Having had the opportunity to work at the National Council on the Administration of Justice (NCAJ) for over 3 years, I was alive to the challenges that were facing the working relationship between the offices’ of the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP). Legally, the ODPP has a Constitutional mandate while DCI has a mainly statutory one. The ODPP has its mandate drawn from Article 157 of the Constitution while the DCI draws its mandate from the National Police Act, 2011. This means that Constitutional Supremacy befalls the ODPP in terms of criminal proceedings. However, it is notable that the function DCI is intertwined with the ODPP in the conduct of criminal investigations since this is where criminal proceedings emanate. Observably one can safely say these institutions relate like Siamese twins, where one cannot do without the other. The question in the minds of many is why is there a rift between these institutions?
As mentioned, my work at the NCAJ primarily involved justice sector coordination. At the time, there was a prevailing intervention that would come to my desk as the Court Users Committee (CUCs) coordinator. This was on the issue of enhancing efficiency in the criminal justice sector, by tackling the challenge of lack of coordination and synergy between the officers in the DCI and ODPP. Statistically, this was a challenge that was cut across all the 124 CUCs across the country (See State of the Judiciary Reports on http://www.judiciary.go.ke). The challenge was so rife that it has contributed to the perennial case backlog in the Judiciary of Kenya. Case backlog is categorised as access to Justice problem, which the NCAJ has undertaken to tackle. This is in line with its mandate to formulate strategies, which include policies, to ensure that justice sector institutions coordinate for better administration of justice. The NCAJ termed as a visionary institution by the Former Chief Justice Dr.. Willy Mutunga, is seen as a platform where justice sector players would swiftly resolve challenges to ensure that the court users, who include wanjiku access justice without undue delay. The second question would then be why the NCAJ is not delivering on this mandate?
The foregoing question can be answered by retrospectively studying the impact of the statutory amendments post-2010 vis a vis the two offices. Pre- 2010 criminal prosecutions in court were conducted by Police Inspectors this shifted to the ODPP with the promulgation of the Constitution of Kenya 2010, hence these procedural challenges. One of the reasons would be that, most of the police training on criminal procedures primarily practical while the prosecutors who are mainly lawyers have the advantage of theory and practice. This has meant that there exist two ideologies in the conduct of the criminal proceedings. Suffice it to say that each institution feels superior in its beliefs. Currently, the contention is on the presentation of the charge and the accused person in court. The DCI believes its role ends at plea taking while the ODDP’s role begins thereafter. The reason being that the arrest, investigation, and preparation of the charge sheet is a police undertaking. Secondly, the shift from prosecutions being domiciled with the Police was perceived by the Police to be undermining their capabilities. This was evidence by the initial hostilities between the officers of the ODPP and DCI when prosecuting. As a matter of practice, this was documented as one of the issues affecting most CUCs between 2016 and 2019. Perhaps, the shift could have been handled better through focused engagements between the two institutions to improve the cordial relationship. Lastly, good leadership has been hailed the world over as a core to institutional success. It is prudent for the NCAJ to take up the continuous strategic engagements with the leaders of these two institutions. This can be done by employing dialogue, inculcating the culture of passion to serve and access to justice rapid problem-solving mechanisms at the station level, team building, incorporating home-grown solutions to local problems, and building on procedural innovations within the law. Lastly, how is this problem affecting access to justice?
As access to justice practioner, I know of the numerous occasions that the rift between these two state agencies has affected daily court operations. Resultantly, the lack of synergy leads to lethargy in the development of legal policies, delay in cases, negative public perception, reduced funding towards pressing justice needs, and the eventual injustice to the most vulnerable who in most cases are women and children. During this COVID- 19 period, one shudders to think about what could be happening to the cases of domestic abuse that are now on the rise if the two agencies do not work together. It is now time for the NCAJ to deliver on its mandate and ensure that the rift does not fester into the proceedings in court. It is upon the Chief Justice to put on his wig of wisdom.