Directorate of Criminal Investigations (DCI) George Kinoti now warns that defiance by the Office of the Director of Public Prosecutions (ODPP) to honour a judgment on drafting of charge sheets could lead to the collapse of the criminal justice system.

Kinoti now wants DPP Noordin Haji to urgently guide his prosecutors against violating a Court of Appeal order that charge sheets be drafted and signed by police, failure to which the criminal justice system would be in jeopardy.

In a letter dated July 4, Kinoti has put the DPP on notice, stating that his office is in contempt of Court of Appeal orders requiring police officers to draft and sign charges and not lawyers based at the ODPP.

Kinoti says judges Daniel Musinga, Agnes Murgor and Fatuma Sichale stayed a judgement by Justice Antony Mrima vesting the duty of drafting and signing charge sheets to lawyers attached to the office of DPP.

He  informed the DPP the continued disobedience of the Appellate Court orders is beckoning a contempt case against him and juniors in the prosecution desk.

“The purpose of this letter is to bring to your attention that your prosecutors’ actions are in blatant contempt of Court of Appeal orders and we are calling upon you (Haji) to guide them accordingly to avert total collapse of the criminal justice system,” says Kinoti in his letter copied to Inspector General of Police, the AG,  Commission for Administration of Justice (CAJ) and Commissioner General of Kenya Revenue Authority (KRA).

There has been a tug-of-war between the ODPP and DCI over drafting of charge sheets and presentations in court.

The tiff was heightened when Mrima ruled to the effect that drafting, signing and presentation of charge sheets in criminal prosecutions was limited to the ODPP.

In his May judgment, Justice Mrima directed the National Police Service, the Ethics and Anti-Corruption Commission (EACC), the Kenya National Commission on Human Right, KRA, CAJ, the Anti-Counterfeit Agency, or any other entity mandated with criminal investigation role not to draft, sign or present any charge sheet for any criminal prosecution.

However, the IG, DCI and AG protested this ruling and rushed to the Court of Appeal seeking to overturn it.

Following their appeal, a three-bench Appellate Court suspended Mrima’s judgment until October when they would deliver the final verdict.

Ignoring judgement

Now, Kinoti accuses the ODPP of ignoring the judgment by continuing to draft, register and present charge sheets in courts.

“We are duly informed that in the period following the issuing of the stay orders, investigating officers are encountering challenges with the drafting, registration and presentation of charge sheets for admission or further guidance by the courts,” he observes in his letter.

Kinoti says ODPP has continued to use the several versions of charge sheets that he rolled out immediately Justice Mrima delivered his judgment.

The Mrima judgment, he states, caused lost of confusion because several individuals could not know the particular form of charge sheet to be used thus resulting to miscarriage of justice.

“The Court of Appeal stay orders which in fact were immediate and binding to all actors in the criminal justice system, informed the country to revert back to the usual gazetted and legally recognised police charge sheet classified as “Police 5” GPK,” he says.

The top detective says only the police charge sheet bears the provision of signature, seal or stamp of a senior police officer and or station commander.It shows no provision of a prosecutor’s signature, seal or stamp,” he argues.

Kinoti warns Haji that the actions of his prosecutors are not only annoyingly in contempt of court, but also go against public interest and are solely aimed at “creating anarchy in the criminal justice system to the detriment of the rule of law and for a reason only best known to them.”

The DCI also warned Law Society of Kenya (LSK) President Eric Theuri to tread carefully on the matter and withdraw his advise to lawyers not to honour charge sheets drafted by the police.

“We do hope this unlawful, contemptuous, illegal and unconstitutional advise triggered by suspicious interests was not interpreted by your prosecutors to mean the setting aside of the Court of Appeal orders,” he says.

He further warns  that a police officer can only be cross examined in a case where the charge sheet has been generated by a police officer involved in the investigations otherwise  it will amount to total miscarriage of justice, which  would turn out to be very costly to both the state and the citizens involved in criminal litigation.