NAIROBI, Kenya – The Supreme Court has dismissed an appeal seeking to compel the Director of Public Prosecutions (DPP) to charge police officers involved in the fatal shooting of Pakistani journalist Arshad Sharif, even as it affirmed that his constitutional right to life was violated.
In a judgment delivered on Friday, the apex court held that while Sharif’s killing by police officers in October 2022 was unlawful and unjustified, the courts have no authority to direct the DPP on whether or when to institute criminal proceedings.
The bench, 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) of the Constitution 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.
Sharif was shot dead by police officers on October 23, 2022, in what the Inspector General of Police later admitted was a case of mistaken identity.
The killing sparked international outrage and renewed scrutiny of police use of lethal force in Kenya.
The Supreme Court upheld earlier findings by both the High Court and the Court of Appeal that the shooting violated Sharif’s right to life as protected under Article 26 of the Constitution, as well as international human rights instruments including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.
However, the judges declined to rule that Sharif had been subjected to torture or cruel, inhuman or degrading treatment, citing a lack of evidence that he endured pain or suffering prior to 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 apex court also upheld the Court of Appeal’s finding that the Independent Policing Oversight Authority (IPOA) substantially discharged its investigative mandate, though it faulted the agency for failing to keep the victim’s family informed on the status of investigations and recommendations forwarded to the DPP.
On compensation, the Supreme Court declined to enhance damages awarded by the trial court, saying the appellants had not shown that the lower court relied on irrelevant factors or that the award was manifestly low.
Consequently, the court dismissed the appeal in its entirety, ordered each party to bear its own costs, and directed the refund of the Sh6,000 deposited by the appellants as security.