EGERTON UNIVERSITY

NAKURU TOWN CAMPUS

FACULTY OF ARTS & SOCIAL SCIENCES

DEPARTMENT OF PEACE, SECURITY & SOCIAL STUDIES

FIELD ATTACHMENT REPORT SUBMITTED TO THE

DEPARTMENT OF PEACE, SECURITY AND SOCIAL STUDIES

IN PARTIAL FULFILLMENT FOR THE DEGREE OF

BACHELOR OF ARTS IN CRIMINOLOGY AND SECURITY

STUDIES AT EGERTON UNIVERSITY

PRESENTED TO:

DR. HADIJA MURENGA

PRESENTED BY:

MUGADA MARTINE

AP 193/30507/12

THE OFFICE OF THE DIRECTOR OF PUBLIC

PROSECUTIONS (ODPP) NAKURU

JANUARY – MAY 2015

ii

Table of Contents

Figures........................................................................................................................................... iv

Tables ............................................................................................................................................ iv

CHAPTER ONE

1 THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS NAKURU............. 1

1.1 INTRODUCTION .................................................................................................................... 1

1.2 Vision: ....................................................................................................................................... 1

1.3 Mission:..................................................................................................................................... 1

1.4 Mandate:.................................................................................................................................... 1

1.5 Objectives.................................................................................................................................. 1

1.6 Core Values:.............................................................................................................................. 2

1.7 Code of Conduct ....................................................................................................................... 2

1.8 Responsibilities of an Attaché .................................................................................................. 4

1.9 Security by an Attaché .............................................................................................................. 5

2 HISTORICAL BACKGROUND.............................................................................................. 6

2.1 The Old Constitution of Kenya ................................................................................................. 6

2.2 The Constitution of Kenya 2010 and Establishment of the ODPP ........................................... 6

CHAPTER TWO

3 ORGANIZATIONAL STRUCTURE, STAFFING & DEPARTMENTAL

PROGRAMMES AND OPERATIONAL MANDATE............................................................. 7

3.1 ORGANIZATIONAL STRUCTURE ...................................................................................... 7

3.2 STAFFING ............................................................................................................................... 9

3.2.1 Number of staff for the Nakuru Office .................................................................................. 9

3.2.2 Posting/Deployment of Staff................................................................................................ 10

3.2.3 Current Staffing Levels Nationally ...................................................................................... 10

3.2.4 Recruitment .......................................................................................................................... 10

3.2.5 Resourcing and development ............................................................................................... 11

3.3 DEPARTMENTAL PROGRAMMES AND OPERATIONAL MANDATE........................ 12

3.3.1 Department of offences against person ................................................................................ 12

3.3.2 Department of economic international and emerging crimes .............................................. 12

3.3.3 Department of county affairs and regulatory prosecutions .................................................. 13

iii

3.4 MANDATE, POWER AND CORE FUNCTIONS OF THE ODPP:..................................... 13

3.4.1 Constitutional Functions ...................................................................................................... 13

3.4.2 Core Functions ..................................................................................................................... 13

CHAPTER THREE

4 CORE FUNCTIONS ANALYSIS .......................................................................................... 15

4.1 INTRODUCTION .................................................................................................................. 15

4.2 SWOT ANALYSIS ................................................................................................................ 15

4.2.1 Internal environmental factors ............................................................................................. 15

4.2.2 External environmental factors ............................................................................................ 16

4.3 STRATEGIC OBJECTIVES .................................................................................................. 17

4.4 TARGET GROUPS ................................................................................................................ 18

4.5 STAKEHOLDERS THAT ARE IN LIASON WITH THE ODPP ........................................ 18

4.5.1 Office of the Director of Public Prosecutions staff.............................................................. 19

4.5.2 Community .......................................................................................................................... 19

4.5.3 Judiciary ............................................................................................................................... 19

4.5.4 Law society of Kenya .......................................................................................................... 19

4.5.5 Public Service Commission of Kenya ................................................................................. 19

4.5.6 Ethics and Anti-corruption Commission ............................................................................. 20

4.5.7 National Crime Research Centre.......................................................................................... 20

4.5.8 Probation and aftercare department ..................................................................................... 20

4.5.9 Kenya police service ............................................................................................................ 20

4.5.10 Kenya prison service .......................................................................................................... 20

5 ACHIEVEMENTS OF INDUSRTIAL ATTACHMENT .................................................... 21

5.1 THE IMPORTANCE OF INDUSTRIAL ATTACHMENT .................................................. 21

5.2 OBJECTIVES OF INDUSTRIAL ATTACHMENT ............................................................. 21

5.3 PARTICIPATION AND SKILLS LEARNT ......................................................................... 21

6 SKILLS ACQUIRED .............................................................................................................. 22

6.1 Plea agreement and plea bargaining agreement drafting ........................................................ 23

6.3 Sample official letters drafted: ................................................................................................ 28

6.4 Sample of a charge sheet:........................................................................................................ 29

CHAPTER FOUR

iv

7 CHALLENGES, RECOMMENDATIONS & CONCLUSION .......................................... 30

7.1 CHALLENGES ...................................................................................................................... 30

7.1.1 Lack of motivation for attachés ........................................................................................... 30

7.1.2 Inaudibility in court.............................................................................................................. 30

7.1.3 Inadequate equipment and facilities in the ODPP Nakuru .................................................. 30

7.1.4 Limited automation of services............................................................................................ 30

7.1.5 Longer sitting hours with limited recreational facilities ...................................................... 31

7.16 Capacity constraints within other criminal justice agencies ................................................. 31

7.1.7 Pressure learning and understanding new things within a shorter time frame .................... 31

7.1.8 Red tape in the department................................................................................................... 31

7.2 RECOMMENDATIONS TO MITIGATE THE CHALLENGES ......................................... 31

7.2.1 Recommendations to the Office: ......................................................................................... 31

7.2.2 Recommendations to the University: ................................................................................... 32

7.3 CONCLUSION ....................................................................................................................... 33

Figures

Figure 1: Office of the Director of Public Prosecutions Organizational Structure ......................... 8

Tables

Table 1: Number of staff for the Nakuru office .............................................................................. 9

Table 2: current staff scenario....................................................................................................... 10

Table 3: group training conducted during the period.................................................................... 11

1

CHAPTER ONE

1 THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS NAKURU

1.1 INTRODUCTION

I was attached in Nakuru County from January 2015 at The Office of the Director of Public

Prosecutions (ODPP) Nakuru County office in Rift Valley under the Department of County

Affairs & Regulatory Prosecutions which serves Nakuru, Njoro, Subukia and Rongai Districts.

