FOREWORD

Traditional African societies in the pre-colonial era had elaborate justice systems dealing
both with civil and criminal wrongs. The advent of colonialism in 1895 saw the rise of
modern day formal justice based on English law which over time supplanted traditional
justice mechanisms.

In 1920 Kenya became a colony of the British Empire and criminal laws including the Penal
Code were enacted establishing an offences regime largely targeted at the indigenous African
population. Therefore, prosecutions were in essence, a colonial administrative tool of
suppression, taxation and racial discrimination of Africans, best exemplified by the
Kapenguria Six trial and the host of prosecutions conducted during the emergency period.
Prosecutions were conducted in the name of the Crown, largely by the Police and a few
advocates from Britain on behalf of the Colonial Office.

Independence from colonial rule bequeathed the Republic of Kenya, the application of
formal law, which granted the exercise of state powers of prosecution to the Attorney
General. These powers included the power to institute, takeover, continue and terminate
prosecutions through entering of nolle prosequi without the leave of the Court. Majority of
prosecutions in the post-independence era were conducted by the Police in the magistracy
level save for cases for which the High Court was the Court of first instance, such as, cases of
murder, treason and sedition. Bail could not be granted for offences attracting capital
punishment.

The intermittent independence of the Attorney General partly shaped the character of
prosecutions from independence to 2010, which were at times arbitrary or politically
influenced.

The promulgation of the Constitution in 2010 has heralded a new era of independence,
transparency and accountability in the exercise of state powers of prosecution. The
Constitution established an independent Director of Public Prosecutions to exercise
prosecutorial powers previously held by the Attorney General.

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 In 2007 the then Attorney General published the first edition of the National Prosecution
Policy, the first in Africa. Prior to this, public prosecutors had exercised prosecutorial powers
without the support of a clearly defined and documented policy framework. The first edition
of the Policy provided guidance to prosecutors on what they should consider in the conduct
of public prosecutions. The new Constitution brought forth the need for a review of the first
edition of the National Prosecution Policy to guide prosecutorial practice, institutional
development and mirror international standards and best practices.

The DPP was for the first time hired competitively and consequently the ODPP was
established. The DPP embarked on structural adjustments to better discharge the prosecution
function. This has seen the creation of four thematic directorates within the Office namely;
Offences against the Person, International Economic and Emerging Crimes, County Affairs
and Regulatory Prosecutions and Central Facilitation Services. Further, the DPP embarked
on a massive recruitment of personnel to service the directorates.

In this new era the exercise of prosecutorial powers must be with due recognition that they
are derived from the sovereignty of the people and must be employed within the confines of
the Constitution and the law1. This Policy expounds on the application of the powers in the
context of the principles of access to justice, open justice and human rights, as well as,
transparency and accountability.

The ODPP in the performance of its mandate faces the evolving challenge of emerging and
complex crime. This is further compounded by increased globalization and the proliferation
of trans-national crime. At the National level, this Policy emphasizes the need for inter-
agency cooperation particularly between the investigative and prosecutorial functions. At the
international level it recognizes the broader need for international cooperation with special
regard to mutual legal assistance.

The high standard of professionalism expected of prosecutors in the new Constitutional

dispensation demands a paradigm shift in the general conduct of prosecutions and especially
the decision to charge.

1
See Articles 1 and 2 of the Constitution of Kenya 2010.

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 The exercise of prosecutorial powers must be viewed in the context of contributing to the
national development goals. Efficient, effective and fair prosecutions is critical for the
promotion of the rule of law, fair administration of justice and a conducive and secure
environment for development. In performing this role, the DPP and officers subordinate
thereto are required to respect human rights and fundamental freedoms without
discrimination, the observance of the right to a fair trial and equality before the law. This
policy therefore, serves to demystify not only to prosecutors but also the public, the manner
in which prosecutorial decision-making is undertaken, showcasing how prosecutorial
discretion should be exercised based on clear, rational and principled examination of the
sufficiency of evidence and the public interest.

In this regard, this Policy sets out the factors to be considered when applying the two stage
test on the decision to charge. It further introduces the threshold test to address the
challenges arising from the constitutional “24 hour rule” 2 and makes provision for review of
charging decisions.

