The Office of the Director of Public Prosecutions (Appointment of Public Prosecutors) Regulations

Legal Notice 212 of 2022

This is the latest version of this Legal Notice.
Citation
Legal Notice 212 of 2022
Primary work
Office of the Director of Public Prosecutions Act
Date
31 December 2022
Language
English
Type
Legal Notice
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LAWS OF KENYA

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT

THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS (APPOINTMENT OF PUBLIC PROSECUTORS) REGULATIONS

LEGAL NOTICE 212 OF 2022

  • Published in Kenya Gazette Vol. CXXIV—No. 244 on 18 November 2022
  • Commenced on 18 November 2022
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

1. Citation

These Regulations may be cited as the Office of the Director of Public Prosecutions (Appointment of Public Prosecutors) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires-“delegation of powers” means the process by which the Director delegates the exercise of the powers and performance of the functions conferred by Article 157(4) and (6) of the Constitution,“Director ” means the Director of Public Prosecutions appointed in accordance with Article 157(2) of the Constitution,“Government entity” includes a Ministry, Department, Agency, State organ and State corporation,"Institute” means the Prosecution Training Institute established by the Office of the Director of Public Prosecutions, and“private entity” means a company Registered under the Companies Act (Cap. (486), a partnership registered under the Limited Liability Partnerships Act (Cap. 30) or Partnerships Act (Cap. 29), a business registered under the Registration of Business Names Act (Cap. 499), or any similar entity.

3. Object of the Regulations

The object of these Regulations is to provide a procedure for identifying suitable persons to whom the Director may delegate the exercise of the powers and performance of the functions conferred on the Director by Article 157(4) and (6) of the Constitution.

Part II – DELEGATION OF PROSECUTORIAL POWERS TO PROSECUTION COUNSEL

4. Delegation of prosecutorial powers to Prosecution Counsel

(1)Subject to Article 157(9) of the Constitution and section 22 of the Act, the Director may delegate, by notice in the Gazette, to a Prosecution Counsel serving in the Office of the Director of Public Prosecutions the exercise of such powers or performance of such functions conferred on the Director by Article 157(4) and (6).
(2)The notice under subregulation (1) shall specify the name, rank and personal number of the of the Prosecution Counsel, and the category of cases, if any, that the Prosecution Counsel shall be responsible for prosecuting.
(3)The Director may vary the terms of a delegation under subregulation (1) in such manner as may be necessary in the circumstances.
(4)A person to whom the Director has made a delegation under subregulation (1) shall not further delegate the exercise of such powers or performance of such functions to any other person.
(5)A person to whom the Director has made a delegation under subregulation (1) shall be subject to any guidelines, limitations, conditions or instructions prescribed, imposed or given by the Director.

Part III – APPOINTMENT OF PUBLIC PROSECUTORS

5. Delegation of powers and functions

The provisions of Article 157 and section 22 of the Act shall apply where the Director delegates the exercise of the powers and performance of the functions conferred by Article 157(4) and (6) of the Constitution.

6. Appointment by name in the Gazette

The Director shall appoint, by name and by Notice in the Gazette, each person to whom the Director has delegated the exercise of the powers and performance of the functions conferred on the Director by Article 157(4) and (6) of the Constitution.

7. Head of Government entity may apply

(1)The head of a Government entity may apply to the Director in the Form set out in the Schedule for the Director to appoint a duly qualified subordinate officer serving in the Government entity to be appointed as a Public Prosecutor.
(2)An appointment under subregulation (1) shall be accompanied by—
(a)a statement of the relevant provision of law under which the Government entity intends to prosecute under,
(b)the name and academic and professional qualifications of the person on whose behalf the application is made,
(c)the current caseload of the Government entity,
(d)the nature, complexity and technicalities of the cases handled ordinarily by the Government entity, and
(e)such additional information as the Director may, in writing, require for the purposes of the application.

8. Qualifications of Public Prosecutors

A person is qualified to be appointed as a Public Prosecutor under these Regulations if that person—
(a)possesses the qualifications of a prosecution counsel prescribed in section 34(1) of the Act,
(b)has successfully completed a Public Prosecution Course lasting for at least one year offered by the Institute,
(c)is not engaged in private practice in any law firm or as in-house counsel for any private entity,
(d)does not hold any appointment as State Counsel,
(e)does not engage in any business that may interfere with the duties of a Public Prosecutor, and
(f)meets the requirements of Chapter Six of the Constitution.

9. Register of Public Prosecutors

The Director shall cause to be kept and maintained a register of Public Prosecutors which shall contain—
(a)the name and contact information of each Public Prosecutor appointed by the Director under these Regulations,
(b)the personal number assigned to the Public Prosecutor by Government entity in which the Public Prosecutor is ordinarily employed,
(c)the Government entity in which the Public Prosecutor is ordinarily employed,
(d)the nature of offences that the Public Prosecutor is authorised by the Director to prosecute,
(e)the date of the appointment, and
(f)the date of the revocation of appointment, if any, of the Public Prosecutor and the reasons thereof.

