DPP seeks removal from abduction case, calls petition ‘fatally defective’
The application says the DPP was wrongly sued and improperly enjoined as a respondent hence his continued participation in the case is prejudicial to the interest of justice.
The Director of Public Prosecutions (DPP) Renson Ingonga has termed petitions filed in court to compel police and others to produce abducted activists dead or alive as "incurable and fatally defective".
Ingonga says he is wrongly placed in the petition, being asked to explain the whereabouts of the abducted men including those found dead, yet his office has no mandate to carry out investigations and asked to be struck out as a respondent in the matter.
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The DPP filed an application through his senior assistant Mark Barasa challenging his participation in the matter of Habeas Corpus filed by the Law Society of Kenya (LSK), demanding an explanation on the abductions.
He says it is instructive to note that in the factual matrix of the petition, none of the parties has alleged in any of their paragraphs or adduced any evidence that the DPP has custody of any of the (abductees) to justify the grant of sustenance of any orders of Habeas Corpus against the DPP.
"The (DPP) as an independent office does not undertake investigations or exercise powers of arrest and is neither established as a National Security Organ nor a member of the National Security Council as constituted under Article 239 and 240 of the constitution respectively," states the application.
"Pursuant to his powers under Article 157 (4) of the constitution, the DPP has already directed the National Police Service (NPS) and Inspector General (IG) of Police in addition to the Independent Policing Oversight Authority (IPOA) to undertake investigations and upon completion submit the inquiry files into the allegations of abductions."
The application says the DPP was wrongly sued and improperly enjoined as a respondent hence his continued participation in the case is prejudicial to the interest of justice.
Ingonga is sued alongside the NPS, National Intelligence Service (NIS), Directorate of Criminal Investigations (DCI), National Transport and Safety Authority (NTSA) Ministry of Interior, IG Douglas Kanja and Director DCI Mohamed Amin.
In the application currently before Justice Chacha Mwita, Ingonga maintains that it is in the public interests and the interests of the administration of justice for the court to strike him out of the matter.
The head of state prosecutions says that if his name is not struck off, his impartiality and independence shall be compromised and impaired because the matters being contested in the suit are the subject of investigations he directed and the parties in the suit are the subject of those investigations which he is expected to make an independent decision to charge.
He reminds the court of DPP's tripartite responsibility of – safeguarding public interests, protecting the rights of victims as required by Articles 50 and 25 of the constitution and enabled under the Victims Protection Act, and to adhere to the constitutional rights of both suspects and accused.
The DPP says his participation in the matter ropes him into a contest with individuals that may fall within the categories of victims, suspects, victim-complainants or witnesses.
"In his tripartite responsibility as a minister of justice, this shall potentially compromise the DPP's ability to remain or be seen to be neutral thereby potentially diminishing public confidence in the administration of criminal justice," the petition filed by Barasa reads in part.
The hearing of this application will be held on February 10, to determine if the DPP will be expunged or will be required to participate in the hearings before the actual hearings of the Habeas Corpus begin.
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