The County in general has 26 Prosecution Counsels categorized geographically as follows: 3 in

Molo, 6 in Naivasha and 17 in Nakuru offices. In addition, there are also gazzetted Police

Prosecutors within Nakuru County as follows geographically: 6 are located at Nakuru office, 2 in

Molo office and 4 in Naivasha office (12 Police Prosecutors in total). The Nakuru office has 1

Senior Assistant Director of Public Prosecutions and a capacity of 17 Prosecution Counsels, 2

Secretaries, 4 Clerical Officers, 1 Process Server, 1 Driver and 1 Senior Support Assistant. I was

posted in Nakuru together with other four students from Kenya School of Law (KSL)

undertaking their pupilage there. According to the Judiciary, the major criminal cases in Nakuru

include: assaults, robbery, defilement, land matters, creating disturbance, petty offences like

illicit brews, traffic, defilement, and robbery with violence.

1.2 Vision:

To be an independent prosecutorial Authority providing efficient, effective, fair and just

prosecution service for the people of Kenya.

1.3 Mission:

To serve the public by providing quality, impartial and timely prosecution services anchored

on the values and principles enshrined in the Constitution.

1.4 Mandate:

The mandate of the ODPP as derived from Article 157 of the Constitution is to institute and

to undertake prosecution of criminal matters and all other aspects incidental thereto.

1.5 Objectives

Instituting and undertaking criminal proceedings against any person. These proceedings

may be instituted before any court other than a court martial.

2

Taking over and continuing any criminal proceedings instituted or undertaken by another

person or authority.

Discontinuing at any stage before judgment is delivered in any criminal proceedings.

To direct the Inspector-General of the National Police Service to investigate any

information or allegation of criminal conduct.

To ensure due regard to the public interest, the interest of the administration of justice

and the prevention and avoidance of abuse of legal process.

1.6 Core Values:

The ODPP’s Core Values are:

Respect and promotion of Human Rights and the rule of law;

1) Integrity and Ethics;

2) Professionalism;

3) Fairness and impartiality;

4) Courtesy and respect as well as

5) Teamwork

1.7 Code of Conduct

The Code of Conduct and Ethics for public prosecutors lays down the standards of conduct and

practice for public prosecutors working for, or on behalf of, the Attorney General of the Republic

of Kenya. It is aimed at helping Public Prosecutors play their part in making sure that justice is

done.

Public Prosecutors shall:

1) Respect and obey the law;

2) At all times maintain the honor and dignity of their profession;

3) Always conduct themselves professionally, in accordance with the law and the

rules and ethics of their profession;

4) At all times exercise the highest standards of integrity and care;

5) Keep themselves well-informed and abreast of relevant legal developments;

6) Strive to be seen to be, consistent, independent, fair and impartial;

3

7) Have regard to accused persons right to a fair trial and in particular ensure that

evidence favorable to the accused person is disclosed in accordance with the law

and the requirements of a fair trial;

8) Respect, protect and uphold universal concept of human dignity and human

rights;

9) Always serve and protect the public interest.

At all times, Public Prosecutors shall:

1) Not compromise the actual, or the reasonably perceived, integrity, impartiality, fairness

or independence of their activities in their private life;

2) Not belong to any organization, which by way of its policies or actions, is clearly

committed to acting contrary to the law or to the interests of criminal justice system;

3) Not take part in any political or other public activity which compromises, or might be

seen to compromise, their integrity, impartiality, fairness or independence. They should

conduct themselves in such a way as to retain public confidence in their professional

conduct;

4) Not attempt to frustrate or influence Government policy, decisions or activities by

unauthorized, improper or premature of any information that has been acquired through

their employment as prosecutors;

5) Not use any information to which they have had access during their course of

employment to further their own private interests or those of others;

6) Not accept gifts, prizes, benefits, inducements or hospitality from a third party which may

be seen to compromise their integrity, impartiality, fairness or independence.

The following list of ethical standards should be observed by interns including the ones

above:

1) Corruption and misconduct

2) Working at a competence level

3) Maintaining appropriate interpersonal relationships

4) Justice and fairness

5) Confidentiality and ethics.

4

1.8 Responsibilities of an Attaché

The attaché/Pupil will be expected to:

a) Report to the place of attachment/pupilage according to the institution’s normal working

hours.

b) Faithfully serve under the assigned prosecution counsel as his/her attaché/pupil for the

term or such other period as the attaching organization will appoint and approve from

time to time.

c) Obey and execute all lawful and reasonable instructions given by the prosecution counsel

and will not depart or absent himself or her from the service at any time during the

attachment without prior written consent of the trainer.

d) Acquire relevant skill in his/her areas of specialization, and at all times avoid acting as a

prosecution counsel or solicit any person who at any time during the term period was a

client of office of director public prosecutions.

e) Avoid all activities or acts that may be detrimental to the well being of office of director

public prosecutions and the Public Service, and shall during the attachment term and

afterwards not diverge the secrets of or cancel, obliterate, spoil ,destroy, waste or take

away with him or her any of the office of the director public prosecutions’ documents and

in case the attaché shall act contra-wise to this provision, or if the office of the director

public prosecution shall sustain or suffer any loss, damage or prejudice by the misconduct

or neglect of the attaché , the attaché will upon demand make good the amount of value

thereof.

f) Complete in time all assignments given by the trainer.

g) Make a written report on the attachment and furnish it to the training institution and

Office of the Director Public Prosecutions (ODPP) not later than a week after the

completion of the attachment.

h) Observe confidentiality and security of tools, equipment and documents at his/his

disposal.

i) Ensure that any property/equipment/materials issued to the end of the attachment period.

j) Required to meet any cost of loss or damage to the Office of the Director Public

Prosecutions property lost or damaged while at hi/her disposal.

5

1.9 Security by an Attaché

To ensure the security and confidentiality of the Office of the Director Public Prosecution

information and safety of equipment, the attaché will be subjected to Office of the Director

Public Prosecution vetting and will be required to sign a security declaration form designed for

this purpose. In order to maintain that confidentiality and security of information, the following

will be undertaken:

(a) All attaches must acquire certificate of good conduct.

