The Law Society of Kenya (LSK) has accused the Directorate of Criminal Investigations (DCI) of trying to usurp powers vested upon the Directorate of Public Prosecutions in Tob Cohen murder case.
In a statement on Friday, LSK President Nelson Havi said that the DCI, which is under the NAtional Police Service has been overstepping its mandate, by trying to initiate criminal prosecution against suspects, a function of the DPP.
“The function of the National Police Service in general and the DCI, in particular, is to investigate crime. On the other hand, the DPP is tasked with the criminal prosecution of suspects. In the hierarchy of powers related to criminal investigations and prosecutions, Article 157 (4) of The Constitution of Kenya elevates the DPP above the DCI,” said Havi.
“It need not be emphasized that State powers of prosecution are given to the DPP by Article 157 (6) of The Constitution of Kenya. The DPP institutes and undertakes criminal proceedings without the consent, direction or control of any person or authority. Article 157 (10) of The Constitution of Kenya is categorical in that regard.”
In the recent past, the two organs have been at loggerheads over the prosecution of Court of Appeal judge Justice Sankale ole Kantai in connection with Cohen’s murder.
DCI alleged that the DPP refused to prosecute the judge despite overwhelming evidence. On the other hand, DPP claimed they never received the evidence, and that the DCI leaked the alleged evidence to the media, one in the case of John Gachomo, who was an officer never commissioned to investigate the murder.
According to the provisions of Section 4 of the ODPP Act, once an investigative agency completes its investigations, the investigative file is submitted to the DPP to make a decision as to whether a criminal case has been established.
Once an investigative file has been submitted, a prosecutor is required to examine whether the file meets the evidential and public interest test. According to the National Prosecution Policy the evidential test must be satisfied first before any consideration is made to the public interest test.
“The DCI has in this case purported to arrogate to himself powers that he does not have, by demanding that the Judge be charged when the DPP has determined on the basis of evidence and the law, that a murder charge is unsustainable,” added Havi.
A petition has been filed before the Public Service Commission (PSC) to initiate the removal of DPP boss Noordin Haji for refusing to prosecute Kantai.
“Of greater concern is the petition before the PSC to remove Noordin Haji as DPP on account of his decision not to charge the Judge. The petition, though presented by the family of the late Tob Cohen, has all visible footprints and fingerprints of the DCI. It seeks to achieve what the DCI has failed to obtain by striving to direct or control the DPP on the matter,” said Havi.
“It should not be lost to Kenyans that the establishment of the office of DPP as an independent office under The Constitution was deliberate. It was intended to avoid abuse of State powers of criminal prosecution then prevalent when criminal charges were instituted by the Police and prosecution undertaken under a department of the Attorney General. The insulation of the DPP from the direction or control of these two institutions sought to guarantee the lawful exercise of State powers of criminal prosecution. These gains, entrenched in The Constitution of Kenya cannot be clawed back through the actions of the DCI directly or by proxies.”
The affidavit (By Gachomo) claimed that Justice Sankale was an accessory to murder, with the only link being communication with the prime suspect Sarah Cohen.
According to sources who sought anonymity, Justice Kantai and Sarah had been dating for 17 years, and the communication used did not in any way insinuate that the judge was involved in the murder, whether before or after.
Haji has, as a consequence, directed Mutyambai through the Internal Affairs Unit (IAU) of the National Police Service to investigate the said John Gachomo to establish whether or not he disclosed as her purported, material evidence or any evidence in his possession to the public and which he was required to instead forward to the ODPP.