Tuesday, July 21, 2015

Prosecutorial independence in Kenya

For readers who have been thinking about what a statute might look like that gave the disposition power to someone other than a military commander, consider this provision of the Kenya Defence Forces Act, 2012:
213.(1) There shall be a Director of Military Prosecutions in the Ministry responsible for Defence who shall be appointed by the Defence Council. 
(2) A person shall not be appointed as the Director of Military Prosecutions unless the person is—
(a) an officer of at least the rank of Brigadier; and
(b) an advocate of the High Court of Kenya of not less than ten years standing. 
(3) A person appointed as the Director of Military Prosecutions under this section shall––
(a) have power to direct military police to investigate any information or allegation of criminal conduct, and a military police shall comply with any such direction;
(b) exercise powers of prosecution under this Act and shall undertake prosecutions at a court martial against any person subject to this Act in respect of any alleged offence under Part VI;
(c) have power with the permission of the Judge Advocate to discontinue any proceedings before a court martial at any stage before summing up by Judge Advocate. 
(4) The Director of Military Prosecutions shall not discontinue proceedings before a court[] martial unless with the permission of the Judge Advocate.

(5) Except as provided for in this Act, the Director of Military Prosecutions shall not require the consent of any person or authority for prosecutions and, in the exercise of the powers or functions under subsection (3) of this section shall not be under the direction or control of any person or authority. 
(6) The office of the Director of Military Prosecutions shall be a separate office from that of the legal department in the Defence Forces or Ministry.

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