The Policy is a vital and indispensable tool for every prosecutor in their daily function. It also
provides guideposts on the selection of charges, and explains the various critical roles of the
prosecutor in and out of court and the essential considerations when discharging those roles.
It should also empower the public to demand a fair, efficient and effective prosecutorial
service.

We take pride in our development of the second edition of this Policy, for remaining the first
African Country to do so, which is yet another gain in the strengthening of a rule of law
culture in Kenya and beyond.

KERIAKO TOBIKO CBS, SC

DIRECTOR OF PUBLIC PROSECUTIONS

2
See Article 49(1)(f) on the rights of the arrested person; Constitution of Kenya 2010

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ACKNOWLEDGEMENT
This National Prosecution Policy is a result of collective and participatory efforts. The
Office of the Director of Public Prosecutions particularly recognizes the contribution of
Constant Gardener Trust (K) which supported the commencement of its review, including the
provision of the lead consultant, Prof. Migai Akech, who drafted the Second Edition of the
Policy and facilitated the stakeholder review forums.

The Office is grateful to the International Justice Mission-Kenya who supported the focus
group discussions that informed the content of this Policy.

We wish to extend our special gratitude to Gesellschaft für Internationale Zusammenarbeit

(GIZ) for their support in providing a consultant, Dr. Arbogast Akidiva, who undertook the
harmonization of the Policy together with other prosecutorial guidelines and the Code of
Conduct and Ethics for Prosecutors.

We acknowledge the contribution of our key stakeholders for their critique and review which
served to improve the final output of this Policy.

We most sincerely thank the ODPP management under the able stewardship of the DPP and
the SPP for their direction and personal commitment in guiding the review and
harmonization of this Policy.

Last but not least we make a special mention Mr. Alloys Kemo, Mrs. Rodah Ogoma, Mr.
Katto Wambua and Mr. Andrew Osundwa for their outstanding research and administrative
support towards the production of this Policy.

Table of Contents
Foreword.....................................................................................................................................................Ii
Acknowledgement.......................................................................................................................................6

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Table Of Contents.......................................................................................................................................7
Introduction.................................................................................................................................................1
Definitions...................................................................................................................................................2
3. Objectives Of The National Prosecution Policy......................................................................................3
4. The Roles Of The Prosecutor..................................................................................................................4
A. Principles And Values In Prosecution.................................................................................................4
B. Investigation And Prosecution.............................................................................................................5
Introduction.................................................................................................................................................5
1) Decision To Prosecute.........................................................................................................................6
2. The Evidential Test..............................................................................................................................6
3. The Public Interest Test.......................................................................................................................8
4. Selection Of Charges.........................................................................................................................11
5. Review Of The Decision To Prosecute..............................................................................................12
6. Alternatives To Trial.........................................................................................................................13
7. Role And Duties Of A Prosecutor.....................................................................................................15
C. Immunity From Prosecution..............................................................................................................16
D. Disclosure..........................................................................................................................................17
E. Expert Witnesses...............................................................................................................................18
F. Prosecuting Judicial Review Applications And Constitutional Petitions...........................................18
G. Prosecuting Appeals And Revisions..................................................................................................18
H. Rights, Protection And Wellfare Of Witnesses And Victims Of Crime.............................................20
I. Private Prosecution............................................................................................................................20
J. Complaints Processing.......................................................................................................................21
K. Collaboration And Cooperation.........................................................................................................21
L. Media.................................................................................................................................................21
M. Implementation And Review Of Policy.........................................................................................22

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Introduction
1.1 The Office of the Director of Public Prosecutions was established under Article 157 of the
Constitution of Kenya of 2010 (hereinafter the Constitution) establishes the Office of
Director of Public Prosecutions (ODPP). The Constitution and the Office of the Director of
Public Prosecutions Act (sections 26/27), provide that the Director of Public Prosecutions
(DPP) has two powers: the power to direct the Inspector General of the National Police
Service and any other investigative agency to investigate any information or allegation of
criminal conduct, and state powers of prosecution. With regard to the exercise of state
powers of prosecution, the DPP may institute, undertake, take over, continue or discontinue
at any stage before judgment (with the consent of the court) criminal proceedings against
any person before any court, other than a Court Martial. 3 The Office of the Director of
Public Prosecutions Act 2013 empowers the DPP to formulate a National Public Prosecution
Policy and keep it under regular review.

