DPP, Police row: A legal perspective

By Bob Kasango

While most of the public have been mostly interested in the sensational non-legal elements of the story, the deepening rift between the Directorate of Public Prosecutions (DPP) and the Police should be a matter of grave public concern. Whichever way it is resolved, it has far-reaching legal implications.

The dispute hinges on the prosecutorial powers of the DPP, the investigative role and powers of the Police and the latest being the role and powers of the Attorney General in criminal matters.

The gist of the dispute is that the police investigated the death of Nsenga and their investigations found no evidence of premeditation or malice aforethought. They dutifully forwarded the file to the DPP for advice. The DPP recommended that Ms. Uwera, the widow, be charged with the murder of her husband.

The police objected, saying Ms. Uwera shouldn’t be charged with murder but with manslaughter, a lesser offence. The DPP has stood his ground and the Police have petitioned the Attorney General seeking a review of the DPP’s decision, suggesting that the Attorney General’s decision and powers under the Constitution, override those of the DPP.

The DPP retorts that the Police are grossly wrong and he is not answerable to anybody in the execution of his duties, and not even the Attorney General has the power to alter his decision. Clearly, the battle lines are drawn.

At the outset, it is important to put the criminal law enforcement role of police and the DPP in proper perspective. Public policing bodies have a multi-faced role. Broadly speaking, they are responsible for peace-keeping, criminal law enforcement and a general public service function.

However, for the purposes of this article, I will concentrate on those aspects of the criminal investigation process and their relevance and nexus to the prosecutory and judicial functions which all play a contributory role to in the administration of criminal justice. The criminal investigative process is by far one important area of police work which is seen by many police and the public at large as the central role of the police in terms of “crime fighting and solving crimes.”

Broadly speaking, criminal investigation is a systematic search for and collection and analysis of information with the aim of identifying perpetrators of crime; bringing them before courts to answer charges, and the compilation of the evidence.

It involves crime and problem analysis, the interviewing of witnesses, victims and suspects, and intelligence and information-gathering analysis processes, preparation of the brief of evidence and court appearances. In order to carry out these functions, the investigator must possess an array of skills in the art of investigative techniques, and a practical knowledge of the applicable laws.

In today’s rapidly changing climate, public and government demands, the investigator must also possess insurmountable care, skill and consideration in all his/her decision-making process in terms of management and conduct of investigations, which must be nothing short of ethical and professional.

The investigator should be mindful of two important but competing requirements: The interest of the individual, who should be protected against unlawful or unjustified arrest, and the interest of the public which requires that for the maintenance of order and safety, there should be immediate interference with those who break the law.

The DPP’s role is to assist the Court to arrive at the truth and to do justice between the public and the accused in accordance to the law and the dictates of fairness.

The DPP is not entitled to act as if representing private interests in litigation. He represents the public and not any individual or sectional interest. He does not have a “client” in the conventional sense. He must act independently, yet in the public interest.

In carrying out that function, it behoves the DPP – neither to indict nor on trial to speak for conviction except upon credible evidence of guilt. The DPP is not supposed to do even a little wrong for the sake of expediency, or to pique any person or please any power.

The DPP cannot be either gullible or suspicious, intolerant or over pliant in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance. The DPP prosecutes. The police (and some other agencies) investigate. The DPP has no investigative function.

The DPP advises investigators in relation to the sufficiency of evidence to support nominated charges and the appropriateness of charges; but not in relation to operational issues, the conduct of investigations or the exercise of police or agency powers.

Just as investigation and the judicial function are separate functions, the situation between investigation and prosecution is similar. Although separate functions, of necessity synergy must exist for the two functions to operate effectively.  One of the most important and common roles of the prosecutor is to check police investigations against due process of law, while keeping the effectiveness of police investigation.

In order to meet the rule of law standards, promote acceptance of court decisions by the accused and strengthen public confidence in the police’s right to conduct searches and seizures in private premises, the investigation work of the police should be, at least in principle, critically monitored. The DPP’s authority in giving advice to police investigators can be viewed in this regard.

After undergoing a lengthy, laborious and complicated investigation process, police investigators generally tend to develop a feeling of exclusiveness and feel that the entire investigation domain is their responsibility. As a result, any sort of advice and instruction from outside is taken as ‘interference’ and unnecessary. Resistance is shown if they are told to bring more substantial evidence or to amend or improve the evidence collected.

But with their strong academic background in jurisprudence, prosecutors tend to develop a more legalistic approach in handling police files. Prosecutors will first examine the appropriateness of evidence and will then evaluate its fitness for the court proceedings. Pressure from colleagues in an investigating agency for prosecution may embarrass him in case his disposition appears to lead to acquittal. Similarly, investigators may desire their position to bear upon the prosecutor without taking into consideration the due process of the law or other relevant legal considerations, which will put pressure and strain on the prosecutor.

