said the conflict is a threat to the effectiveness of the entire criminal justice system. In his view, the two institutions are indispensable to each other and not collaborating undermines public faith and trust.
“Coming nine weeks before the General Election, this is a fracture the National Council on the Administration of Justice does not need,” he said. “The tension that has been created in the exercise of prosecutorial powers affects thousands of criminal cases. Not just terrorism, corruption or homicide, but gender-based violence and theft.”
He added that the instruction by the DCI to his officers not to cooperate with the DPP effectively ties the hands of thousands of investigators and prosecutors working to protect the public, solve crimes and seek justice for citizens.
“Diplomatic and administrative actions are urgently needed at the highest level to restore their constitutional mandate and a harmonious relationship between the two offices,” he said.