REMARKS BY MR. NOORDIN. M. HAJI, CBS, OGW DIRECTOR OF PUBLIC PROSECUTIONS ON THE PROSECUTION OF INSTIGATORS OF VIOLENCE DURING ELECTIONS AT THE KENYA MEDIA SECTOR WORKING GROUP STAKEHOLDERS’ MEETING IN MOMBASA ON 3RD TO 4TH JULY 2021

Ladies and gentlemen,

1. Good morning! And thank you for your invitation to be part of this forum.

2. I am pleased to join our fellow stakeholders this morning for this important meeting convened by the Media Sector Working Group to discuss paramount issues surrounding media sustainability and viability, as well as promoting an ethical and professional media. This meeting could not have come at a better time as the country moves towards the next electoral cycle.

3. As the Director of Public Prosecution every opportunity to meet with the media, presents a chance to affirm my deep commitment to the protection of every citizen’s civil liberties and to highlight the fact that a media operating in freedom is essential in ensuring these liberties.

4. The Freedom and independence of the media as guaranteed in Article 33 (2)d is critical to our democracy which is founded on the basis of accountability to the people of Kenya and a free media serves as a watchdog which can enhance the ideal of accountability. More specifically as Prosecutors, the media has been a great ally in playing this watchdog role and also as an avenue through which our prosecutorial mandate and operations has been highlighted to citizens.

5. I am grateful to the Kenya Editors Guild for your invitation to be a part of this Stakeholders’ forum to address the prosecution of instigators of violence during elections in accordance with our Constitutional mandate under Article 157 and our Statutory mandates under section 5 of the Office of the Director of Public Prosecutions Act, 2013, and section 21 of the Election Offences Act, 2016.

6. As we are all aware, elections in Kenya are high pressure, competitive and often emotive. While election offences are unique and often occurring within the election period, we must acknowledge that these offences could still be committed long before the electoral cycle begins.

7. It is therefore, important that we remain vigilant in order to detect any instances of election-related offences that may occur. This will ensure that the investigation and prosecution of such cases is handled effectively and in strict adherence to the rule of law.

Legal Framework

8. The prosecution of election offences is captured under various Statutes. However, of noteworthy mention are the Election Offences Act, 2016, Anti-Corruption and Economic Act 2003 and the National Cohesion and Integration Act, 2008.

9. The Election Offences Act, 2016 creates and defines several election offences such as:
• Bribery;
• Undue Influence;
• Use of force or violence during election period;
• Use of National security organs; among others;

10. Anti-Corruption and Economic Act 2003, provides for prevention, investigation and punishment of corruption, economic crime and related offences.

11. In addition, the National Cohesion and Integration Act, 2008 was enacted to encourage national cohesion and integration by outlawing discrimination on ethnic grounds, criminalizing hate speech and offences of ethnic and/or racial content.

Role of ODPP in the Prosecution of Election Offences

12. As the ODPP, we acknowledge our critical role in the prosecution of election-related offences in accordance with the principles of free, fair, transparent, and accountable elections. We further acknowledge that elections must be administered in an impartial, efficient, accurate and accountable manner that is in accordance with Articles 81, 86 and 87 of the Constitution of Kenya, and other relevant legislative instruments. (These principles include free, fair, transparent, accountable, verifiable, neutral, secure, accurate and auditable elections administered in an impartial, neutral, efficient, accurate and accountable manner).

13. Ideally the constitution also infers that we will also be required to facilitate early and prompt detection, investigation and prosecution of persons for election offences in accordance with the various Statutes.

14. In order for us to achieve this, we have set up the Election Division which is tasked with handling election-related matters. This Division has a dedicated team of prosecutors who specialize in election-related matters. We continually strive to enhance their expertise and capabilities to deal with election-related offences through training, scenario simulations and joint workshops with other stakeholders such as the National Police Service, the Independent Electoral and Boundaries Commission and the National Cohesion and Integration Commission.

15. We have also developed policy documents such as the Guidelines on the Decision to Charge 2019, and the recently launched Standard Operating Procedures on Investigation and Prosecution of Serious Human Rights Violations Committed by Police Officers, (we have also formed a working group that looks into the right to assemble) which will inform our decision-making process to prosecute offences and effectively coordinate the investigation and prosecution of human rights violations, respectively.

16. Over the past year, we developed and operationalized the Uadilifu Case Management System which has since been integrated with the Judiciary e-Filing System. The system has greatly improved access to justice by enhancing efficiency and speedy disposal of cases, including election related matters; and it will be in full deployment during the upcoming electoral cycle.

Challenges to Prosecution of Election Offences

17. Most of the legislations governing electoral offences have tended to focus on actions during elections especially focusing on politicians and the police, little has been done to address offences that occur way before elections and that have a bearing in delivering a free and fair electoral process.

