Stephen Mburu
6 July 2008
Nairobi — When he was appointed Director of Public Prosecutions over three years ago, Mr Keriako Tobiko pledged to institute major reforms to ensure professionalism in the department.
When he took over the office whose primary purpose is to ensure professional prosecution of cases, charges of unprofessionalism were being levelled against the department. Prime suspects in serious crimes would walk free, courtesy of bungled prosecutions. And innocent people would be wrongly convicted. This was the mess Mr Tobiko promised to clean up.
A former commissioner with the defunct Constitution of Kenya Review Commission, Mr Tobiko pledged to ensure that the "intensive and extensive" reforms which his predecessor, Mr Philip Murgor, had initiated under the Governance, Justice, Law and Order Sector (GJLOS) programme, would be implemented fully.
Top on the list of Mr Tobiko's four-year vision was to fight for an attractive pay package for state counsel and to hire 150 lawyers a year. When he arrived, there were only 53 lawyers in the department.
Today Mr Tobiko is a disturbed man. The reforms he had hoped for have not been happening as fast as he would have liked. In fact, some items, like the review of prosecutors' pay, have not moved at all.
But he is determined to soldier on, hoping that the state law office will provide the necessary funds to speed up the reform process in his office.
"There is a serious problem. We are losing prosecutors like mad, some to private practice and others to NGOs. To attract and retain good lawyers we must improve their terms of service. If we don't address this matter, we will never fill the vacancies," Mr Tobiko told the Sunday Nation.
"When I came in, there were 53 professional prosecutors. Though we embarked on hiring additional advocates, between 2005 and 2007 we lost 15. We are currently back to 53 and are obviously overwhelmed," he said at his office in the National Social Security Fund building.
"We train them, they become marketable and they leave. One of them just disappeared. You cannot blame them. State counsel are poorly paid. They do not have benefits to talk about. Most cruel of all, they have no medical cover," he said.
In a May 30 report to Attorney-General Amos Wako which Sunday Nation obtained independently, Mr Tobiko lamented that the department suffered a shortage of professional prosecutors.
Initial step
"The approved establishment of the office is currently 93 state counsel. It should be noted that only 57 officers are in post with a shortfall of over 40 per cent. As an initial step, all the vacant positions, for both professional and support staff, should be filled to ensure that there is an adequate number of officers to handle reform activities," he said.
But he is optimistic about greater efficiency once the department is fully computerised. "Cabling was done more than a year ago, but the system is not up. One excuse after another is always preferred. We are unable to communicate expeditiously with other agencies nationally and internationally. We are not able to undertake internet research or access the daily cause list and the Kenya Law reports. It is imperative that this issue be addressed as a matter of urgency," he wrote to the attorney-general.
Police cases
On backing up police cases against suspected criminals, Mr Tobiko told Sunday Nation: "The ideal situation is for (government) lawyers to accompany police prosecutors at scenes of crime. That is the way to go. But we don't have a sufficient number of (professional) prosecutors. We are overwhelmed. We don't have sufficient time to prepare and also meet investigators. To prosecute successfully is a joint effort."
During the Kanu days, prosecutors were regarded as government advocates whose main objective was to secure convictions. But Mr Tobiko says this should not be the case.
"Our role is not to win a conviction. We are ministers of justice. Our role is to ensure truth and justice for all. To ensure the guilty are punished and the innocent do not get wrongly convicted," he said.
He said the Cabinet reportedly approved a proposal to address the terms and conditions of service for state counsel in 2005, "but we have not seen the results. It has taken too long. Nothing meaningful is happening".
He said the exodus of state prosecutors has made donors like USAid reluctant to fund the training of additional state counsel.
His achievements contained in the report on the Status of the USAid Support to the Department of Public Prosecutions under the Governance, Justice, Law and Order Sector Reform Programme to Mr Wako include development of various documents named "key prosecutorial instruments" that aim to enhance "consistency and public prosecution standards."
The documents, he says, aim to ensure prosecutors exercise their discretion "in an appropriate and principled manner, thereby contributing to the safety of the citizens".
However, major challenges that "have greatly hampered the work of the department" include slow implementation of reform programmes. Mr Tobiko has suggested to Mr Wako that the implementation of USAid-funded programmes should be handled by the prosecutor's office. Three years ago, the Solicitor General established a committee to implement the programmes.
"This will reduce the inordinate delays, unnecessary bureaucracy and eliminate deliberate attempts to frustrate the reform process," he said.
He cites a USAid book donation of Sh800,000 whose procurement has taken more than six months "without any success. It is apparent that this procurement has been frustrated by bureaucracy."
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