DPP Haji clash with DCI over new guidelines in probing terror suspects

The Directorate of Criminal Investigations (DCI) and the Directorate of Public Prosecutions (DPP) are at odds again over the protocol to be followed before terror suspects are arrested.

The prosecutor wants the Anti-Terrorism Police Unit (ATPU) to notify him before making any arrests, but due to the nature of their operations, the DCI is likely to reject this request.

The idea is part of new rules released on Tuesday to help prosecutors, financial authorities, and the ATPU investigate and prosecute terrorists and terror financiers in the country.

According to the guidelines set by the ODPP, state agencies, and civil society, the ATPU must notify the prosecutor when the unit is gathering evidence against a suspect and intending to make an arrest, unless there are exceptional circumstances.

When it intends to seek for search warrants or detention orders against the suspects or their property, it shall also notify the DPP.

The guidelines stipulate that “when an arrest is made without prior knowledge of the DPP, the DPP shall be notified immediately.”

Governor of the Central Bank, Patrick Njoroge, said the county’s role as a key transportation and communications hub, as well as its geographic location, render it vulnerable to terrorist attacks.

“Given the transnational nature of terror financing, Kenya needs to adopt an inter-agency and holistic approach that is not limited to law enforcement agencies, but includes financial sector regulators, the registration services, the Financial Reporting Centre and private entities such as banks in efforts to tame terrorism financing,” he said.

The ATPU is a top-secret unit that reports to the Inspector-General of Police and is led by Director of Criminal Investigations George Kinoti. Because of the delicate nature of its functions, its operations are kept under wraps.

The ODPP’s involvement in its investigations signals a shift in the status quo, and it could put its investigators under additional scrutiny.

The guidelines, according to DPP Noordin Haji, are intended to close any gaps that may be discovered during the suspect’s arraignment and provide guidance on the various offenses to prosecute.

They’re also supposed to advise the ATPU on lines of inquiry, investigation procedures, bail concerns, the necessity for expert evidence, and how to present evidence in court.

Terror suspects should not be forced to make any confessions or admissions that could be used to collect evidence against them at the time of their arrest, according to the rules.

According to figures from the Missing Voices Coalition, 36 people were reported to have disappeared during anti-terror operations last year, and ATPU has been accused of torturing and imposing the disappearance of terror suspects.

“Four of these were later found dead while two were alive. About 30 are still missing. Most of the cases of enforced disappearances were as a result of anti-terrorism operations,” said International Justice Mission Country Director Benson Shamala.

Haji said the guidelines seek to enhance multi-agency handling and coordination of terrorism investigations.

“Reluctance to share information is no longer tenable. No single agency can effectively or single-handedly combat terrorism and its manifestation because this is a crime that cuts across multiple jurisdictions.

Uncoordinated, unilateral actions by one agency can produce only limited results in the fight against such a complex threat,” he said.

After the assaults on the US Embassy in 1998 and an Israeli-owned hotel in Kikambala in 2002, the ATPU was established in 2003 as a unit stationed at the police headquarters to investigate all terrorism problems and apprehend individuals.

Since its inception, the team has been credited with the success of numerous anti-terror operations, including the 2016 foiling of an anthrax-based biological attack.

However, when terror attacks became more common, law enforcement organisations modified how they dealt with suspects and offenders.

The rules are being released at a time when allegations suggest that corrupt court officials are “facilitating terror activities.”