1.2 The DPP shall exercise his or her powers independently. The Constitution (WHAT
ARTICLE?) states that: (a) the DPP does not require the consent of any person or authority,
and (b) the DPP shall not act under the direction or control of any person or authority, while
exercising these powers.
1.3 Constitutionally, Parliament may enact legislation bestowing prosecutorial powers to any
other public institution or authority. Similarly, the Constitution and the ODPP Act allow the
institution of private prosecutions.
1.4 The DPP may exercise prosecutorial powers in person or through officers subordinate to him
or her, acting in accord with his or her general or special instructions. .
1.5 The Office of the Director of Public Prosecutions Act 2013 (Section 5(4) imposes the
following duties on the DPP:
a) To promote appropriate standards of practice by any person exercising
prosecutorial authority.

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(See General Prosecution Guidelines paras 1 and 2 page 8
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 b) To implement an effective prosecution mechanism so as to maintain the rule of
law and contribute to fair and equitable criminal justice and the effective protection of
citizens against crime.
c) To cooperate with the National Police Service, investigative agencies, the courts,
the legal profession and other Government agencies or institutions so as to ensure the
fairness and effectiveness of public prosecutions.
d) To set the qualification for the appointment of prosecutors.
e) To review the decision to prosecute,
f) To advise the State on all matters relating to the administration of criminal justice.

2. Definitions4

2.1 In this Policy:

Public Prosecutor means the DPP and any other person exercising delegated powers of the DPP
under Article 157(9) of the Constitution.

Investigating Officer means any person authorized by an Investigative Agency to undertake

criminal investigations.

Investigative Agency means National Police Service, Ethics and Anti-Corruption Commission,
Kenya National Commission on Human Rights, Commission on Administration of Justice,
Independent Police Oversight Authority, Kenya Revenue Authority, Anti-Counterfeit Agency or
any other Government entity mandated with criminal investigation under any written law.

3. Objectives of the National Prosecution Policy

3.1 The primary objective of this Prosecution Policy is to state the general principles that Public
Prosecutors should apply when executing the prosecution mandate.

4
See General Prosecution Guidelines paras 11-13 Page 10

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3.2 In particular, this Prosecution Policy seeks to:
a) Ensure prosecutions are conducted in a manner that meets the requirements of the
Constitution;
b) Ensure prosecutions are conducted in a professional and ethical manner;
c) Guide the conduct, performance and direction of prosecutions.;
d) Ensure that decisions of the ODPP are reasoned and based on objective and
ascertainable criteria;
e) Ensure public accountability in the exercise of prosecutorial authority; and
f) Ensure that the exercise of the prosecutorial authority inspires public confidence
and trust.
g) Accordingly, this Prosecution Policy will guide Public and private prosecutors in the
exercise of their powers under the Constitution, applicable laws and regulations.

4. The Roles of the Prosecutor5

4.1 The Prosecutors` roles in the justice system include:

a) Instituting criminal proceedings against accused persons,
b) Preparing charges. In this regard, it should be noted that the selection of the charges to be
preferred to the accused person is an integral part of the decision to prosecute.
c) Providing legal advice to the Inspector General of the National Police Service and other
investigative agencies.
d) Conducting criminal trials.
e) Reviewing decision to charge
f) Prosecuting bail and other applications.
g) Prosecuting judicial review applications, constitutional petitions with regard to criminal
matters.
h) Negotiating plea agreements with an accused person or his representative.
i) Considering alternative criminal prosecution mechanisms such as diversion.
5
See General Prosecution Guideline’s chapter four: role of the prosecutor in advising and
directing investigations pages 27-35; ACECA chapter eight page 32.
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j) Assisting the court in the sentencing process.
k) Prosecuting appeals and revision in the Appellate Courts.
l) Handling public complaints.
m) Facilitating the protection, rights and welfare of witnesses and victims of crime;
protection,
n) Facilitating compensation and recovery of proceeds of crime.