18. In regard to malpractices committed by IEBC Agents, employees and most importantly the management and commissioners who in our view bear the greatest responsibility with regards to electoral Integrity very little is highlighted in the various legislations yet we expect that they will deliver.

19. Furthermore, the issue of corruption when it comes to procurement of the requisite materials, and accusation of equipment, nepotism in recruitment for elections is hardly ever addressed. It is therefore, our hope that mechanism to address such matters will be highlighted especially by the investigators. In addition, lack of integrity, being compromised to influence the results of elections, overlooking electoral requirements such as qualifications of individuals are areas that need to be addressed and we as the ODPP shall be strictly looking at as we make the decision to charge.

20. In our experience Prosecuting electoral offences have various challenges and l will highlight some like the;
(a) Politicization of cases.
(b) Intimidation and threats to witnesses.
(c) Evidence tampering.

21. We have picked crucial lessons from the previous electoral cycles and have put in place certain mitigation measures in partnership with other stakeholders to meet these challenges. ​
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22. To begin with we have worked hard to Entrench, Enhance and ​Expand our multi sectoral approach. I must reiterate the importance ​of collaboration and cooperation between the various stakeholders ​in election-related matters. Each of us is a collaborative link to the ​chain that will uphold electoral justice including yourselves as the ​Media.

23. And while we recognize the synergy between the ODPP, the IEBC ​and the National Police Service in election-related investigations ​and prosecution, there remains the urgent need to Expand and ​Enhance the multi-sectoral approach on election-related matters to ​bring together all relevant stakeholders together to also ensure that ​candidates seeking elected positions are in compliance with all the ​legal requirements that demand the highest level of leadership and ​integrity from them.

BABY PENDO
24. Following the post-election violence that occurred Kisumu in 2018 leading to Baby Samantha Pendo’s death and several individuals who were injured while others were sexually violated, the Director of Public Prosecutions filed inquest proceedings in court. This was concluded in 2019 with recommendations including further investigations. The Director of Public Prosecutions appointed a tripartite Team comprising of Office of the Director Public Prosecutions (ODPP) and Independent Policing Oversight Authority staff to undertake thorough prosecution-led investigations with the assistance of a development partners namely: OHCHR, KNCHR and IJM.

25. These partners not only provided technical support but also played a key role in allaying public apprehension and assisting in witness identification for purposes of recording statements. They also continue to provide psycho-social support to the victims and witnesses. The exercise is near finalization.

26. The Director of Public Prosecutions is considering charges to be filed against the perpetrators under the International Crimes Act, considering the nature and seriousness of the violations. The charges may include.: Murder, rape and other forms of sexual violence and; torture and inhumane acts.

27. The perpetrators will be charged in two categories namely:
a) superior responsibility which pertains to the officers who were in command under whose supervision the violations took place.
b) Direct responsibility relates to the officers who directly participated in the violations.

28. I take into account, that the Rome Statute was domesticated in Kenya and we now have the International Crimes Act No.16 of 2008. This will be applied alongside other statutes like penal code, the Sexual Offences Act and Prevention Against Torture Act among others.

Specialized Courts to Prosecute Election Offences
29. A crucial intervention based on our experiences is the need to set up specialized Courts to prosecute Election Offences. This will be necessary to promote and ensure the efficient determination of election-related criminal offences – and pursuant to section 23 of the Elections Act – I intend to request the Chief Justice to appoint special magistrates who will determine election-related offences.

Role of the Media

30. As I draw to a close, allow me to acknowledge and appreciate the very important role you as the media play in the fight against electoral offences. You are critical players in enhancing our democratic ideals as a nation. You provide a platform that serves as a vibrant marketplace of ideas and a vehicle for citizens to express themselves and gain exposure to a wide range of information and opinions and as such you will be a major determinant in the process and products of the electoral cycle.

31. I remain confident that you will help to enhance our electoral justice processes by covering all aspects of the elections and guaranteeing all incidents are reported without prejudice and in the overall interest of the public.

32. When the media practices ethical journalism that adheres to its code of conduct for journalists, acts as a counter to “alternative facts” or untruths especially in this era of social media where unverified information can travel far and wide with unintended consequences detrimental to a free and fair election, we perfect our democracy and further enhance the Constitutional ideals we hold as Kenyans.

33. With these few remarks, I wish to thank you all once again for your collective effort in ensuring that we shall have a peaceful, lawful electoral cycle. Allow me to extend an invitation in coming days which will allow us to engage with you in greater detail in explaining what we have put in place for the elections and also how the Office of the Director of Public Prosecutions is evolving in this era of our recently launched Service Charter.

Thank you and God bless you!