Testing Alternatives

Private Prosecutions as a Useful Anti-Corruption Tool in Kenya

Abstract

Kenya’s legal framework affords the Director of Public Prosecutions (DPP) vast powers to decide when to prosecute. As described sharply in the 2010 Constitution, the DPP is not subject to any person or authority, nor doeshe/she require the consent of any authority to commence a criminal case.Whereas corruption has grown exponentially in the past two decades, there are only a handful of convictions. Perhaps, this demonstrates the DPP’s poor follow-through in prosecuting corruption-related offences, despite their more than adequate discretion in prosecutions. Analysing judicial decisions, the paper advocates private prosecutions as a useful check on the DPP’s discretion not to prosecute graft cases.

The paper is arranged along three arguments. First, corruption is rampant in Kenya and as corruption swells, the authority with the power to wrestle it through prosecution,which is the DPP – and the AG before it – has been slow to prosecute corruption cases historically. Secondly, the DPP enjoys near monopoly over the authority to prosecute to-date. Third, private prosecutions offer an avenue for the anti-corruption crusade by checking the DPP’s power, which has practical and legal limitations.