Office of the Director of Public Prosecutions Act

This Act may be cited as the Office of the Director of Public Prosecutions Act.

Section 2 defines terms used in the Act (for example "Director", "National Police Service", "offence", and related prosecutorial terms) and contains a transitional interpretation for "Cabinet Secretary".

The Act's object is to give effect to the provisions of Articles 157 and 158 and other relevant Articles of the Constitution.

Section 4. Guiding principles Section the diversity of the people of Kenya;

The Director may resign by giving one month's notice to the President.

Section 11: Vacancy — "Section dies;"

Deputy Directors must exercise their powers and functions under the superintendence, directions and control of the Director.

Lists the Office's composition (Director, Deputy Directors, Secretary of Prosecution Services, Prosecution Counsel, technical staff, and other staff) and grants the Office power to appoint, control and supervise its staff for purposes of promoting its objectives.

Section 14 requires the Office to ensure reasonable access to its services nationwide; places prosecutors under the Director's superintendence; allows the Director to designate county officers; sets duties for prosecutors including impartiality, non-discrimination, confidentiality (with an exception), victim consideration, and cooperation with police, courts and other agencies.

Members of the Office's staff and its officers, employees and agents are exempt from personal liability for acts done in good faith while executing the Office's functions, powers or duties.

Section 16 establishes an Advisory Board composed of named office-holders; the Director of Public Prosecutions is the chair and the Secretary of Prosecution Services is the Board secretary; members may attend meetings in person or via appointed representatives; conditions for loss of membership are listed.

Sets internal governance rules for the Board: staff recruitment/appointment, allowances approval, meeting frequency and intervals, chair duties, disclosure of conflicts and a trading prohibition for members, Director and staff.

When, after criminal proceedings, a person must pay an amount to the Government or property is forfeited by court order, the Office must take further proceedings or steps to recover the amount or enforce the forfeiture or order.

The Office must appoint as many prosecution counsel as are necessary to ensure proper and efficient prosecution services.

The Director may, by Gazette notice, delegate powers or functions of the office to a prosecution assistant; prosecution assistants must exercise delegated authority to the extent specified by the Director in the notice of appointment.

The Director and a prosecution counsel appointed by the Director are entitled to practice as legal practitioners when exercising Office powers or functions, as if they held an unrestricted practising certificate.

The Director may in writing delegate any power and assign any duty to a subordinate officer, subject to conditions; delegation does not stop the Director exercising the power and the Director may withdraw delegations or amend decisions.

Decide whether to prosecute or not to prosecute in relation to an offence.

The Director may take over a prosecution or appeal for the Act by giving written notice; if the Director takes over, the Director becomes the prosecutor, appellant or respondent.

The Director may discontinue a prosecution with the court's permission; may apply to the court for a stay pending that permission; and is not prevented from continuing proceedings in the name of the instituting person or authority.

The Inspector-General or any other investigative agency must disclose to the Director material facts and information from investigations that could assist prosecution or defence.

Public officers and State officers must cooperate with the Director by responding to inquiries, complying with lawful directions and furnishing requested information; contravention may lead to imprisonment up to one year, a fine up to three hundred thousand shillings, or both, and possible disciplinary procedures.

Any person may start a private prosecution; if they do they must notify the Director in writing within thirty days; the Director may undertake, takeover or discontinue private prosecutions.

The Director may appoint qualified persons to prosecute on the Director's behalf; those persons are called public prosecutors and must be responsible to and follow the Director's guidelines and instructions in prosecutions.

The Director may engage qualified private legal practitioners to assist with his mandate, and when doing so must comply with the relevant public procurement law and regulations.

Proceedings where the Director or the Office is a party.

Section 5 sets out the Director's powers to direct investigations, institute or take over criminal proceedings, discontinue prosecutions in certain circumstances, formulate prosecution policy, direct investigative agencies, and assign subordinate officers who must be complied with by agencies and the Inspector-General.

States that the consent of any person or authority is not required for the commencement of criminal proceedings.

The Director must submit an annual report to the President and Parliament after each financial year; the President, National Assembly or Senate may at any time require the Director to submit a report on a particular issue; the Speaker must lay the report before the National Assembly for debate within seven days after the Assembly first meets following receipt.

