Prosecutorial independence and accountability in post-2010 Kenya the law and its application in practice

Abstract

This project examines the dissonance between the law on prosecutorial independence and accountability in Kenya and its application in practice. It argues that although the Constitution of Kenya established the Office of the Director of Public Prosecutions (ODPP) as an independent office with attendant accountability mechanisms to ensure checks and balances, nevertheless, a disconnect exists between the law as is and the application of the legal provisions relating to the independence and accountability of the ODPP. The study mainly employs the Doctrinal Research Methodology to argue that the dissonance arises primarily for three main reasons. Firstly, that historical positioning of the ODDP as a department under the Attorney General’s made it impossible to attain institutional independence; secondly, that this historical fact continues to manifest itself in the post-2010 constitutional order even after separation from the Office of the Attorney General (hereafter the OAG) due to the resistance of other actors in the criminal justice system like the National Police Service to embrace the changes and thirdly, that the constitutional order is characterised by overlaps in the mandates of several government organs and agencies. The study relies on Roscoe Pound's Theory of the Law in Books versus the Law in Action to illustrate the variance between the law relating to the independence and accountability of the ODPP vis-à-vis the application of the relevant provisions in the Constitution and Statutes relating thereto. Having examined the causes of this variance, the study makes a number of main findings including that the ODPP has a historical foundation which can be traced all the way to the colonial times; the Constitution of Kenya 2010 established the ODPP as an independent office that would not be under the direction of anyone in the exercise of the State powers of prosecution; despite the Constitution separating the ODPP from the OAG, there seem to be some overlap in the mandates of the two State organs; and that the ODPP can learn from the best xiii practices South Africa, England and Wales and Japan as far as prosecutorial independence and accountability mechanisms are concerned.