ELIGIBILITY AND PROCESS
WHAT IS DIVERSION?
It is a process of disposing cases without trial particularly cases of children in conflict with the law.
The Constitution of Kenya, 2010 promotes alternative forms of dispute resolution such as reconciliation and traditional dispute resolution and empowers Director of Public Prosecutions to discontinue criminal proceedings at any stage before judgment is delivered.
The Constitution adopts general rules of international law and treaties ratified by Kenya as part of the law of Kenya. The international community recognizes diversion as a best practice in criminal justice system. Kenya is a signatory to various international and regional treaties that promote diversion.
The Office of the Director of Public Prosecutions Act 2013, promotes constitutionalism hence development of the Diversion Policy and Diversion Guidelines Explanatory Notes in order to provide interpretation and step by step guidance on the diversion process.
Key principles that guide the diversion process are;
- Acceptance of responsibility.
- Accountability to the victim.
- Restitution, rehabilitation and reintegration.
- Public interest, confidence, safety and well-being.
THE DIVERSION PROCESS
A public or private prosecutor decides whether a person is eligible for diversion or not.
Any interested party may request the prosecutor either orally or in writing to consider an offender for diversion.
Ideally, the Investigating Officer should flag a case eligible for diversion by using the diversion checklist. Thereafter, the Prosecutor reviews the Charge Sheet and whether the evidence on the file is likely to secure a conviction. If insufficient, the Prosecutor considers whether evidence can be acquired during trial and lastly whether it is in public interest to try the case. Accordingly, the Prosecutor can decide on diversion before or after the offender is charged.
An offender becomes eligible for diversion if;
- The evidence is likely to secure a conviction.
- It is in public interest to try the case.
- The offender had made a clear and reliable admission of committing the offence.
- Special circumstances exist such as the offender committed the offence due to a genuine mistake or misunderstanding.
Offenders are categorized as follows;
- Adult offenders accused of petty offences.
- Children accused of petty or felony offences.
- Vulnerable persons accused of petty or felony offences. Vulnerability includes;
- the physically challenged or abled differently
- persons with mental disorder or impairment
- persons in abusive situations
- elderly persons
- persons undergoing drug or alcohol addiction
- Felony cases which require application of the exceptional circumstances test which sets the criteria to be met as follows;
- the offender is accused of a felony which attracts a mandatory or minimum punishment
- the offender has a criminal record or is a repeat offender
- the offender underwent diversion before
Since the decision on diversion is susceptible to Judicial Review, the Prosecutor must consider prescribed mandatory and discretionary factors that fall into the following categories.
- Offender – focused criteria
The prosecutor holds a diversion interview so as to inform the offender of availability of diversion and available diversion options; obtain information on circumstances that led to commissioning of the offence and confirm offender’s acknowledgement of guilt.
- Offence-focused criteria
The Diversion Policy and Diversion Guidelines Explanatory Notes provides a list of mandatory and discretionary considerable factors.
- Views of an identifiable victim who may also be the complainant on whether or not the case should be diverted, if so, probable diversion conditions and the reasons thereof.
- Views of the investigating officer.
The Diversion Policy and Diversion Guidelines Explanatory Notes prescribes several diversion options which are available to all offenders on a case to case basis. Be as it may, a formal caution or oral or written apology options are not available for felony offences.
The ODPP and the offender or offender’s legal representative enter into a Diversion Agreement which states the alleged offence and conditions to be met. When the offender fulfills the conditions, the Prosecutor issues a Certificate to the offender in the prescribed form and ‘No Further Police Action’ letter to the Police.
The diversion timeframe depends on the imposed conditions which as a minimum requirement should be reasonable and completed within reasonable time.
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About The Author
Juliet Chao Kilelu
 Article 157 (6) (c); 159, 2(c), 3
 Article 2, (5) (6) United Nations Convention on the Rights of the Child (UNCRC); the United Nations Declaration of the Rights of a Child 1959; the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules); the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh guidelines); the United Nations Guidelines on the Role of the Prosecutor (the Havana guidelines); the African Charter on the Rights and Welfare of the Child; the Ouagadougou Plan of Action Adopted on Accelerating Prisons and Penal Reforms in Africa. S. 4 (i)  But not at the sentencing stage. Probation of Offenders Act CAP 64, s 4(1), 9; General Prosecution Guidelines, clause 30  For instance not punitive, exploitative, harmful or hazardous or jeopardize offender’s physical and mental health.