Sets out the selection and appointment process for the Director: a selection panel advertises and shortlists candidates; the President selects and forwards a nominee to the National Assembly for vetting; if approved the President appoints the nominee; if rejected the Speaker informs the President and requests a fresh nomination.

The Director can be removed from office under Article 158 of the Constitution.

The Director may issue written directives to officers for information relating to investigations or prosecutions; officers who receive such directives must comply and keep the Director informed.

The Director must comply with the Constitution's values and principles when appointing members of staff of the Office.

States a qualification for appointment as prosecution counsel: "an Advocate of the High Court of Kenya".

The Salaries and Remuneration Commission shall determine the remuneration, allowances and other terms and conditions of service of the Director.

The Director must determine terms of service for Office staff on the advice of the Salaries and Remuneration Commission; Director, Prosecution Counsel and other staff must not have their remuneration or retirement benefits varied to their disadvantage during their lifetime.

The Office may appoint professional, technical and administrative officers and support staff under this Act.

Allows secondment of public officers into and out of the Office, with terms agreed in consultation with the Public Service Commission or the receiving agency; seconded officers are treated as officers of the Office and subject to the Director's direction during secondment.

The Office must, within one year from the Act coming into effect, issue and maintain a code of conduct; breach of that code is treated as officer misconduct and punishable equally to breaching a provision of the Act.

Parliament must allocate adequate funds to the Office; the Office must not accept conditioned grants and must disclose grants annually; the Director is charged with accounting for State monies.

The Office must open and maintain bank accounts necessary for exercising its functions.

Defines "financial year" as the period beginning on the day the Act comes into effect and ending on the following thirtieth June; or

The Office must prepare, review and forward annual revenue and expenditure estimates to the National Assembly at least three months before each financial year; the Office must review estimates forwarded under subsections (1) and (2), may alter them, and must forward them to the National Assembly for approval.

The Office must cause to be kept proper books and records of account for its income, expenditure, assets and liabilities.

Section 45 establishes the Prosecutions Fund, lists its permitted uses (enhancing the Office's operational capacity; welfare of the Office personnel; any activity approved by the Office), identifies sources of money (allocations by the National Assembly; grants and donations; other sources as approved by the Director), and requires the Fund to be administered and managed in accordance with public finance law.

The Director must provide written reasons, on request, for withholding information withheld under subsection (1); withholding must be reasonable and justifiable, and subsection (1) lists grounds (prejudicial to investigation or prosecution, risk to life or other severe prejudice).

Recognises the official signature of a person who is or has been the Director or Deputy Director.

The Director may determine the device of the Office's common seal; the Director shall direct its custody and must order its use.

The Office must, with the approval of the Cabinet Secretary responsible for finance, establish a suitable social security scheme for the staff of the Office.

The Director may make regulations to carry out this Act and may, after consultation with the Inspector‑General and other investigative agencies, issue guidelines on cooperation in investigations; the regulations may cover listed procedural and prosecutorial matters.

Section 51 allows the Director to convene an annual National Prosecution Service Convention; the convention must meet to discuss strategic prosecution issues and must publish an annual public report.

The Director may constitute a team of inspectors and issue guidelines on inspection of prosecution operations within the Republic.

The Director must issue guidelines on filing periodic reports by prosecution counsel in charge of the Counties.

Members present at Office or committee meetings must declare any private interest where a staff member or spouse is interested, as soon as practicable after the meeting starts; failure is an offence with fines or imprisonment.

Persons must not disclose documents or information obtained in the course of their duties under this Act without the Director's written consent.

Section 56 creates several offences: (1)(a)-(c) prohibit false representation as staff, undue influence, and being an accomplice to evasion; (2)-(5) set offences by officers or persons with specified fines or imprisonment.

Section 57 preserves application of the Act to proceedings begun before commencement, deems certain acts and documents to be by the Office, requires Public Prosecutors to cease upon notice by the Director, protects prior authorities/consents, makes the Act supreme over inconsistent laws on criminal enforcement, and preserves continuity of service for an officer appointed Director for leave and pension purposes.

Upon the coming into effect of this Act be deemed to be a member of staff of the Office;