Lobby group Sheria Mtaani has threatened to move to the High Court to challenge any legislative attempt to transfer prosecutorial powers from the Office of the Director of Public Prosecutions (ODPP) to the Ethics and Anti-Corruption Commission (EACC).
Addressing the media at Milimani Law Courts, the group’s legal representatives Danstan Omari, Shadrack Wambui and Stanley Kinyanjui warned Parliament against pursuing what they described as a potentially unconstitutional move that could destabilize Kenya’s justice system.
Omari issued a stern warning to lawmakers, saying that any effort to reassign prosecutorial authority could be challenged immediately in court.
“Anybody in Parliament listening, thinking you can pass that law whether you are doing so so that the EACC will clear you, or to prevent being barred by the IEBC in 2027 from contesting we are still ready and waiting. Just like in the case of NTSA, Sheria Mtaani will not relent,” Omari warned.
He argued that such a shift may be driven by self-interest, including attempts by political actors to avoid legal scrutiny or eligibility issues in future elections.
The group said it intends to seek constitutional interpretation on whether Parliament has the legal mandate to reassign prosecutorial functions, maintaining that Kenya’s legal framework deliberately separates investigative and prosecutorial roles to safeguard accountability and fairness.
They emphasized that the EACC, like the Directorate of Criminal Investigations (DCI), is constitutionally mandated to investigate, while prosecutorial discretion lies exclusively with the ODPP.
According to the lawyers, courts have consistently upheld this distinction.
“Let the EACC remain within its investigative mandate, and the DPP exercise its constitutional role of determining whether to charge or not to charge,” the team said.
They said that prosecutorial decisions are discretionary and must remain independent.
Sheria Mtaani further argued that merging investigative and prosecutorial roles would create serious legal inconsistencies, particularly in court proceedings.
They said that investigators serve as witnesses, while prosecutors present cases,roles they said cannot be performed by the same entity without compromising judicial integrity.
The lawyers also criticized what they termed as undue pressure on prosecutors to approve investigation files hastily, warning that the ODPP should not be reduced to a “rubber stamp.”
They pointed out that investigations, especially in corruption cases, often take considerable time and require thorough review before charges are filed.
The group maintained that preserving the separation of powers between investigators and prosecutors is essential to ensuring justice is administered fairly and transparently.
Any attempt to blur these lines, they warned, could erode public confidence in the justice system and undermine constitutional safeguards.
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