Prosecution should be left solely to DPP, says Nyachae commission

Director of Public Prosecutions Keriako Tobiko. PHOTO | FILE 

By KIARIE NJOROGE, gkiarie@ke.nationmedia.com

In Summary

• CIC said that prosecution should be left solely to the Director of Public Prosecutions if high prosecutorial standards are to be maintained.
• The opposition CORD has called for EACC to be given the powers to prosecute, accusing DPP Keriako Tobiko of being used by the government to water down or throw out corruption cases.

An outgoing constitutional commission has opposed the push for investigative bodies like the Ethics and Integrity Commission (EACC) to be granted prosecutorial powers, saying it goes against separation of functions.

The Commission for the Implementation of the Constitution (CIC), which bowed out of office on Tuesday, said that prosecution should be left solely to the Director of Public Prosecutions (DPP) if high prosecutorial standards are to be maintained.

The opposition Coalition for Reforms and Democracy (Cord) has called for EACC to be given the powers to prosecute, accusing the DPP Keriako Tobiko of being used by the government to water down or throw out corruption cases.

CIC said that while the Constitution allows other bodies to be given prosecutorial powers through an Act of Parliament, the supreme law also advocates for a separation of the powers of prosecution and investigation.

“To vest both investigative and prosecution powers in one agency presents serious risks of abuse of power, conflict of interest and mandate,” CIC said in its final report.

“CIC subsequently recommends that prosecutorial powers granted through legislation be restricted to agencies that do not have investigative powers.” In July, Budalang’i MP Ababu Namwamba drafted a Bill to allow the EACC to prosecute graft suspects.

Currently, the EACC investigates officials linked to corruption and forwards its findings to the DPP. The prosecutor weighs the evidence and decides whether to move to court or not.

In multiple cases, the DPP has declined to charge suspects whose names have been forwarded by the EACC citing insufficient evidence or areas that were not sufficiently investigated.

In other instances, the EACC has recommended closing of suspects’ files but Mr Tobiko has ordered for further investigations.

The DPP’s office has also assumed the prosecution of other suspects where previously they were handled by police prosecutors.

“The DPP has, as a result, instilled professionalism in prosecutions,” CIC said in the report.

CIC was formed in January 2011 with a five-year mandate to manage the transition to the new Constitutional dispensation, especially in the crafting of new legislation and aligning old laws with the new law.