(b) General personal information for the attaché will be maintained by the Office of the

Director Public Prosecutions.

(c) A copy of the National ID or passport to be retained by Office of the Director Public

Prosecution.

(d) Any tools issued to the attaché must be signed for and returned at the end of the

attachment.

6

2 HISTORICAL BACKGROUND

2.1 The Old Constitution of Kenya

Before the promulgation of the constitution of Kenya 2010, the prosecution function was

discharged by the Attorney General (AG) through the former Department of Public Prosecutions,

as was provided under Section 26 of the old constitution. The Department of Public Prosecutions

was just one of the departments of the larger State Law Office (SLO). All Central Facilitation

Services (CFS) were centrally provided under the leadership of the Solicitor General (SG) who

was the Principal Administrator and Accounting Officer in the States Law Office (SLO).

The Office of the Director of Public Prosecutions (ODPP) officially delinked from the State Law

Office on the 1st of July 2011.

2.2 The Constitution of Kenya 2010 and Establishment of the ODPP

Article 157 of the Constitution of Kenya 2010, established an independent Office of the Director

of Public Prosecutions, with the aim of ensuring a revamped, professional, and accountable

prosecution service.

The promulgation of the new Constitution necessitated the recruitment of a Director of Public

Prosecutions (DPP) as a substantive head of the ODPP. Pending the recruitment of the DPP, the

transitional provisions of the constitution (under Schedule VI- Section 31(5)) required the

Attorney General to perform the functions of the DPP. The AG through Legal Notice no. 134 of

2010 delegated the prosecutorial powers to a Chief Public Prosecutor.

The first DPP under the Constitution of Kenya 2010 was competitively and publicly recruited

and assumed office on the 20th of June 2011.

Prosecution services are delivered through Headquarters, counties, division, courts, penal

institutions and communities. It is located at prosecution headquarters, counties, divisions, Law

Courts, Penal Institutions and within the community.

7

CHAPTER TWO

3 ORGANIZATIONAL STRUCTURE, STAFFING & DEPARTMENTAL

PROGRAMMES AND OPERATIONAL MANDATE

3.1 ORGANIZATIONAL STRUCTURE

A good and sound organizational structure is very critical to the operations of any organizations.

It not only stimulates a smooth and efficient running of an organization but also eases the

administrative rigidity and red taping in terms of policy formulations and decision making.

Further, it assists in proper planning and budgeting.

To ensure consistent delivery of services to the public and cooperation with stakeholders it

became imperative to develop an organizational structure for the ODPP informed by a

comprehensive workforce/workload analysis and bench marking with contemporary international

best practices.

The new structure for the ODPP created underneath the DPP, the office of the Secretary, Public

Prosecutions and four broad thematic Departments namely: Offences against the Person,

Economic International and Emerging Crimes, County Affairs Regulatory Prosecutions, and

Central Facilitation Services. Each of these departments is headed by a Deputy Director.

In each of the Departments, there are Divisions, Sections and Units dealing with various areas of

specialization.

Further explanation of the proposed organizational structure of the Office of the Director of

Public Prosecutions that is currently operational at the Head Quarters in Nairobi is shown by

figure 1 in the next page

8

Figure 1: Office of the Director of Public Prosecutions Organizational Structure

KEY

Administrative Reporting

Reporting/Technical Reporting

Director of Public Prosecutions

Executive secretariat

Complaints, Reform and

liaison

Library Section

Research and

Development

Section

Resource Centre

Division

Secretary Public

Prosecutions

Department of

County Affairs &

Regulatory

Prosecutions

Department of

Offences against the

Person

Department of

Economic &

International

Emerging Crimes

Department of

Central Facilitation

Services

Administration

Division

County Affairs

Division

Anti-Corruption

& Economic

Crimes Division

Penal Code

Offences Division

Robbery &

attempted Sections

Human Resource

Division

Delegated

Prosecution

Service Division

Planning

Division

Narcotics,

Organized

Cyber Crime

Division

Property

Offence Section

General &

Regulatory

Offences

Division

Murder section

Finance Division

Extradition,

MLA &

International

Co-operation

Division

Sexual & Gender-

Based Offences

Division

Accounts

Division

Chief County

Prosecutor

Human Rights &

Judicial Review

Division

ICT Division

Counter-Terrorism

Division

Audit Division

Piracy & Maritime

Division

Supreme Court &

Appeals Division

Public Affairs & Corporate Comm. Division

Supply Chain Management Division

War Crimes, Genocide

& Crimes against

Humanity Division

Children, Victims &

Witnesses Support

Division

Prosecution Registry Division

9

3.2 STAFFING

The ODPP is committed to ensuring that highly efficient and effective staff serves the public. It

aspires to be a value-led organization that is independent, fair and observes human rights.

The office strives for excellence, working as one team to provide service delivery to the public

with responsible use of taxpayers’ money. This is why it recognizes the need to build a strong

and professional workforce through a people-centered focus.

3.2.1 Number of staff for the Nakuru Office

Table 1: Number of staff for the Nakuru office

S/NO. DESIGNATION GRADE PROPOSED

NUMBER

1 Senior Assistant Director of Public

Prosecutions.

DPP 4 1

2 Assistant Director of Public

Prosecutions

DPP 5 2

3 Senior Principal Prosecution Counsel DPP 6 1

4 Principal Prosecution Counsel DPP7 1

5 Senior Prosecution Counsel DPP 8 4

6 Prosecution Counsel II/1 DPP 10/9 5

7 Chief Prosecution Assistant DPP 6 2

8 Principal Prosecution Assistant DPP 7 3

9 Prosecution Assistant III/II/I/Senior DPP 11/10/9/8 6

10 Personal Secretary II/I DPP 11/10 2

11 Process Server II/I/ Senior/Court

Bailiff

DPP 14/13/12/11 1

12 Clerical Officer II/I Senior Chief DPP 14/13/12 2

13 Driver III/II/I/Senior/Chief DPP 16/15/14/13/12 1

14 Support Staff Senior /Cleaning

Supervisor I/IIA/IIB

DPP 16/15/14/13 2

The subtotal therefore should be 33.

10

3.2.2 Posting/Deployment of Staff

The SLO supported the operationalization of the ODPP by posting temporary Central Facilitation

Services staff to assist in start-up activities such as accounts, human resources, finance and

administration.

