An Overview of Prosecutorial Powers in Kenya

An Overview of Prosecutorial Powers in Kenya

Henry K. Murigi (United States International University-Africa, Kenya)
Copyright: © 2022 |Pages: 23
DOI: 10.4018/978-1-7998-2856-3.ch014
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Individual liberty, which traces its roots to the renaissance, is the core of every democratic society. When the state powers of prosecution are invoked, the idea of individual liberty comes into sharp focus. The colonial era in Kenya saw the misuse of prosecution power to dominate and eliminate threats to the stability of the colonial masters. This practice and misuse of prosecutorial power were carried forward by successive governments demonstrating utter disregard for individual liberties. This chapter identifies this as a historical fault line to the independent prosecutorial powers. There was a great departure after the promulgation of the Constitution of Kenya in 2010 paving the way for prosecutorial independence. The structural independence of state powers of prosecution seems to complement the functional operations of the office of the Director of Public Prosecution. The chapter will consider whether this is an identifiable or implicit fault line with the potential to threaten individual liberty.
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Individual liberty which traces its roots in the renaissance is the core of every democratic society. One of the instances where individual liberty comes into focus is when there is an occurrence of criminal activity. The society on the one hand will insist and rightly so, on accountability for the criminal conduct and on the other hand the rights of the individual accused will react to the accusation. When the state powers of prosecution are invoked, the rights of the individual and their liberty comes into sharp focus. The international society has agreed on certain irreducible minimums when it comes to human rights and dignity including where criminal conduct is concerned. These include the right to a fair trial which is an inalienable right, presumption of innocence, right to challenge and adduce evidence, among others. When the State, which legitimately holds the monopoly of instruments of violence, seeks to deny an individual of their liberty, there is a need to ensure that it is absolutely necessary. This calls for proper checks and balance to ensure that there are no excesses and overlaps. The main aim of this chapter is to examine the historical outlay of prosecutions in Kenya with a view to offering proper context for the structural and accountability mechanism of prosecutorial powers under the 2010 Constitution. For the purpose of this chapter, the history of prosecution will be confined to the period preceding the colonialism era and briefly highlight significant events of the independent governments. There is need to engage in a study of how the African societies dealt with crime and criminal conduct and to examine how each society construed the concept of justice. To better understand the historical foundation of prosecutorial powers, this chapter considers the transition from the traditional societies to the colonial era and later legal transitions such as independence, multiparty democracy, and the constitutional era. These will be the sub themes for this chapter.

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