The Decision-Making Process for Diversion in Kenya

The decision to divert a case from traditional prosecution to alternative methods is a crucial aspect of Kenya’s evolving justice system.

This article explores the individuals vested with the authority to make such decisions, the rationale behind entrusting this responsibility to the Director of Public Prosecutions (DPP), and the guiding principles that underpin the decision-making process.

Decision-Makers: Public Prosecutors and Delegated Authorities

The responsibility of determining whether a case is eligible for diversion falls upon Public Prosecutors and individuals exercising delegated authority. This decentralized approach ensures that professionals with a nuanced understanding of legal nuances and contextual factors are actively engaged in the decision-making process.

The Role of the Director of Public Prosecutions (DPP)

Exercise of State Powers:

The DPP holds a pivotal role in Kenya’s justice system, exercising state powers of prosecution. This authority is crucial in shaping the direction of criminal cases within the country.

Empowerment by the ODPP Act:

The Office of the Director of Public Prosecutions (ODPP) Act empowers Public Prosecutors, as well as those exercising delegated powers on behalf of the DPP, to conduct criminal proceedings for the government. This legal framework provides a foundation for the exercise of prosecutorial discretion.

Formulation and Review of Public Prosecution Policy:

The DPP is entrusted with the formulation and review of the Public Prosecution Policy. This policy framework guides the decision-making process and sets the tone for the approach to be taken in criminal cases.

Independence of Prosecutorial Powers:

The DPP’s prosecutorial powers are to be exercised independently, reflecting a closely guarded constitutional principle. This independence ensures that decisions made are impartial, fair, and aligned with the pursuit of justice.

Role as a ‘Minister of Justice’:

Public Prosecutors are viewed as ‘Ministers of Justice,’ emphasizing their primary duty to assist the court in arriving at a just decision. This duty goes beyond securing convictions and encompasses a commitment to fairness and equity in the justice system.

Guidelines and Instructions Compliance:

Public Prosecutors are bound by guidelines and instructions issued by the DPP for the conduct of criminal cases. This includes a specific requirement to consider alternatives to criminal prosecution, such as diversion. The inclusion of diversion in these guidelines reflects a broader commitment to a justice system that goes beyond punitive measures.


In Kenya, the decision to divert a case involves a complex interplay of legal principles, prosecutorial powers, and a commitment to justice. Entrusting Public Prosecutors, guided by the Director of Public Prosecutions, with the authority to make these decisions ensures a nuanced and contextually aware approach to the evolving landscape of criminal justice.

As Kenya continues to navigate the implementation of diversion policies, the decisions made by these key stakeholders will shape a justice system that is fair, rehabilitative, and responsive to the diverse needs of the community.