3.2.3 Current Staffing Levels Nationally

At present ODPP staffing levels are less than 50% of the optimal level indicated in the staffing

level reviews. This is despite recruitments being carried out and staff being posted from the

wider service. This scenario indicates that the ODPP’s capacity to deliver its mandate remains

inadequate. This was supported by the workload and SWOT analyses both of which indicated the

need for additional prosecutors and CFS staff.

The current scenario is provided by the analysis below:

Table 2: current staff scenario

Staff category In post Required Deficit

Prosecution counsel 169 927 453

Police prosecutors 305

Central facilitation

services staff

188 370 182

Total 662 1297 635

Source: Office of the Director of Public Prosecutions (ODPP) the First Progress Report

(Pursuant To the Provisions of Articles (2) (c), 35, 232 (1) (f) and 254 of the Constitution and

Section 7 of the ODPP Act, 2013) For the Period 1st July 2011-30th June 2013

3.2.4 Recruitment

To meet the optimal staffing levels the office embarked on a major recruitment drive. This

recruitment process is ongoing and is being implemented in phases.

Initially, the office sought authorization and concurrence of both the Ministry of State for Public

Service and the Treasury to recruit various cadres of staff from the job market, which approval

was granted. The approval allowed the recruitment of 130 prosecution counsel and 37 Central

Facilitation Service staff annually to fill the deficit.

11

So far, the ODPP has managed to recruit a total of 87 prosecution counsel 65 Central Facilitation

Service staff and is in the process of recruiting an additional 180 legal staff and 88 Central

Facilitation Service staff.

The total number of promotions by the PSC and also the ODPP Human Resource Management

Advisory Committee are 56 legal staff and 37 non-legal staff.

3.2.5 Resourcing and development

Continuous staff capacity building and development is key in enhancing employee satisfaction

and performance.

In the financial year 2011/2012 the office set aside 18.2 million to be utilized on training and

capacity building. The ODPP carried out a Training Needs Assessment (TNA) for staff

countrywide, recognizing that a well-capacitated ODPP would ensure quality service delivery to

the public.

Several trainings, both individually and group were undertaken during the period under review of

the first progress of the ODPP as part of the ODPP’s capacity building initiatives. Individual

trainings included postgraduate, higher diploma, diploma and certificate courses, most of which

were ODPP sponsored.

Other group trainings apart from the support of other international partners were the joint

initiatives between the office and other government departments. The areas of group training and

the numbers of officers trained are captured in the table below:

Table 3: group training conducted during the period

Counter Terrorism 35

Sexual And Gender Based Violence (SGBV) 35

Anti-Money Laundering And Mutual Legal

Assistance

30

Human Rights In The Administration Of

Justice

30

Trial Advocacy 29

12

International Criminal Justice 19

Fraud Investigation 18

Hate Speech 5

Cybercrime 3

Public Relations & Customer Care 13

Source: Office of the Director of Public Prosecutions (ODPP) the First Progress Report

(Pursuant To the Provisions of Articles (2) (c), 35, 232 (1) (f) and 254 of the Constitution and

Section 7 of the ODPP Act, 2013) For the Period 1st July 2011-30th June 2013

3.3 DEPARTMENTAL PROGRAMMES AND OPERATIONAL MANDATE

Establishment and Operationalization of Specialized Thematic Divisions and Sections

The new structure established three technical departments to cater for the varied thematic areas

of prosecution, namely: Offences against the Person, Economic International and Emerging

Crimes, and County Affairs Regulatory Prosecutions. The departments are further divided into

specialized divisions and sections.

A department of Central Facilitation Services was also established to provide administrative

support to the technical departments, as well as other Office operations.

3.3.1 Department of offences against person

This department deals with prosecutions relating to all penal code offences, SGBV, juvenile

offences as well as human rights, judicial review and appeals. This department contributed

immensely in the promotion of the Bill of rights and the prosecution of numerous constitutional

petitions and judicial review applications during the reporting period.

3.3.2 Department of economic international and emerging crimes

The department is responsible for prosecution of corruption and economic crimes, narcotics,

organized crime, money laundering, piracy and terrorism cases. It also handles mutual legal

assistance and extradition requests.

The bulk of the operational work of the department comprised the handling of anti-corruption

and economic crime cases whose performance is statutorily accounted for both quarterly and

annually under the provisions of the Anti-Corruption and Economic Crimes Act.

13

3.3.3 Department of county affairs and regulatory prosecutions

The department of county affairs and regulatory prosecutions was set up to ensure efficient

management of all ODPP County Offices and to exercise control and supervision over delegated

and regulatory prosecutions. The department has been critical in the ODPP’s drive towards

devolving its services to all Kenyans by coordinating the opening of new offices.

During the reporting period, the department also offered guidance and collaborated with

numerous agencies exercising agencies exercising delegated powers of prosecution such as the

Kenya Revenue Authority, Kenya Wildlife Service, Kenya Forest Service, Immigration and

Registration of Persons amongst others.

3.4 MANDATE, POWER AND CORE FUNCTIONS OF THE ODPP:

The office of the DPP is mandated to undertake the following functions:

3.4.1 Constitutional Functions

1. To exercise prosecutorial powers by:

Instituting and undertaking criminal proceedings against any person. These proceedings may be

instituted before any court other than a court martial; Taking over and continuing any criminal

proceedings instituted or undertaken by another person or authority; and Discontinuing at any

stage before judgment is delivered in any criminal proceedings.

2. To direct the Inspector-General of the National Police Service to investigate any

information or allegation of criminal conduct; and

3. To ensure due regard to the public interest, the interest of the administration of justice

and the prevention and avoidance of abuse of legal process.

3.4.2 Core Functions

The core functions of the office of the ODPP include prosecution of those charged by the police

and other investigative agencies with criminal offences while upholding, protecting and

promoting human and constitutional rights. Specifically the functions are as follows:

1) Undertaking public prosecution of cases forwarded by investigative agencies

including cases taken over from private prosecutors.

2) Representing the state in all criminal trials, criminal applications and appeals.

14

3) Directing and supervising the conduct of all criminal investigations.

4) Advising the police and other criminal investigative and prosecutorial agencies on the

institution of criminal charges.

5) Reviewing prosecutions to ensure that accused persons are prosecuted on the right

charges before the appropriate court.