A. Principles And Values In Prosecution

State powers of prosecution are derived from the people and vest in and shall be exercised by
the DPP and Officers subordinate to him or her. Prosecutors therefore, must uphold the
supremacy of the Constitution and be guided by the National Values and Principles of
Governance enshrined in Article 10 of the Constitution. Consequently, the practice of
prosecution should uphold respect and promotion of human rights, rule of law, integrity and
ethics, independence, professionalism, fairness, impartiality and inter-agency collaboration.

In prosecution, Prosecutors should be guided by the public interest, the interest of the
administration of justice and the need to prevent the abuse of the legal process. Various roles
of the Prosecutor are aspects of “administrative action” which must be procedurally fair,
expeditious, efficient, lawful, reasoned an impartial in decision making as envisaged in
Article 47.

The DPP and Prosecutors must at all times conform with provisions of Chapter 6 of the
Constitution on leadership and integrity, Leadership and Integrity Act 2012, Public Officer
Ethics Act 2003 and the Code of Conduct and Ethics for Public Prosecutors. Specifically,
they must act in a manner that Further, Article 73 states that the authority assigned to a State
Officer is a public trust that must be exercised in a manner that, recognizes that their
authority is a public trust and promotes public confidence in the integrity of the office.

B. Investigation And Prosecution

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Introduction
Prosecutors rely on the work done by investigators for their work. This does not imply that
investigators are in any sense “clients” or “subjects” of prosecutors. The functions of
prosecutors and investigators are complimentary in nature. In this regard, consultations and
collaboration are inevitable in efficient investigations and prosecutions. In the discharge of
their respective mandates, Prosecutors should direct and guide investigations, while
Investigators should seek and receive advice from prosecutors in respect of the law, charges
and evidence.

The nature of direction and advice will include; appropriate charges that may be preferred,
sufficiency of evidence, reliability and admissibility of evidence, the applicable law,
disclosure of material, as well as issues relating to appeals and revisions.

1) Decision To Prosecute

In exercising the prosecution mandate the DPP is constitutionally bound to have due regard
to public interest, the interests of the administration of justice and the need to prevent and
avoid abuse of the legal process. This provision applies equally to the DPP and officers
acting on his or her behalf. This requirement is generally accepted as an international best
practice whose origins are in common law.

The decision to prosecute as a concept envisages two basic components, namely, that the
evidence available is admissible and sufficient and that public interest requires a prosecution
be conducted. This is what is commonly referred to as the Two-Stage Test in making the
decision to prosecute.

Each aspect of the test must be separately considered and satisfied before the decision to
charge is made The Evidential Test must be satisfied before the Public Interest Test is
considered.

2. The Evidential Test

Public Prosecutors in applying the evidential test should objectively assess the totality of
the evidence both for and against the suspect and satisfy themselves that it establishes a
realistic prospect of conviction. In other words, Public Prosecutors should ask

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 themselves; would an impartial tribunal convict on the basis of the evidence available?
To make this determination, Public Prosecutors should therefore consider the following:

a) If the identity of the accused is clearly established through admissible evidence.

b) The strength of the rebuttal evidence.
c) Would the evidence be excluded on the basis of its inadmissibility, for instance
under the hearsay and the bad character rules?
d) Reliability of the evidence considering; whether there would be concern about
accuracy, credibility or motivation of the witnesses? What is the suspect`s
explanation?, Is the confession believable?, How was evidence obtained?
i. Is there further evidence which would be required? The standard of evidence required
under the Evidentiary Test is less than the Court`s “beyond reasonable doubt”
standard for conviction.
ii. In some cases the available evidence at the time may not be sufficient to determine
the Evidential Test, that is, “realistic prospect of conviction”. In such circumstances,
Public Prosecutors should apply the “Threshold Test” in order to make the decision
whether or not to charge.
iii. For example, relevant expert evidence or evidence required to determine bail risk
may not be available within the limited time of arraignment of a suspect before court.
Such are the instances that necessitate the application of the Threshold Test.
iv. A prosecutor shall considers the following conditions in applying the Threshold Test:
(i) The evidence available is insufficient to apply the Evidential Test.
(ii) There are reasonable grounds to believe that evidence will become available in
good time.
(iii) The seriousness of the matter and the circumstances of the case justify the
making of an immediate decision to charge
v. The obtaining circumstances necessitate the making of an application for the denial of
grant of bail.
vi. If the obtaining circumstances do not fall within the conditions above a decision to
charge should not be made.

