EXERCISE OF PROSECUTORIAL DISCRETION:

A PAPER BY ALEXANDER MUTETI, LLB; MA – SENIOR ASSISTANT DIRECTOR OF PUBLIC PROSECUTIONS

The role of a public prosecutor is that of a Minister of Justice. It requires counsel entrusted with such responsibility not only to exercise independent decision making but also balance the public interest as against individual rights and freedoms.

It is therefore incumbent upon all public Prosecutors to bear true allegiance to the Rule of Law and uphold Constitutional rights in making the decisions to prosecute. In doing so, the public Prosecutor must satisfy himself/herself to the fact that; first, there’s sufficient evidence to provide a realistic prospect of conviction and secondly, assess whether it is in the public interest to prosecute.

In SXH (Appellant) v The Crown Prosecution Service (Respondent) [2017] UKSC 30, it was accepted that the prosecutor had reasonable cause to believe the defendant to be guilty of the offence with which she was charged and that the law relating to the offence is compatible with Article 8. Nonetheless, the appellant contended that the decision to prosecute her was a breach of her Article 8 rights.

This decision confirms that any public prosecutor should remain alive to the provisions of Chapter 4 of the Constitution of Kenya 2010 whenever they decide to make a prosecutorial decision. It is important to note that a decision to prosecute not only affects the person to be charged but also affects his close family associates and friends. It is no mean fit.

The evidential test is the primary consideration. It must never be ignored under whatever circumstances. This is key because even where it may appear attractive to prosecute in the public interest one must remain acutely aware that the decision to prosecute could very easily translate to a persecution. Simply put, it should never be a lynch mob approach in making the decision to prosecute.

Sir Keir Starmer QC, former DPP explored the decision to prosecute in a lecture before the legal action group in 2013 on the premise of whether or not sufficiency of evidence and had this to say,

“if there is enough evidence, is a prosecution required in the public interest? He concluded that, prosecutorial discretion is a good thing. It takes the edges off blunt criminal laws; it prevents injustice; it provides for compliance with international obligations; and it allows compassion to play its rightful part in the criminal justice response to wrong doing. The blunt instruments that criminal law statues necessarily have to be can be honed into compassionate ns appropriate case work decisions by the exercise of the public interest discretions.”

The statement above does not only emphasize the need to consider the evidence available but also reminds every public prosecutor worth his name that in deciding whether or not to prosecute must remain alive to the two tire test.

The power to prosecute if not properly exercised may easily be abused leading to distraction of people’s families and careers. It should never be exercised in a willy nilly manner. It is important to note that a complainant has no right to insist on a prosecution especially where the evidence is wanting. Further, it is even more important for one to take cognizance as they make the decision to prosecute that they own personal responsibility over the decision and as the constitution decrease in exercise of that power they must guard against the abuse of rights and freedoms provided for under our Constitution Public prosecutors must be reminded that Under Article 3 of the Constitution of Kenya 2010, that have an obligation to respect, uphold and defend the Constitution.

In the spirit of Article 3 and article 157, (10) of the constitution of Kenya, the decision to prosecute must be exercised independently and with extreme caution. In Maxwel vs Republic Gaudron and Gummow JJ observed in obiter at pages 329-330 that

“the power of the Attorney General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as the prosecutorial discretion”

I raise this matter of nolle prosequi advisedly because a prosecutor can make an erroneous judgment in the decision to prosecute but that error can be cured by a decision to terminate the proceedings. In this country, that may be done through the entry of a nolle prosequi under section 82 of the Criminal Procedure code or by a withdrawal under section 87 of the Criminal Procedure code.

It should never be the decision of the court as to who is to be prosecuted and for whatever offence. In R v Mcready (1985) 20 A Crim R 32 at 39 and Chow v DPP (1992) 28 NSWLR 593 at 604-605. The integrity of the judicial process – particularly, its independence and impartiality and the public perception there of – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to prosecuted and for what.

It is instructive to note from a stream of authorities world over, that the decision to prosecute is largely left to the public prosecutor and therefore, there’s a legitimate expectation that whoever exercises that power must be cognizant of the fact that they are not only expected to exercise it independently but also fairly.

The decision of the Supreme Court of Fiji in Matalulu v DPP, above, which the Supreme Court chose not to adopt was given by Von Doussa, Keith and French JJ and was made (unlike Maxwell and Keung Siu Wah) with reference to constitutional provision indistinguishable in substance from those in Mauritius. At pp 735-736 the court said;

“It is necessary for present purposes to explore exhaustively the circumstances in which the occasions for judicial review of a prosecutorial decision may arise. It is sufficient, in our opinion, in cases involving the exercise of prosecutorial discretion to apply established principles of judicial review.”

 These would have proper regard to the great width of the DPP’s discretion and polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits. This approach subsumes concerns about separation of powers.”

The public prosecutor is therefore left with the discretion to either prosecute or not prosecute in every individual case.

In conclusion. Where the decision to prosecute is exercised, courts should be slow to interfere with that decision unless it is manifestly clear that the decision was arrived at either erroneously or on the basis of irrelevant considerations thus amounting to an abuse of the criminal justice process. In support of this decision, one would find guidance in Thuita Mwangi and 2 others v Ethics and Anti-corruption Commission and 3 others (2013) e KLR as well as Kuria and 3 others v attorney general (2002) 2 KLR 69.

XXXXXXXXXXXXXXXXXXXXXXX

 

ALEXANDER MUTETI, ADVOCATE

LLB; MA

SENIOR ASSISTANT DIRECTOR OF PUBLIC PROSECUTIONS