6) Handling of matters relating to international relations including extradition and

Mutual Legal Assistance (MLA).

7) Advising Government ministries, Departments and State corporations on matters

pertaining to the application and development of criminal law.

8) Formulation, review and dissemination of Prosecution Policy.

9) Monitoring, training, appointment and gazettement of public prosecutors.

10) Addressing parliamentary questions relating to administration of prosecution service.

11) Addressing complaints raised by members by members of the public, watchdog

bodies and other institutions.

12) Provide support for victims and witnesses of offences.

13) Undertaking other administrative duties relating to efficient and effective

administration of criminal law in the country.

15

CHAPTER THREE

4 CORE FUNCTIONS ANALYSIS

4.1 INTRODUCTION

This chapter outlines an analysis of ODPP using Strength, Weaknesses, Opportunities and

Threats (SWOT) and stakeholders’ analyses to outline objectively various factors that have the

potential of affecting the objectives achievement.

4.2 SWOT ANALYSIS

This part carries an analysis of factors that impact on the ODPP’s performance of its duties and

the realization of its strategies and objectives from both internal and external perspectives. It

evaluates the competencies within the organization with a view to establishing whether it has the

requisite capability to achieve its objectives and to realize its mission and vision. The tables

below outlines the strengths, weaknesses, opportunities and threats:-

4.2.1 Internal environmental factors

Table 1: Internal Environmental Factors

Strengths Weaknesses

The ODPP Constitutional Mandate

under Article 157

Decisional autonomy and independence

Clear identity

Existing experience and structure

Established Central Facilitation

Services

Established network of offices across

the country

Code of Conduct and Prosecution

Policy in place

Centrality and significance in the

Understanding

Poor leadership and management skills

Lack of succession management plans

Bureaucratic processes and procedures

Lack of financial, administrative and

operational independence

Inadequate budgetary allocation

Weak/ineffective performance

management system

Lack of monitoring and evaluation

framework

Inadequate professionalization of

16

Criminal Justice System prosecution services

Heavy workload

Weak collaboration and coordination

with stakeholders

High level of staff attrition

Lack of staff retention strategy

Poor work life balance

Limited adoption of Information and

Communication Technology(ICT)

Lack of criminal law reform

mechanism to continuously update the

various laws that impact prosecution

services

Lack of a comprehensive and

networked complaints handling

mechanism

Poor work ethics and weak

organizational culture.

4.2.2 External environmental factors

Table 2: External Environmental Factors

Opportunities Threats

Recognition of crime prevention as a

key in the realization of the vision 2030

Development partners support and

good will

Fresh beginning in light of the new

Constitution dispensation

Linkages and networking with regional

and international prosecution bodies

Unpredictable political goodwill

Politicization and ethnicization of the

fight against crime

Bureaucratic systems and procedures

Better terms and conditions of service

by comparative organizations

Existence of conditional ties from

development partners

17

Advancement in ICT

Government commitment to reforms

Large pool of competent professionals

in the market

New policy and legal framework

The planned absorption of police

prosecutors into the ODPP

Political goodwill

Existence of National Crime Research

Centre (NCRC) & Witness Protection

Agency (WPA)

Escalation and complexity of emerging

crime

Rapid advancement in ICT

HIV/AIDS impact

Drugs and substance abuse

Competition for limited resources

Challenges and capacity constraints

within other criminal justice agencies

Weak inter-agency collaboration and

co-operation

Delay in review and modernization of

criminal and penal laws

Expanded liberties under the new

constitution

Inconsistent and unpredictable legal

jurisprudence

Poor public image and perception

Lack of public trust and confidence

Inflation

4.3 STRATEGIC OBJECTIVES

This strategy defines where this organization wants to be in the short and long term by

addressing the strategic issues emanating from the situational analysis, the shortcomings

experienced and the lessons learned in the previous strategies captured under the State Law

Office Strategic Plan and the strategic issues raised under vision 2030.

To operationalize Article 157 of the constitution.

To formulate internal policies and frameworks.

To strengthen legal and institutional framework.

To enhance staff capacity.

18

To create a conducive work environment.

To embrace ICT in work operations.

To implement quality management system.

To strengthen and promote inter-agency co-operation & collaboration both nationally and

internationally.

To conduct cases efficiently, professionally and ethically.

To provide professional and timely advice to the investigative and other agencies.

To enhance accessibility of prosecution services to all Kenyans.

To revamp the image of the ODPP.

To create a strong organizational culture.

To strengthen facilitation of witnesses and assistance to victims of offences.

To facilitate quality investigations.

To mainstream cross cutting issues.

4.4 TARGET GROUPS

Prosecution counsels

Witnesses

Offenders.

Justice Agencies.

Learning Institutions.

The Community at large

4.5 STAKEHOLDERS THAT ARE IN LIASON WITH THE ODPP

ODPP stakeholders include its staff, members of the public, government ministries, Departments

and agencies among others who in different ways impact the exercise of the prosecution

functions in the country. It also includes those directly or indirectly affected by the actions of the

ODPP as a result of mutual interaction, or those on whom the ODPP directly depends for the full

realization of its mandate. There are various stakeholders that work hand in hand with the ODPP

and are listed below;

19

4.5.1 Office of the Director of Public Prosecutions staff

For smooth running of the department of county affairs & regulatory prosecutions, the ODPP’s

expectations of the stakeholders include; high performance in discharge of the core mandate,

integrity and ethics, confidentiality, professionalism, specialization, teamwork, respect and

courtesy, transparency and accountability, creativity and innovation.

4.5.2 Community

The success of the prosecution of criminal matters depends largely on the cooperation from the

community. The community is expected to continue providing reliable information about the

accused person(s) by willing to testify as witnesses in court so that court is furnished with the

right information on which to base sentences.

4.5.3 Judiciary

The judiciary is instrumental in the criminal justice administration system for it determines the

nature of sentences to be meted on offenders, the expectation of the department of county affairs

& regulatory prosecutions is that judiciary cooperates with the department in ensuring that

there’s expeditious disposal of cases, development of coherent jurisprudence and respect and

courtesy by ensuring justice has been speedily and timely dispensed since each department

complement the other.

4.5.4 Law society of Kenya

Department of county affairs & regulatory prosecutions is expected to uphold the rule of law,

collaborate in bettering the justice system and offering professional services by the law society

while the law society of Kenya is expected by department of county affairs & regulatory

prosecutions to collaborate in development of professional standards, continuous professional

development, uphold the integrity of the legal profession and to reign in on rogue lawyers.