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vii. Where the case does not pass the Evidential Test it must not go ahead, no matter how
serious it may be. Public Prosecutors can only apply the Public Interest Test when
the Evidential Test is satisfied.

3. The Public Interest Test

Public interest in relation to the decision to charge is the positive presumption that
prosecution should ensue where the evidence discloses a contravention of criminal law.

Although the evidence in a case involving a suspect who is a minor, may provide a
reasonable prospect of conviction, the weight of public interest may tend against prosecution.
Conversely where the offence or offender`s criminal record is serious, public interest tends
towards a prosecution.

The assessment of the public interest test is not simply a sum of the factors tending towards
or against a prosecution but rather the assessment of each case on its own merit

In doing so, Public Prosecutors must determine the weight accorded to each public interest
factor based on the circumstances of each case and make an overall assessment. In this
assessment one factor may outweigh a number of factors tending towards a different
conclusion.

Absence of a factor should not be construed as tending against or tending towards a

prosecution.

Common public interest factors to be considered when taking the most appropriate action in
assessment of Public Interest Test are listed below. The lists of Public Interest factors below
are not exhaustive and each case must be considered on its own merit.

i. Common Factors Tending in Favor of Prosecution

It may be necessary to prosecute a suspect if:

a) The offence is serious and attracts a grave penalty upon conviction.

b) The offence involved the use of a weapon or violence, or threat of violence;

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 c) The offence was committed against a State Officer or a Public Officer (such as a Police
officer), or a citizen providing essential services (such as a doctor or nurse);

d) The suspect is in a position of authority, and there is a danger of setting a bad precedent if
the suspect is not prosecuted;

e) The suspect was a ring-leader or an organizer of the offence;

f) The victim of the offence was a child, or a person with disability, or a person vulnerable
on account of age or mental capacity;

g) The offence was motivated by discrimination against the victim, or a class to which the
victim belongs;

h) The suspect is a habitual offender;

i) The offence has had a serious impact on the victim;

j) The offence is prevalent in the community; and

k) Prosecution would have a significant positive impact on maintaining community

confidence in the criminal justice system.

ii. Common Factors Tending against Prosecution6

It may not be necessary to prosecute a suspect if:

a) The court is likely to impose a nominal penalty or the offence is of a trivial nature;

b) The Prosecution is merely likely to assist the complainant to leverage the criminal justice
system so as to gain a benefit, for example, collect debts;

c) The suspect has been subject to any appropriate regulatory proceedings (for example,
censure by a tribunal), and which adequately addresses the seriousness of the offending;

d) The offence was committed as a result of a genuine mistake or misunderstanding;

e) There has been a long delay between the commission of the offence and the trial, unless:

6
See National Prosecution Policy para 7.18(a-h) Pages14-15 ;ACECA 4.12-4.13 Pages 21-22
8
(i) The offence is serious;

(ii) The delay can largely be attributed to the suspect;

(iii) The offence has only recently come to light;

(iv) The complexity of the offence has necessitated a long investigation; or

(v) New investigative techniques have been used to re-examine previously unresolved crimes
and, as a result, a suspect has been identified.

k) The suspect has admitted guilt, shown repentance, made restitution, or expressed a
willingness to cooperate with the authorities in the investigation or prosecution of others;

l) The objectives of the criminal law would be better served through alternatives to
prosecution;

m) It would not be prudent to apply the State’s resources to prosecute the suspect;

n) There are suitable diversion programmes particularly for children and young offenders.

Although Public Interest factors tending against a prosecution may exist, Public Prosecutors
should consider proceeding with the prosecution and have those factors ventilated in court.

4. Selection Of Charges

When a decision to prosecute has been made, the decision as to what charges should be laid
necessarily follows. The selection of charges should adequately and appropriately address the
alleged offence. The Prosecutor should select charges that:-

a) Are Defined in law

b) Reflects the gravity of the alleged offence;
c) Can lawfully, reasonably and conveniently be tried together or in groups;
d) Enable the case to be presented in a Court in a concise and comprehensive
manner; and
e) Provide for all suitable ancillary orders.