10. Revocation of Appointment

(1)The Director may revoke the appointment of a Public Prosecutor in the followmg circumstances—
(a)where the legislation by which the Director delegated the exercise of the powers and performance of the functions conferred on the Director has been repealed, amended or revoked, as the case may be,
(b)where the person appointed as a Public Prosecutor has retired, resigned or otherwise has been removed from the service of the Government entity in which that person was ordinarily employed,
(c)where the person appointed as a Public Prosecutor has been transferred or redeployed such that the person shall not require to be appointed as a Public Prosecutor,
(d)where the head of the Government entity requests, in writing, for the appointment to be revoked,
(e)where the Public Prosecutor breaches the Code of Conduct maintained under section 39(1) of the Act,
(f)where the Public Prosecutor violates a provision of the Constitution or any wntten law, or
(g)for any other justifiable reason as the Director may notify the Public Prosecutor in writing.
(2)The Director shall notify, in writing, the head of Government entity in which the Public Prosecutor is ordinarily employed of the revocation of appointment of the Public Prosecutor

Part IV – MISCELLANEOUS PROVISIONS

11. Inspectors

The Director shall appoint inspectors from among the Prosecution Counsel appointed under section 52 of the Act to perform the following functions—
(a)to monitor the performance, work and conduct of Public Prosecutors appointed under these Regulations,
(b)to review public prosecution operations and make recommendations thereon to the Director,
(c)to review and assess the performance standards applicable to Public Prosecutors and make recommendations thereon to the Director,
(d)to identify the causes, If any, of hindrances to the timely, logical and fair conclusion of public prosecutions and advise the Director on how to address the hindrances, and
(e)to perform such other functions as the Director may direct for the achievement of the objectives of these Regulations.

12. Fees

The Director may impose fees for the following—
(a)a fee to accompany an application under regulatlon 6(1),
(b)training at the Institute including Continuous Professional Development, and
(c)attendance at the Annual National Prosecution Service Convention.

13. Reports

(1)The head of each Government entity in which a Public Prosecutor has been appointed shall, at least once in every three months, submit a report to the Director regarding the prosecutions undertaken during that period.
(2)Despite subregulation (1), the Director may require the head of a Government entity in which a Public Prosecutor has been appointed to provide information on any matter relating to the prosecution of case by the Public Prosecutor in that entity.
(3)The head of a Government entity in which a Public Prosecutor has been appointed shall report in writing to the Director whenever the person appointed as a Public Prosecutor dies, retires, resigns, or is transferred or otherwise removed from office.

14. Conflict of Interest

(1)A Public Prosecutor shall not make any decision or participate in any matter where a conflict of interest exists or may exist including in any situation where the Public Prosecutor has or is likely to have a direct or indirect financial or personal interest, or be called as a witness, or have any family, social or other relationship that may improperly influence his or her conduct as a Public Prosecutor.
(2)A Public Prosecutor shall report to the Director—
(a)any instance of a conflict of interest, and
(b)any attempt by any person to improperly influence a decision by the Public Prosecutor.
(3)Despite the provisions of this regulation, the Director may, in writing, require the head of a Government entity in which a Public Prosecutor has been appointed to explain any prosecutorial matter in which the Director suspects that a conflict of interest exists.

15. Continuous professsional development

(1)Each Public Prosecutor shall, in each calendar year, attend at least two structured training sessions at the Institute upon the payment of prescribed fees.
(2)The Director may revoke the appointment of a Public Prosecutor if that Public Prosecutor fails to comply with the provisions of subregulation (1)

16. Confidentiality

(1)A Public Prosecutor shall not disclose to any person not authorised in that regard by the Director any information received in the exercise of prosecutorial powers relating to the prosecution of any offence.
(2)The Director may revoke the appointment of a Public Prosecutor who contravenes the provisions of subregulation (1).
(3)Each Public Prosecutor shall maintain the confidenhahty of information received in the exercise of prosecutonal powers relating to the prosecution of any offence including after the appointment as a Public Prosecutor ceases.

SCHEDULE [r. 7(1)]

APPLICATION FORM

THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION
APPLICATION FORM
 
(This form shall be submitted by the head of the Government Agency)
Details of the nominee
Name
DesignationOfficial email
TelEmployment NumberOther emails
Physical Address
Government Agency
Signature ______________________Date ______________________REQUIREMENTS
(i)Curriculum Vitae
(ii)Undergraduate LLB Certificate
(iii)Diploma Certificate from KSL
(iv)Clearances (EACC, LSK and NPS)
(v)Confirmation letter from Head of Government Agency
(vi)Forwarding letter by the head of the Government Agency (include Citation)
(vii)Application fee
For Oficial use only
S/NRequirementsRemarks
1Application form 
2Supporting documents 
   
Approved/Not ApprovedRemarksSignature (Registration Oficer) ______________________Date _________________________
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History of this document

31 December 2022 this version
18 November 2022
Commenced