The High Court has ruled that the Directorate of Criminal Investigations (DCI) has no powers to institute any criminal charges unless approved by the Office of the Director of Public Prosecutions (ODPP).
The verdict by Machakos High Court Judge Justice George Odunga (pictured) on Thursday arose from a case in which National Water Harvesting and Storage Authority Acting CEO Geoffrey Sang challenged a decision by the DCI to arrest and charge him.
Detectives had also in March tried to bypass the DPP and charge ex-Kenya Ports Authority boss Daniel Manduku before they were stopped by the court.
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The two offices have been embroiled in a supremacy war and the ruling should settle the question of chain of command.
Sang had argued that his arrest and interrogation, and the subsequent decision to charge him with the offence of abuse of office were maliciously instigated.
He told the court that individuals at the water agency had colluded with detectives to have him take a plea as a public officer so that he could step aside. He was later removed from the position.
Justice Odunga said no public prosecution may be undertaken by or under the authority of either the Inspector General of Police or the DCI without the DPP’s consent.
“A declaration that the 2nd respondent, the Director of Criminal Investigations has no power and authority to institute criminal proceedings before a court of law without the prior consent of the Director of Public Prosecution, and any proceedings so commenced are unconstitutional, illegal, unlawful, null and void ab initio.”
The judge said the mere fact that those entrusted with the powers of investigation have conducted their own independent investigations and, based thereon, arrived at a decision does not necessarily preclude the DPP from undertaking its mandate.
“Conversely, the DPP is not bound to prosecute simply because the investigating agencies have formed an opinion that a prosecution ought to be undertaken. The ultimate decision of what steps ought to be taken to enforce the criminal law is placed on the officer in charge of prosecution.
“It is not the rule, and hopefully it will never be, that suspected criminal offences must automatically be the subject of prosecution since public interest must, under our Constitution, be considered in deciding whether or not to institute prosecution.”
Justice Odunga said that in terms of prosecutorial powers, the DPP may direct the Inspector General of Police to investigate any information or allegation of criminal conduct and the Inspector General shall comply with any such direction. “Upon receipt of such directions, pursuant to Section 35 (h) of the National Police Service Act, the Inspector General of Police may direct the Directorate of Criminal Investigations to execute the directions given to the Inspector General by the Director of Public Prosecution pursuant to Article 157 (4) of the Constitution.
“Clearly, therefore, there is a clear chain of command set out above. When it comes to the exercise of prosecutorial powers, as between the three entities, the Director of the Public Prosecution has the last word,” he said.
The judge said while the DPP is not bound by any actions undertaken by the police in preventing crime or bringing criminals to book, he is enjoined, under Article 157(11) of the Constitution, to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.
“In other words, the DPP ought not to exercise his constitutional mandate arbitrarily.” Justice Odunga prohibited the DCI from instituting criminal proceedings against Sang unless the orders came from the DPP.
The court further held that the search and confiscation of Sang’s mobile phones and laptop without a court order or search warrant violated his right to privacy and property as envisaged in articles 31 and 40 of the Constitution.
Further, the court ruled that the DCI’s actions could not be a basis for Sang’s removal from office. The water agency boss was arrested over a suspected dam construction scandal. But he never answered to any charges as the DPP recalled his file for review.
“As regards the actions taken by the 4th respondent – the National Water Harvesting and Storage Authority board chairman – it is my view that those are matters which are better dealt with before the Employment and Labour Relations Court.”
Sang had been appointed during a board meeting held on November 18 last year for a period of six months or until a substantive chief executive was selected.
He told the court that on April 24, while going about his official duties, individuals who identified themselves to be DCI officers visited his office and informed him that they were conducting investigations touching on his conduct at the agency. They asked him to accompany them to their headquarters along Kiambu Road for interrogation.
The detectives also arrested two other employees – Lydia Korir (acting procurement manager) and Joseph Ojiambo (chief human resources officer). Sang and Ojiambo were questioned on their role in the appointments of Ms Korir and three other ‘strangers’ – Noah arap Too, Peter Mutai Bett and Nixon Kiprotich Bett.
The acting CEO said the allegations against him were malicious.
“They are motivated by sheer witch-hunt, which is evinced by the fact that one of the strangers alleged to have been hired, Mr Too, is deceased, having passed on May 6, 2015. It was only after the detectives had arrested Sang and his co-accused that the DPP refused to approve charges thus prompting police to extend their bail pending prosecution.
Public officers above 58 years and with pre-existing conditions told to work from home: The Standard
Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.
However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
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Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
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Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.
Uhuru convenes summit to review rising Covid-19 cases: The Standard
President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
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Drastic life changes affecting mental health
Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.
Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.
Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.
The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.
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With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.
In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020. It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.
A study by Dr. Habil Otanga, a Lecturer at the University of Nairobi, Department of Psychology says that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.
The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.
KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.
Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.
As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.
“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”
Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.
“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.
Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.
“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”
Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.
“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.
Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.
Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.
She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.
Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.
“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added
Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.
“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and also engage in reading that would help expand their knowledge.