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The Prosecutor must ensure that the charges are properly drafted according to requisite
standards and legal requirements in Sections 134-137 of the Criminal Procedure Code and
case law. This means that the Prosecutor should ensure that; the provisions of the law are
applicable and correctly cited in the charge sheet, the charge is not duplex, and the evidence
at hand supports the charge.

5. Review Of The Decision To Prosecute

It is the duty of the Prosecutor to continually review prosecutions once commenced. This
should be informed by a change in circumstances following which a re-application of the
decision to prosecute indicates that the evidence is no longer sufficient to justify a
reasonable prospect of conviction or when it is no longer in the interest of justice for the
prosecution to continue.

Where initially the decision taken was not to prosecute or to discontinue a prosecution the
decision must be reversed upon consideration of circumstances such as:-

a) The fact that an error or oversight informed the decision which upon review is
apparently wrong or misguided,
b) Where significant evidence was anticipated and did not materialize,
c) Where there was temporary discontinuance to facilitate the gathering of additional
evidence, provided that the discontinuance was not to operate as an acquittal, or
d) Where the discontinuance was obtained illegally obtained.

6. Alternatives To Trial
Speedy disposal of matters in the justice system is a critical component to enhancing access
to justice. In the same breath considerable resources are saved by exploring alternative to
prosecutions, such as plea negotiation and agreement, diversion, and alternative and
traditional dispute resolution mechanisms.

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a) Plea Negotiation and Agreement
After the accused person has been charged or at any time before judgment, at the
instance of the Prosecutor, accused person or the legal representative may initiate the
resolution of a matter by agreeing to the accused person pleading guilty to fewer or
lesser charges. This may also include in appropriate circumstances, the withdrawal of
a charge or a stay of other charges, or the promise not to proceed with other possible
charges.

In these instances three tests must be satisfied; that there is sufficient admissible
evidence to sustain the charges for which the offer of plea relates, the charges
adequately reflect the culpability of the accused, the charges give the court adequate
scope to impose appropriate penalty.

A plea agreement entered into between the Public Prosecutor and the accused person
or legal representative may provide for the payment by the accused of any restitution
or compensation.

Plea Negotiation and Agreements are governed by sections 137A to 137O and the
Plea Negotiation and Agreement Rules of the Criminal Procedure Code.

Public Prosecutors should seek the permission of the DPP or other authorized officer
before entering into plea agreements.

Public Prosecutors must remain aware of the right of the accused to withdraw any
plea of guilty and that no plea agreement may be entered where the offences
involved fall under the Sexual Offences Act of 2006, offences of genocide and
crimes against humanity.

b) Diversion

In contemplating alternatives to trial, due consideration should be given to waving

prosecution, discontinuing proceedings, either conditionally or unconditionally, or

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 diverting cases from the formal justice system. This should be done with full respect for
the rights of the suspects and the victims.

Diversion is encouraged particularly in cases of children in conflict with the law. It is

premised on the principle of the best interests of the child, and the need to rehabilitate
such children and avoid their stigmatization and adverse effects of custodial sentence.

c) Alternative dispute resolution mechanisms

The Constitution under Article 159 (2) (c) and Section 176 of the Criminal Procedure
Code provide for reconciliation and compensation in cases of misdemeanors relating
to assault or offences of a personal nature and Prosecutors are encouraged to promote
the same to decongest case-backlog.

d) Traditional dispute resolution mechanisms

Traditional dispute resolution mechanisms are permissible under Article 159 (3) of
the Constitution and in their application, Prosecutors shall be guided by legal
principles applicable thereto, namely; they shall not contravene the Bill of Rights, be
repugnant to justice and morality or result in outcomes that are repugnant to justice
and morality, or be inconsistent with the Constitution or the written law.

7. ROLE AND DUTIES OF A PROSECUTOR

Prosecutors have a central place in the administration of justice. They have both a
role and duty promote and comply with the rule of law. As a “minister of justice”
Prosecutors must fairly and objectively assist the court to arrive at a fair
determination.

Therefore the Prosecutor must play the advocacy role courteously, temperately,
diligently and firmly. Prosecutors have a duty to adequately prepare for trial,

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 including the holding of pre-trial conferences. In this connection, Prosecutors should
continually review their cases so as to redress issues as and when they arise.

