The Role
The Director of Public Prosecutions (DPP) is the chief prosecutor in Kenya. The DPP has authority to prosecute all criminal cases, including corruption cases.
This means that even if the EACC investigates and documents corruption, the DPP can choose not to prosecute. This gives the DPP enormous discretion over which corruption cases proceed to trial.
Political Influence
The DPP is appointed by the president (though with involvement of a commission). An appointed DPP may be reluctant to prosecute corruption cases implicating the president or other powerful government figures.
History of DPP appointments suggests that presidents have sometimes appointed DPPs willing to protect political allies.
Selective Prosecution
Kenya's history of corruption prosecution suggests selective targeting:
- Lower-level corruption: DPP has prosecuted lower-level officials, especially when politically convenient
- High-level corruption: Prosecution of senior officials is rare, even when evidence exists
- Political timing: Prosecution decisions may be timed for political advantage
For example, corruption cases against opposition figures might be pursued more aggressively than cases against ruling coalition figures.
The Resource Challenge
The DPP's office is responsible for prosecuting all crimes across the entire country. Corruption prosecution is only one part of this massive workload. The result is that corruption cases may receive limited prosecutorial attention.
A business executive stealing millions of shillings may wait years for prosecution because the DPP's office is handling thousands of other cases (theft, assault, drug trafficking, etc.).
Institutional Weakness
The DPP's office has been characterized by:
- Limited resources: Staff and budget inadequate for national prosecution responsibility
- Poor case management: Weak systems for tracking cases and ensuring timely prosecution
- Lack of specialization: Few prosecutors with specialized expertise in corruption cases
These weaknesses mean that even when corruption cases are referred for prosecution, they may languish in the system for years.
The Political Economy
The DPP's role as gatekeeper of prosecution creates perverse incentives. Those facing corruption charges have incentive to influence the DPP through:
- Political connections: Using allies to pressure the DPP
- Bribery: Offering payment to defer or dismiss charges
- Timing: Waiting for a DPP change or political shift
Given these incentives, and the DPP's political vulnerability, corruption suspects have multiple strategies to evade prosecution.
Cases That Succeeded and Those That Failed
Some corruption cases have proceeded to prosecution and conviction:
- Mid-level corruption involving lower officials
- Corruption in smaller amounts (millions rather than billions)
Cases that have been delayed or abandoned:
- High-level corruption involving senior officials
- Goldenberg (minimal prosecutions despite billions stolen)
- Anglo Leasing (minimal prosecutions despite billions stolen)
- Eurobond (no prosecution despite allegations of billions stolen)
The pattern suggests that prosecution depends partly on the political vulnerability of the accused.
Sources
- Office of the Director of Public Prosecutions. "Annual Reports." 2015-2025. https://www.dpp.go.ke
- Auditor General Kenya. "Report on Prosecution of Corruption Cases." 2018. https://www.oag.go.ke
- Muigai, Githu. "The DPP as Gatekeeper: Prosecutorial Discretion and Corruption in Kenya." African Journal of Legal Studies, 2016. https://ajls.org
- Transparency International Kenya. "Prosecution Patterns in Corruption Cases." 2017. https://www.ti-kenya.org
- Daily Nation. "DPP: Prosecutor or Protector?" News archives, 2015-2025. https://www.nation.co.ke