4.5.5 Public Service Commission of Kenya

Department of county affairs & regulatory prosecutions in liaison with the public service

commission of Kenya ensures compliance with the Public Officer Ethics Act (POEA) and

provision of guidelines on public code of conduct.

20

4.5.6 Ethics and Anti-corruption Commission

The department of county affairs & regulatory prosecutions expects Ethics & Anti-Corruption

Commission to carry out thorough and comprehensive investigations, collaboration and

cooperation in investigation of cases whereas the prosecution department is expected to

expeditiously and professionally advice on files, be efficient and effective in prosecution of

cases, collaboration on ethics and governance issues.

4.5.7 National Crime Research Centre

Department of county affairs & regulatory prosecutions collaboration in crime research with the

National Crime Research Centre NCRC; NCRC is required to authenticate and reliable,

collaboration in the formulation of policy on crime prevention.

4.5.8 Probation and aftercare department

Department of county affairs & regulatory prosecutions expectations of the probation and

aftercare department in facilitation of their role in the justice system is to conduct thorough and

comprehensive inquiry on suspects, offenders and victims of crime and forward inquiry report to

the prosecution department.

4.5.9 Kenya police service

This department will be important in thorough and comprehensive investigations, professional

handling of exhibits/evidence, upholding the rule of law, collaboration and cooperation in

investigation of cases, executing the warrants of arrests applied by the prosecution officers and

issued by the courts. The prosecution department will work closely with the Kenya police in

order to ensure that court orders are complied with.

4.5.10 Kenya prison service

The Kenya prison is a sister department to probation in the office of the vice-president and the

ministry of Home Affairs. The department will continue to partner and collaborate with the

department of prosecutions and that one of probation to foster greater offender rehabilitation

approaches by timely presentation of prisoners to court, and upholding the rule of law.

21

5 ACHIEVEMENTS OF INDUSRTIAL ATTACHMENT

5.1 THE IMPORTANCE OF INDUSTRIAL ATTACHMENT

It develops the practical and communication skills or competence of trainees.

Provides to the trainee background information and experience in career choice.

It enhances training.

It develops the trainee’s personality and understanding of individual and groups in work

situations.

5.2 OBJECTIVES OF INDUSTRIAL ATTACHMENT

To provide a meaningful experience to students in the area of specialization.

To realize the difference between theory and practice.

Familiarizing with industrial organizations.

Attachés’ will be able to;

1. To gain as much as possible a diversified experience

2. Learn as much is practically possible about their industry and general industrial

organizations.

3. To be given the same treatment as any other employee except as to be provided

elsewhere.

4. To report to work from Monday to Friday except as may otherwise be provided

elsewhere.

5. To complete all industrial work experience assignments given by supervisor.

6. To learn as much as possible about his trade and about the industry through meaningful

work and co-operation with fellow employees.

5.3 PARTICIPATION AND SKILLS LEARNT

During the period of attachment, I was involved in performing some activities with the help of

my supervisor. In return I was able to acquire some skills and knowledge in this field as shown,

below is a summary of the roles undertaken.

1. Submitting reports to courts

2. Compiling reports

22

3. Giving legal advice/opinion to police files and other investigative agencies

4. Prosecution of those charged by the police and other investigative agencies with

criminal offences

5. Keep up to date records in diary.

6. Amendment of charge sheet

7. Instituting of criminal matters in court

8. Drafting of summons

9. Upholding the rule of law

10. Plea taking and plea agreements

11. Withdrawal of criminal matters in a court of law

Other duties

Receiving and directing clients around the office as well as referring them

accordingly

Conducting courier duties- letter delivering.

Maintaining office tidiness and neatness, both inside and the environs.

Assisting officers in administrative function.

6 SKILLS ACQUIRED

Court process and functioning

Public Relations

Drafting official letters

File making and keeping

Report writing

Examination, cross examination and re-examination of witnesses in court

Record keeping

Some of the cases I have dealt with includes:-

23

6.1 Plea agreement and plea bargaining agreement drafting

1) REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL CASE NO 21 OF 2013

REPUBLIC

Versus

LERI LOLONGONJINE

PLEA AGREEMENT

This agreement is made pursuant to Section 137A-O of the Criminal Procedure Code,

Cap 75 Laws of Kenya.

LERI LOLONGONJINE hereinafter referred to as the accused person, agrees as follows:

PART. 1 THE PLEA

1. The accused person is entering into this plea Agreement and is pleading guilty freely and

voluntarily without promise or benefit of any kind, other than as contained herein, and without

threats, force, intimidation, or coercion of any kind.

2. The accused person knowingly, voluntarily, and truthfully admits the facts contained herein.

3. The accused person agrees to plead guilty to the charge of Manslaughter contrary to section 202

as read with Section 205 of the Penal Code.

4. The accused person admits that he is guilty of the offence of Manslaughter contrary to section

202 as read with section 205 of the Penal Code. And that he understands every element of the

charge including the penalties provided by law.

5. If the court accepts the plea agreement and the accused person fulfils each of the terms and

conditions of this Plea Agreement, the states agrees as follows:

a) To withdraw the charge(s) of murder contrary to Section 203 as read with section 204 of the

Penal Code.

24

b) To state other charge(s) already registered.

6. The accused person also understands and this Plea Agreement affects only the Criminal

charge(s) herein and shall not be construed, in whole or in part, as a waiver, settlement, or

compromise of any civil or administrative remedies available to the national government, or any

agency, or authority, or county government.

7. The accused person agrees that if the Court rejects his Plea Agreement, this Plea Agreement shall

be rendered null and void no party shall be bound by it.

PART 2.ADVICE ON RIGHTS

8. The accused person has been advised of his Constitutional Rights, including his right to a trial,

his right to examine and cross examine witnesses against him, and he has knowingly and

voluntarily waived these rights and privileges and agrees to enter the plea of guilty as set forth

herein.

PART3. FACTUAL BASIS OF OFFENCE(S) CHARGED

9. Had this case gone to trial, the state would have presented evidence sufficient to prove the

following facts:

That on the 17th day of February, 2013 LERI LOLONGOJINE accused person, while armed

with a thick stick, confronted the accused Fred Lemasagarai, the deceased, at Loikumkum

village in Samburu North District within Samburu County.

