LSK calls for end of Kinoti-Haji dominance battle over power to draft charge sheets

The Law Society of Kenya (LSK) has challenged the Directorate of Criminal Investigations (DCI) and the Directorate of Public Prosecutions (DPP) to settle their differences over the disputed subject of charge sheet drawing.

The association in charge of protecting the interests of the bar said the continual squabbles were impeding criminal procedures.

In a statement issued today, LSK President Eric Theuri described the conflict between George Kinoti and the prosecution agency commanded by Noordin Haji as a setback to the criminal justice sector’s progress.

“Equally we call upon the magistrates to decline the invitation by the DCI to accept or reject charge sheets and not to take us back to the dark days pre-2010, a history the people of Kenya are determined to move from,” he said.

Theuri made the remarks after the Court of Appeal, on Thursday, rescinded an earlier ruling given by High Court Justice Anthony Mrima granting the DPP the aforementioned powers.

The judgment came at a time when certain suspects arraigned for trial refused to take plea using charge sheets written by the Kenya Police and DCI, instead of asking that the DPP construct the charges against them as required by the initial High Court order.

According to Theuri, DCI erred when it instructed its officers to present charge sheets immediately to courts for approval or rejection in the aftermath of the Thursday ruling, calling the move unlawful.

“Further the directive by the DCI that its officers must decline to give evidence on charges filed in compliance with the decision by Mrima is in contravention of a valid binding order by the court and can only serve to create anarchy and confusion in the criminal justice system,” Theuri said in a statement to newsrooms.

“A State organ or officer cannot execute a mandate not bestowed upon it by the Constitution or Statute. Article 2 of the Constitution provides that no person may claim or exercise State authority except as authorised under the Constitution.”

As per Articles 157 6 (a) and 157 6 (b), the DPP is empowered to start and conduct criminal proceedings against any individual and shall not seek the approval of any person or authority for the commencement of such proceedings (10).

“There is, therefore, no dispute that the Police have the power to investigate any alleged offense. They also have the power to recommend the charges to be preferred against the suspect depending on the outcome of the investigations. The DPP as the prosecution adds value to the process by reviewing the investigations to determine whether sufficient evidence is available to prosecute,” he added.

The LSK president reaffirmed that the society is still dedicated to upholding the rule of law and the administration of justice.