The Director of Criminal Investigations has reignited his war with the Director of Public Prosecutions (DPP) over who should be responsible for preparing charge sheets, a key issue that will affect the investigations and trials.
DCI George Kinoti has come out guns blazing, blaming cartels for driving a wedge between him and Noordin Haji, the DPP.
But in a stinging opener published in the maiden The DCI magazine launched on Friday, Mr Kinoti, who has stayed away from the press since February, said cartels were trying to make it look like he was usurping the DPP’s powers.
“Their accusations are not only misleading but malicious and are intended to crucify and persecute me for standing up against deep-rooted, organised, moneyed, connected and very influential patrons of key sectors and entities who have for a long time milked this our beautiful country dry. The same cartel has invested heavily to cut me to down size and sink me,” said Mr Kinoti.
The outburst comes weeks after he made a request to the Attorney General for an advisory opinion on who had the powers to take suspects to court and to prepare charge sheets.
Insiders say that the preparation of charge sheets has threatened to create a division, with claims that Mr Kinoti is on one side with AG Paul Kihara and Assets Recovery Agency director Muthoni Kimani — a long-time officer in the AG’s office — against Mr Haji and EACC chief executive Twalib Mbarak.
On July 31, the Judiciary in a press statement, clarified that only the ODPP was mandated to prosecute.
The dispute over who has the powers to charge suspects before court has been cited as one of the factors slowing down the war on corruption. It is only this week that the deadlock seemed to be lifted, with the DPP’s approval of charges against high-profile suspects in three different corruption cases, whose files had been lying in his office for months.
Among those approved for charging is former Kenya Ports Authority (KPA) boss Daniel Manduku who, just five months ago, was freed by the courts after the DPP refused to approve charges against him prepared by the DCI.
While declining to charge Mr Manduku in March, the DPP said he was not aware of the charges at the time because the DCI had not submitted the file to his office for perusal and approval.
The DCI has, for over a year been investigating Manduku over two matters: illegal procurement of concrete barriers and the leasing of extra storage space by the agency for the Inland Container Depot in Nairobi.
Yesterday Mr Manduku denied conspiring to defraud the KPA by irregularly approving procurement of concrete barriers works costing Sh1.4 billion without a budget approval.
Also approved for prosecution this week was Malindi MP Aisha Jumwa over alleged misappropriation of Sh19 million given to the Malindi National Government Constituencies Development Fund. By last evening, the MP had not been arrested. She is expected to appear before a Mombasa court on Monday.
On why his office is suddenly approving files that had been gathering dust for months, the DPP told the Saturday Nation that he is only working on cases delayed due to the coronavirus pandemic.
“We have had a number of files but the Covid pandemic delayed us in the initial stages, because of the uncertainty. Then we were also affected by infections, especially at the headquarters,” the DPP said.
Mr Haji said his office has undertaken to clear the pending cases and denied that the newest wave of prosecutions was influenced by politics.
“Our work has nothing to do with politics. We have to wait for the investigators to complete their work and forward the files to us,” Mr Haji said.
Although the approval of charges in the cases against Mr Manduku and Ms Jumwa appear like a win for the DCI since the DPP had declined to approve any corruption cases from Kiambu Road since July last year, Mr Kinoti is still not satisfied.
Before things fell apart, the DCI and the DPP used to have so much goodwill that Mr Kinoti could arrest and present the big fish arrested on corruption allegations in court.
Speaking for the first time about the hotly contested matter, Mr Kinoti said that according to the law it his only his office that can prepare and present a charge sheet in court. He appeared to take a swipe at the DPP.
Independence of investigations
“While exercising the independence of investigations as provided for under Article 245 (4) of the Constitution, which provides that ‘no person may give direction in respect to the investigation of any particular offence or offences and or the enforcement of the law against any particular person or persons,’” wrote the DCI.
Sections 89(4)(5) of Cap 75 Section and 89 (4) of the Criminal Procedure Code say that a person can be arrested without a warrant and presented before a court of law.
But the Constitution says that the DPP can direct that investigations be carried out upon knowledge of alleged criminal conduct. Such direction shall be in writing to the Inspector General of the National Police Service or the appropriate investigative agency, depending on the nature of the alleged criminal conduct.
The matter of who between the DPP and DCI can institute proceedings was determined by Justice George Odunga, sitting in Machakos, who ruled that the DCI has no such powers unless the DPP gives consent.
On July 28, Mr Haji launched the Guidelines on the Decision to Charge, which stated that the work of detectives ends with investigations.
“Whilst the roles of the investigator and prosecutor are complementary, ultimately, the decision to charge rests with the prosecutor, who must assess whether it is appropriate and what charges to prefer for a court to consider,” says the document.
Notably, Mr Kinoti missed the launch, which was attended by Chief Justice David Maraga, Interior Cabinet Secretary Fred Matiang’i, Inspector General of Police Hillary Mutyambai and Ethics and Anti-Corruption Commission chief Mr Mbarak.
Former DPP, Senior Counsel Philip Murgor, says that the matter was settled in the Constitutional case filed before Justice Odunga by Geofrey Sang, acting chief executive officer of National Water Harvesting and Storage Authority, who had been arrested and arraigned by the DCI.
“This is an historical matter which arose from independence, when the Attorney General delegated the power to the police to carry out prosecution, ending up at a point when the power to investigate and prosecute became the biggest corruption and criminal enterprise in the country,” he said.
Mr Murgor said that a police officer could arrest and threaten to take you to court if you failed to part with a bribe.
“This abuse of the charging system led to the overcrowding in our prisons. Reforms to rectify this anomaly started in 2003 and climaxed with the Constitution of Kenya, 2010 in which an independent office for public prosecutions was set up,” Mr Murgor said, adding, “It is good practice for the DCI to send a file to the DPP with recommendations for specified charges. But, it is the total discretion of the DPP to agree or disagree with the suggestions by the DCI,” he said.