The Prosecutor has a duty to disclose to the accused or the legal representatives all
the evidence and materials the prosecution intends to rely upon and additionally to
present the case professionally and intelligibly.

Prosecutors should assist the court through accurate submission of law and fact,
refrain from expressing personal opinions, and strive to correct all appealable errors
on record both in trial and sentencing.

Prosecutors should apply to withdraw from proceeding with a case if it becomes

apparent that there is no longer a reasonable prospect of conviction.

Additionally, Prosecutors have a duty to adduce relevant evidence that may assist the
court in the sentencing process. They also have a role in ensuring the protection,
rights and welfare of witnesses and victims of crime as well as ensuring
compensation and recovery of proceeds of crime.

C. IMMUNITY FROM PROSECUTION

As a general rule, suspects of crime should be prosecuted without granting immunity so
as to testify against the crimes of others. However, it is recognized that in some cases,
this requirement is inevitable. Consequently prosecution should strategically weigh the
available options. For instance, a Prosecutor may in the public interest require the
evidence of an accomplice to prove a case against a more culpable suspect.

The decision to grant immunity and the balancing of the options is often influenced by:
(i) The seriousness of the offence;
(ii) The admissibility and reliability evidence;
(iii) Exhaustion of all avenues of obtaining sufficient evidence;

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 (iv)The nature of evidence to be given under immunity should be admissible, relevant
and that it significantly strengthens the prosecution case;
(v) The accomplice is not an equal or greater risk to the public interest than the person to
be tried;
(vi) A confirmation that no inducement has been suggested to the witness;

The decision to grant immunity is the preserve of the DPP and should be given to the
witness in writing and copies availed to the defense and the court. The consideration of
whether or not to grant immunity to an accomplice can be done during investigations or
in making the decision to charge.

Apart from immunity granted to an accomplice, Prosecutors as well as investigators must

appraise themselves of other forms of immunity provided under the Constitution,
International Law, Regional Conventions, Treaties and Bilateral Agreements as well as
statutes such as the Privileges and Immunities Act, Cap 179 and the Evidence Act Cap
80.

D. DISCLOSURE
The constitutional duty to disclose is a requirement on the part of the prosecutor, which
subsists throughout the trial process. What should be disclosed includes: all evidence to
be relied on by the Prosecutor; the previous convictions of the accused, the complainant,
prosecution witnesses as well as a victim; all witness statements; and the known witness
character evidence capable of impeaching prosecution witnesses.

It is imperative to note that material may be covered by legal professional privilege, such
as confidential legal advice by a Prosecutor to an Investigator and it is generally not to be
disclosed. Additionally, internal records and communication used by the prosecution in
preparation of the case is not disclosable. The obligation to disclose excludes material
relevant only to the credibility of the defense’s witnesses or the accused.

E. EXPERT WITNESSES

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 In the interests of justice, expert witnesses have an overriding duty to assist the court by
providing independent evidence in the form of objective unbiased opinion in their field of
expertise based on their knowledge and experience. Therefore, it is the duty of the
Prosecutor to ensure that this requirement is met.
F. PROSECUTING JUDICIAL REVIEW APPLICATIONS AND
CONSTITUTIONAL PETITIONS
When handling petitions, references and judicial review applications, a Prosecutor should
consider the human rights of the parties involved, the interests of the administration of
justice and the need to prevent the abuse of the legal process.

G. PROSECUTING APPEALS AND REVISIONS

Ordinarily, appeals maybe made against convictions, sentences or interlocutory orders. A
Prosecutor’s duty is to assist the court to arrive at a just and proper disposal of the appeal.

Prosecutors should only appeal based on points of law and public interest. The decision
to appeal must not be influenced by any of the following factors:
a) The race, national or ethnic origin, colour, religion, sex, political associations,
activities or beliefs of the accused or any other person involved in the case;
b) The Public Prosecutor’s personal feelings about the accused, the victim, or the
court;
c) Possible political advantage or disadvantage to the government, special interest
group or political party; or
d) The possible effect of the decision on the personal or professional circumstances
of those responsible for making the decision to appeal.

