Noordin Haji: Covid millionaires are free for now, but will face the law

Why do you feel certain actors in the criminal justice system want to usurp the role of your office, yet the law spells out the mandates of every entity? Andrew Maranga Ratemo, Nairobi

The criminal justice system operates as a whole. There are investigators, prosecutors, the Judiciary and correctional services. There was no clear demarcation of the role of the investigators and prosecutors before and after independence. This was made clear in the 2010 Constitution where the independent Office of the Director of Public Prosecutions (ODPP) was created and separated from investigative agencies.

The need to usurp emanates from a lack of clear understanding of the mandate of the different criminal justice actors, and especially the ODPP as stipulated in Article 157 of the Constitution. It has been difficult to erase the historical aspect we inherited from the pre-2010 constitution, where investigators were also the prosecutors. 

However, the ODPP has been holding countrywide stakeholder engagements to sensitise criminal justice actors and the public on what the Constitution says about separation of mandates. We do this through multi-agency and stakeholder workshops, public sensitisation forums on social media (through the ODPP Café) and community dialogues. We have also developed and launched policy documents like the Decision to Charge, Diversion, Plea bargaining, a new prosecutor’s guide to children in the criminal justice system.

The feud between your office and the Directorate of Criminal Investigations (DCI) is in the public domain. It is disappointing to us who want to see the criminal justice system work smoothly. What can sustainably resolve these disputes? Should the law be amended? Has Parliament shown interest in this matter, which no doubt seems to have slowed the wheels of justice? Moris Komen, Eldoret

There is no feud. Inter-agency collaboration is critical in ensuring that criminal justice actors discharge their constitutional mandates efficiently. Healthy tension among players helps clarify mandates and responsibilities.

As the ODPP, we are committed to discharging our mandate and supporting other agencies in executing theirs, all this for the good of the ordinary Kenyans. 

The wheels of justice are moving as fast as they should. We work under the umbrella of the National Council in the Administration of Justice (NCAJ). As an NCAJ member, the ODPP remains committed to the continuous implementation of strategic initiatives that strengthen inter-agency cooperation and improve services.

The Excellence Charter by your office alludes to a roadmap towards being a 21st century prosecution service. What is 21st century prosecution and how will achieve it? Eric Mutai, Nairobi 

A 21st century prosecution is one that is responsive to the needs of mwananchi and upholds the rule of law. A 21st century prosecutor must be able to define and articulate their mandate clearly, promote fair, impartial and expeditious pursuit of justice; promote integrity in the profession and effective coordination in the criminal justice system.

The Excellence Charter was launched in June to provide a roadmap aimed at transforming the ODPP into a 21st century service, one that is responsive to the needs of mwananchi. The charter is a public document that allows citizens to hold accountable and review any decision the ODPP makes. 

The guideline makes criminal justice accessible and friendly to mwananchi. It also ensures that we undertake and take seriously the ODPP mandate of being the agent of the Executive and deliver quality services. 

The 21st century prosecution service will be achieved over the next three years through six strategic commitments. These are independence and integrity; lifelong learning; reshaping prosecutions; leadership. organisational effectiveness and inter-agency networks.

These commitments will adopt a 3R approach of Recasting, Retooling and Relearning. Recasting involves collaboration, cooperation and coordination. The Retooling strategy focuses on strengthening and growing existing ODPP infrastructure while the Relearning focuses on equipping employees with the requisite skills and capabilities necessary to deliver our mandate. 

The Judiciary via Court Annexed Mediation is spearheading and advocating alternative dispute resolution mechanisms on land, labour, family environment and other cases. To what extent will this affect the mandate of your office and how are you prepared to remain relevant in the administration of justice? Dan Murugu, Nakuru

The ODPP primarily handles criminal cases in line with the Constitution and its policies. The Judiciary led court annexed mediation does not apply to criminal cases and will therefore not directly affect our mandate. 

It is notable, however, to note that the ODPP has set up structures for alternatives to prosecution such as diversion and plea bargaining. 

Diversion is an alternative to criminal prosecution. It means resolving criminal cases by removing the matter from the court system in deserving situations. Diversion was developed pursuant to the National Prosecution Policy, Article 159 of the Constitution and the International Legal Framework. The Diversion Policy is a first in Kenya and was developed to enable prosecutors shift cases from courts on merit and through agreed structures. 

The ODPP also employs plea bargaining as another alternative means of resolving criminal cases. Not every criminal case should be prosecuted to finality through a trial. What is important is that justice is done. All parties are dealt with fairly and equitably. 

It is important that stakeholders embrace creative provisions in our law to decongest prisons, considering that in some cases remandees remain in custody during proceedings. If properly employed, plea bargaining serves as an important, useful and effective tool to keep justice moving in a timely and cost-effective manner.

The purpose of plea bargaining is to narrow down the issues in a case to reach a just outcome within the shortest possible time. These alternatives compliment the court-annexed mediation and therefore enhance speedy case disposal.

What more does the ODPP need to prosecute cases efficiently and effectively? How are you dealing with the missing link to efficient and effective prosecution? Jaswinder Shah, Nairobi

Achieving effective and efficient prosecution is wider than just the office. The criminal justice system needs to be capacitated to realise efficiency and effectiveness. An actor cannot operate in a vacuum. There is a good opportunity to leverage technology to improve the dispensation of justice. The players in the criminal justice system must work together. 

On assuming office, I interrogated the ODPP operations, performance, culture and mindset and noted the urgent need to restructure our focus in a way that would improve services. 

This realisation led us to redirect our strategic focus guided by a three-pronged approach of recasting, retooling and relearning. I am confident that the journey towards achieving efficiency will be achieved.

Claims of Covid-19 millionaires and corruption at the Kenya Medical Supplies Agency (Kemsa) remain unresolved. Why is it taking long to charge people yet investigation files have been submitted to your office? Why are culprits being treated with velvet gloves? Andrew Opere, Kisumu

The ODPP returned the Kemsa files to the Ethics and Anti-Corruption Commission to close some gaps. The two agencies are working together to ensure we meet the evidential threshold. 

We want to take to court a case that has evidence to convict individuals involved. Once we are satisfied that it has met the threshold, we shall act accordingly. 

You left a job that mostly kept you away from the public limelight and the internecine battles you are experiencing in the criminal justice system. With the benefit of hindsight, do you regret leaving your job? David Wabwire, Helsinki, Finland

I have no regrets. I am honoured to serve Kenyans in this capacity. My career path has contributed a lot to my understanding and delivery in my current role.

Next week:Richard Ngatia, the Kenya National of Chamber of Commerce and Industry President