That the accused person used the thick to hit/beat the deceased several times during the

confrontation as a result, the deceased was rescued by members of the public who then rushed

him to the district hospital and pronounced dead while undergoing treatment.

That a postmortem examination performed on the deceased body on the 30 th day of December,

2013 at Nyahururu district hospital revealed that the cause of death of the deceased was due to

cardio respiratory arrest secondary to severe hemorrhage caused by severe cut wounds.

25

PART 4 BREACH OF THE PLEA AGREEMENT

10. The accused person shall at all times give complete, truthful and accurate informa tion and

testimony, and he agrees not to commit, or attempt, any act in furtherance of offence the subject

matter of this plea agreement.

11. The accused person understands that this Plea Agreement does not protect him from prosecution

for perjury, should he testify untruthfully at any proceeding, or for making false statement.

12. Should the accused person fail to comply with the terms and conditions set forth in this Plea

Agreement, the State may fully prosecute the accused person on all criminal charges that can be

brought against him.

PART 5 NO OTHER AGREEMENTS

13. No promise, agreements, or conditions have been entered into with respect to the charges herein

other than those expressly set out in this Plea Agreement, and none shall be entered into or are

binding upon the accused person and the State unless expressly set forth herein in writing and

signed by the parties to this plea agreement

.

Dated at Nakuru this………………….day of……………………………….2014

ACKNOWLEDGEMENTS

A. By the accused: LERI LOLONGOJINE

I LERI LOLONGOJINE, hereby expressly acknowledge the following:

a) THAT I have read this Plea Agreement

b) THAT I have had an opportunity to discuss this Plea Agreement fully and freely with my

Advocate on record.

26

c) THAT I fully and completely understand each and every term of this agreement.

d) THAT I have signed this Plea Agreement knowingly, freely and voluntarily.

…………………………………………………………………………………………………….

SIGNATURE DATE

B. BY THE ADVOCATE ON RECORD FOR THE ACCUSED

I H.N CHEGE, being the Advocate on record for LERI LOLONGOJINE, herein the accused,

expressly acknowledges the following:

a) THAT I have discussed with and explained to the accused person the terms of this Plea

Agreement;

b) THAT I have fully answered each question put to me by the accused person regarding this Plea

Agreement; and

c) In my opinion, the accused person fully understands the terms of this Plea Agreement.

H.N CHEGE

………………………………………………………………………………………………………

…..

SIGNATURE DATE

(Advocate on record for the accused person)

ON BEHALF OF THE STATE

………………………………………………………………………………………………………

……

SIGNATURE DATE………..

N.K.K

(Prosecution Counsel, Nakuru)

27

2) REPUBLIC OF KENYA

IN THE HIGH COURT AT NAKURU

CRIMINAL CASE NO 66 OF 2012

REPUBLIC

-Versus-

SIMON SAUMU

PLEA BARGAINING AGREEMENT

REPUBLIC -PROSECUTION

SIMON SAUMU- ACCUSED PERSON

Agreement between the accused and the Director of Public Prosecutions Kenya upon entering a

plea of guilty, the accused person will be sentenced by the court.

The accused Simon Saumu agrees-

A.

i. He will enter a plea of guilty to the information Criminal Case no 66 of 2012, charging him with

the offence of Manslaughter contrary to section 202 as read with 205 of Penal Code.

ii. He acknowledges his responsibility for the conduct charged in the information at Crimina l Case

66 of 2012, and stipulates that the conduct charged in that court may be considered by the court.

B. In consideration of and entirely contingent upon the provisions of part A and B of this

Agreement, the prosecution counsel for the County of Nakuru agrees to the following-

i. The prosecution counsel for the county of Nakuru will make no recommendations as to the

specific sentence that the court should impose, but will provide the court with any and all

information pertaining to the sentencing including but limited to all relevant conduct.

ii. The prosecution counsel will take any position he/she deems appropriate in the course of any

appeals from the sentence or response to any past sentence.

28

6.3 Sample official letter drafted:

3) Sample letter:

The OCS,

Bondeni Police Station,

3rd March 2015

Nakuru

RE: COURT FILE- 2766/14 POLICE FILE-768/220/14

REPUBLIC VERSUS CLINTON SAGINA KOROMBASI

OFFENCE: ARSON CONTRARY TO SECTION 332(a) OF THE PENAL CODE

The above matter refers

The matter was ntioned in court on 24th February 2015. The police file was not availed in court.

This is unacceptable.

Signature ……………

HILLARY B. I

PROSECUTION COUNSEL

FOR: DIRECTOR OF PUBLIC PROSECUTION

29

6.4 Sample of a charge sheet:

Police 5

THE KENYA POLICE

CHARGE SHEET

Police case ………………..

Date to court …………….

Court file no……………….

OB. NO ……………

Christian

names in full

or names

Surname or

father’s name

Identity

certificate

no

Nil

Sex

m/f

Nationality

or tribe

Kenyans.

Apparent

age

Adults

Address

(including

district

and

location

where

applicable)

Charge ……………………………………………………………………………………………

Particulars of

the offence

..........................................................................................

Accused

arrested

Yes/no

Date of arrest Without

or with

warrant

Date

apprehension

report to

court

Bond or

bail and

amount

Is

application

made for

summons

to issue

Remanded or

adjourned to

…………………………………………………………………………………

Complainant(s)

and address

……………….

Witnesses ……………………………………………………….

Sentence

Court and date

………………………..

…………………….. If fined ……………

Officer in Charge……………….. Police Station…………………….

30

CHAPTER FOUR

7 CHALLENGES, RECOMMENDATIONS & CONCLUSION

7.1 CHALLENGES

Despite making significant milestones at the Office of the Director of Public Prosecutions at

Nakuru county office during my attachment period January-April 2015, I was also confronted

with various challenges and constraints. This chapter outlines some of my key challenges and I

have spelt out the recommendations to mitigate the challenges.

7.1.1 Lack of motivation for attachés

Sometimes it becomes challenging coming to work daily and early in the morning without some

sort of motivation. Interns may feel being misused with all the knowledge they have acquired

over time or may feel sidelined from the reality of office operations like not being integrated in

meetings and trainings. This makes others to feel frustrated, withdrawn and motionless.

