Supreme Court dismisses bid to compel DPP to prosecute police over Arshad Sharif killing

The Supreme Court has dismissed an appeal seeking to compel the Director of Public Prosecutions (DPP) to prosecute police officers involved in the fatal shooting of Pakistani journalist Arshad Shariff who was mistakenly killed by police in October 2022, while affirming that his constitutional right to life was violated.

In a judgment delivered on Friday, the apex court held that although the deceased's killing amounted to an unjustified violation of the right to life under Article 26 of the Constitution, the courts cannot direct the DPP on whether or when to institute criminal proceedings.

The court, led by Deputy Chief Justice and Vice-President of the Supreme Court Philomena Mwilu, ruled that the DPP enjoys constitutional independence under Article 157(10) and cannot be compelled by any person or institution, including the Supreme Court, to prosecute.

"The constitutional insulation of the Director of Public Prosecutions against control or direction in the exercise of his powers is unequivocal," the judges stated.

The deceased was fatally shot by police officers on October 23, 2022. The Inspector General of Police later admitted that the shooting had occurred but attributed it to a case of mistaken identity.

The Supreme Court agreed with the High Court and the Court of Appeal that the killing constituted a violation of the deceased's right to life, protected under the Constitution, the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples' Rights.

However, the judges declined to find that the deceased had been subjected to torture, cruel, inhuman or degrading treatment, saying there was no evidence to show that he endured pain and suffering before his death.

"Even if it can be said that the fatal shooting subjected him to torture or cruel treatment, the appellants ought to have produced evidence to that effect, such as proof that death was not instantaneous," the court held.

The judges also upheld findings by the Court of Appeal that the Independent Policing Oversight Authority (IPOA) had substantially carried out its investigative mandate, although it faulted the authority for failing to provide the victim's family with status reports on the investigations and recommendations made to the DPP.

On compensation, the Supreme Court declined to enhance damages awarded by the trial court, saying the appellants had failed to demonstrate that the lower court considered irrelevant factors or that the award was inordinately low.

Consequently, the court dismissed the appeal in its entirety, directed each party to bear its own costs, and ordered the refund of the Ksh.6,000 deposited as security by the appellants.