These mutually repellant psyches of the investigators and prosecutor tend to have adverse effects on the working relationship between the two as we are witnessing in the Nsenga case.

The timely completion of a prosecution process is by and large dependent upon an efficient and focused investigation.  For these very reasons, investigation and the prosecution functions should never clash.

Need for co-operation

Police tend to develop a proprietary interest in their cases, especially ones in which they have invested special efforts such as for example dangerous arrests, long stakeouts, or simply the nature of the particular case. They believe this entitles them to have some influence on the disposition of the case.

But they are in actual fact the least influential of all actors in the judicial system. There is no coherent and consultative system in place where police are duly informed of case outcomes in terms of alternative prosecutions. Beside personal interest, police are expected by victims and the general public to know this information. They serve as boundary spanners between the public and the Court system.

The investigator and the prosecutor should play a more active and communicative role up until the sentencing phase. By allowing the investigator to become part of the criminal justice process and to receive feedback on the progress and outcome of the case would provide the basis for any remedial and subsequent enhancement of evidence preparation and evaluating and improving the qualitative nature of evidence handling and investigative practices.

It is clear therefore that at all times in the investigation and prosecution of a case, the Police and DPP should operate hand-in-glove.

The Nsenga case is instructive to the extent that the DPP, who does not possess any witness and investigation material, insists on charging the suspect with murder and the police, who possess all the evidence and are in touch with the witnesses, insist on manslaughter. The DPP’s position, while it may make legal sense, is particularly precarious because the practicality of procuring a conviction depends so much on the co-operation of the police.

The DPP should never prosecute for the sake of prosecuting because if he did so, he would very quickly erode public confidence in that office and in our criminal justice system. The principal aim should always be to secure convictions with the full co-operation of the investigators.

To the extent that the DPP has stood his ground that he acts under the control or direction of nobody, he is statutorily correct and jurisprudentially sound but practically insensitive to the requirements of co-operation with the police to achieve the aims of any prosecution.

Curiously though, the Police are not resisting the prosecution of Ms. Uwera but rather prefer that she be charged with manslaughter and not murder. From this point of view, any lawyer would see why the police stance makes little legal sense.

Because manslaughter is what is known as a ‘minor and cognate offence’ to murder, which means that if a suspect is charged with murder but the evidence is insufficient to support a conviction on murder but sufficient to sustain that of manslaughter, then the court would find the accused person guilty of manslaughter and convict them accordingly. To that extent, the opposition of the police to charging Ms. Uwera with murder is also of no practical value and makes no jurisprudential sense.

The practice of most prosecutors around the world in general is to go for the most serious offence where the evidence, however weak, can sustain the charge, in the hope that the defense is weak but also in the knowledge that they will press for a conviction on the minor and cognate offence.

What the DPP has done in this particular case is therefore not unusual to attract such strong reaction from the Police. It would have been a different proposition if for instance the evidence on file supports theft and the DPP prefers a murder charge. That would be an unacceptable abuse of due process.

More legal hurdles

Article 120 (6) of the Constitution protects the DPP from the “direction or control of any person or authority.”

The powers of the DPP over criminal matters are absolute and can only be bridled by a court of law. The opinion of the DPP in criminal matters, are final and can only be altered by a court of law.

However, the Police also quote Article 119 (4) (a) of the Constitution, which describes the functions of the Attorney General to include, “to give legal advice and legal services to the Government on any subject.”

In their persuasion, “on any subject” includes in matters criminal. And they are correct to the extent that the Attorney General can in fact render advice on a criminal matter but the seminal point is whether such advice would override the opinion of the DPP. The answer to that question is in the negative.

The framers of our Constitution clearly intended to shield the DPP from any nature of interference in the execution of his/her duties under Article 120 and they could not in the same breath have intended to take away that shield under Article 119.

In matters criminal, the opinion of the DPP is final.  This dispute, therefore, is further a manifestation of the weak and sometimes absent state institutions and the structural alternative are the influential and stronger informal networks at play. Regardless of the outcome of the battle between the Police and DPP, the trial of Ms. Uwera is most likely to face other legal road blocks.

The suspect has been held in police custody for far longer than the period allowed by the constitution.  Whether in protective custody or not, the detention goes against the most basic constitutional requirement of a fair and speedy trial.  Any trial after such a long period of detention is unconstitutional as the rights of the accused have been so gravely abused that no fair trial is reasonably possible.

Lastly, the very public nature of the dispute between the DPP and the Police has armed the defense lawyer with lethal arsenal to attack the quality, reliability and credibility of the evidence since even the Police and prosecution cannot agree on the evidence. In effect, the case is almost dead on arrival.