7.1.2 Inaudibility in court

I have experienced challenges sometimes listening to a judge, a prosecutor or an advocate even

witnesses or accused persons taking pleas with lower voice in court proceedings severally. This

makes one to strain listening to decisions being made hence you may end up keeping wrong

records at times far different from what was stated in court.

7.1.3 Inadequate equipment and facilities in the ODPP Nakuru

Despite good working environment at the ODPP Nakuru, necessary facilities to improve the

efficiency of the prosecutors in discharge of their functions like carrying out research online

about decided legal matters and the trends of emerging crime by keeping themselves abreast with

latest matters is limited i.e. shortages of computers and stationeries. The office is less digitalized;

this in turn hampers devolution of services at county level in meeting vision 2030.

7.1.4 Limited automation of services

The systems at the Office of the Director of Public Prosecutions at Nakuru are by and at large

manual resulting in cumbersome and lengthy processes, as well as delay in the delivery of

services.

31

7.1.5 Longer sitting hours with limited recreational facilities

At the office, most of the time is spent sited busy doing perusal of files and writing legal matters

and advices on police files; this with time reduces the concentration level of an individual due to

pressure and fatigue whereas there’s no recreational facilities like halls or fields to refresh from

the tedious tasks in office.

7.16 Capacity constraints within other criminal justice agencies

A number of the other key agencies within the criminal justice system such as the police,

probation and the courts suffer acute financial and capacity constraints that inevitably affect the

efficiency in service delivery, especially prosecutions. The criminal justice system is like a chain,

and is only as strong as its weakest link.

7.1.7 Pressure learning and understanding new things within a shorter time frame

Sometimes it becomes challenging for students to absorb everything learnt at their place of field

attachment in such a shorter period of time and making a comprehensive report about the same.

It requires hard work, dedication and positivity within an individual which can be at times

compromised by the external or internal environment.

7.1.8 Red tape in the department

There are some issues that attaches are not allowed at all to try like instituting criminal matters in

court, prosecuting or examination and re-examination of witnesses in court and accused persons

plea taking processes, instead attaches are just allowed to take notes and listen to the

proceedings.

7.2 RECOMMENDATIONS TO MITIGATE THE CHALLENGES

7.2.1 Recommendations to the Office:

There’s need for increased budgetary allocation for the Office of the Director of Public

Prosecutions hence everything today for smooth running revolves around capital. These also will

contribute to an effective justice system in Kenya. Also security for prosecutors should be

considered, it’s a risky job yet they have government vehicles with the logo of the ODPP making

it easier to be identified from far, also the issue of some investigating officers coming to court

with exposed pistols to the public is risky to the other court users in many ways.

32

The office should involve the attaches in seminars and trainings so as to enhance enlightenment

to all and this may eventually benefit the organization because it’s a way of motivation and

making them feel recognized.

The management should come up with strategies to neutralize the bureaucratic system to be more

flexible so as to enhance efficiency unlike how they are currently resulting to delays on certain

urgent matters.

The office therefore should also motivate the trainees through provision of small incentives like a

small pay package on monthly basis as a sign of recognition and appreciation to carter for some

basic needs.

There’s need for adequate provision of office equipments and stationeries to enhance efficiency

and effectiveness to all users and attaches.

Also there’s need for comprehensive business optimization, including automation where

necessary in order to keep up with technological advancement. This should be undertaken under

the Information and Communication Technology (ICT) strategy framework through good

budgetary allocation.

Attachés should be included in meetings and decision making in the department. This makes

their presence to be felt and appreciated.

Trainees should also be given a chance to take part in instituting and prosecuting some of the

simple matters in court during the period they are in department hence learning is well done by

doing practically rather than sitting and watching the counsels’ everyday doing the same things.

For those in court with inaudible voices, the court should embrace digitalization by providing to

magistrates, judges, counsels, advocates, witnesses and accused persons included with some

microphones to enhance clarity in speech for better decisions in future.

7.2.2 Recommendations to the University:

The school department dealing with attachés should organize suitable programs for them which

suit their particular specializations. This can be achieved better through creation of links between

learning institutions and the relevant institutions out there in order to avoid situations whereby

33

students start late their attachment or defer because they were unable to achieve their target

objectives.

There’s also need to enlighten students while still in school through external speakers on career

talks in order for them to be able to distinguish among the several choices and qualifications and

their interests in pursuing careers thereafter in the job market. Lack of basic knowledge

concerning career matters makes many students to be in a dilemma making the right decisions

after school.

7.3 CONCLUSION

I acknowledge the key roles that Mr. A. J. Omutelema-Senior Supervisor (Senior Assistant

Director of Public Prosecutions), Mr. Rabera O. M - my supervisor (Senior Prosecution

Counsel), other prosecution counsel’s, and other staff members at the ODPP Nakuru have played

in making my attachment period a success. I also thank my parents for all round support, the

school and the government of Kenya and numerous partners who have played different roles in

contribution to my success. The Office of the Director of Public Prosecution staff deficits should

be urgently addressed. The requisite resources should be made available to the office to ensure

an effective justice system with minimal delays in conclusion of cases.

34

REFERENCES:

1. Office of the Director of Public Prosecutions Act, No. 2 of 2013 Published by the

National Council for Law Reporting with the Authority of the Attorney-General

www.kenyalaw.org

2. Office of the Director of Public Prosecutions Human Resource Manual.

3. Office of the Director of Public Prosecutions Strategic Plan 2011-2015 (March 2012 final

draft).

4. Office of the Director of Public Prosecutions (ODPP) the First Progress Report (Pursuant

To the Provisions of Articles (2) (c), 35, 232 (1) (f) and 254 of the Constitution and

Section 7 of the ODPP Act, 2013) for the Period 1st July 2011-30th June 2013.

5. Republic of Kenya Code of Conduct and Ethics for Public Prosecutors State Law Office

Department of Public Prosecutions 2007.

6. Task Force Report on the Organizational Structure and Staffing Levels of the Office of

The Director Of Public Prosecutions by The Office of The Director of Public

Prosecutions and The Ministry of State for Public Service.

7. The Constitution of Kenya Revised Edition 2010 Published by the National Council for

Law Reporting with the Authority of the Attorney General.

8. Witness Protection Act Chapter 79 Revised Edition 2012 [2006] Published by the

National Council for Law Reporting with the Authority of the Attorney-General

www.kenyalaw.org