The Prosecutor has a duty to consider whether or not to apply for a retrial in appropriate
cases. In making this decision the Prosecutor should consider the following factors:

a) The nature and seriousness of the offence;

b) The strength of the prosecution’s case;
c) Availability of witnesses;

15
 d) The lapse of time since the alleged offence was committed;
e) The extent to which the sentence has been served; and,
f) The views of the victim, his/ her family and the investigation officer.

If an appellant is unrepresented the Prosecutor should examine the case and identify
omitted grounds of appeal which may also be available.

To review cases, the DPP may apply in exceptional cases for the review of a sentence on
the basis that it was determined based on an error of law or principle or that it is
manifestly inadequate or excessive.

A Prosecutor may invoke the High Court’s revisionary powers seeking to examine the
record of any criminal proceedings before any Subordinate Court for the purpose of
satisfying itself as to the correctness, legality or propriety of any finding, sentence or
order recorded or passed, and regularity of the proceedings.

H. RIGHTS, PROTECTION AND WELLFARE OF WITNESSES AND VICTIMS OF

CRIME

Victims of crime and vulnerable witnesses have special needs and interests in
proceedings that impact on their ability to effectively give evidence if left unattended. It
is in the public interest to facilitate the reporting of crime and effective prosecution which
should be promoted by treating them with respect and supporting them through the
process.

Prosecutors have a duty to ensure the rights, care, protection and welfare of witnesses and
victims of crime are upheld. Additionally, where it is appropriate for the court to award
compensation or restitution for harm of loss, the prosecutor should ensure that the court is
fully and appropriately addressed on all relevant circumstances.

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I. PRIVATE PROSECUTION
Where private prosecutions are instituted in the public interest, the person so doing shall
within thirty days, notify the DPP in writing of such prosecution. This is to enable the
DPP to respond to the suitability of the prosecution and whether leave should be granted
by the court to allow the intended prosecution to proceed.

If a private prosecution is allowed to proceed, the person undertaking it must comply

with all the provisions of the law and this policy in the institution and conduct of the
prosecution. When considering whether or not to take over a private prosecution the
following factors should be taken into account: the interests of justice; the seriousness of
the offence; the views of any interested parties; any possible duplication of proceedings;
consistency with previous decisions; and the prospects of a fair trial.

J. COMPLAINTS PROCESSING
A Prosecutor has the duty to ensure fair, effectives and efficient processing of complaints
raised by any person that touch on the ODPP.

Any such complaints should be handled with a high degree of professionalism and
sensitivity to the core values that govern the ODPP, with special emphasis on integrity.

The ODPP shall analyze and manage any data and feedback relating to complaints with a
view to resolving them, and identifying and rectifying any gaps in the Prosecution
Service.

K. COLLABORATION AND COOPERATION

Prosecutors shall co-operate with law enforcement agencies and all other relevant
stakeholders, both nationally and internationally, with a view to ensuring the fairness,
efficiency and effectiveness of public prosecutions.

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 In particular, Prosecutors and Investigators shall have regard to the provisions of Section
5 (3) and 27 of the ODPP Act, 2013 on Prosecution-guided investigations and on the duty
to cooperate, respectively.

L. MEDIA
The impact of the criminal justice system depends partly on acceptance by the
community. That acceptance can only be maintained if the community is educated about
the justice process and receives fair and accurate information about criminal cases. This
information is best disseminated by the media.

It is the role of the Prosecutor to provide relevant and appropriate information that is
accurate, complete and timely.

In communication with the media, a prosecutor should limit themselves to confirming

facts that are already in the public domain when requested, the settled future course of
events (such as the trial date) and general open information about a case.

In general Prosecutors should not discuss with the media on matters such as: the
expression of their personal opinions; policy issues; personalities; intended approach in
relation to the press; any part of proceedings not conducted in open court; personal
particulars of victims, witnesses or juvenile offenders; information that may lead to
identification of protected persons; privileged information; the existence of plea
negotiations or possibility of a plea of guilty or other disposition; evidence not adduced in
court or excluded at trial.

It should however be noted that general communication with the media requires the
express authority of the DPP.
M. IMPLEMENTATION AND REVIEW OF POLICY
This Policy repeals the National Prosecution Policy 2007. It shall come into effect on
[date]. The Policy shall be reviewed from time to time and any changes thereof will be
made public.

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