By Blamuel Njururi, Kenya Confidential Editor in Chief, Nairobi – October 7, 2017
It would be a sad day for the administration of justice if those charged with the responsibility of interpreting the law and upholding the rule of law are to be perceived as the ones breaking the law – LSK Vice President
The political inferno lit by Kenya’s Chief Justice and President of the Supreme Court, David Maraga on September 1, when he annulled President Uhuru Kenyatta election, is burning out of control and efforts by National Super Alliance (NASA) fire fighters to quell it with diversionary sideshows are of no avail
The beleaguered Independent Elections and Boundaries Commission (IEBC) Chief Executive Officer Ezra Chiloba has made it public that Maraga’s majority Bench of three judges based its decision on forged evidence. Chiloba’s disclosure was alluded to by one of one minority judges Justice Njoki Ndung’u in her lengthy judgment when she disclosed documents said in NASA affidavits not to have serial numbers and signatures actually had them as per those in Supreme Court’s Custody.The other dissenting judge Justice Jackton Ojuang expressed the view that Maraga’s judgment had no merit.
It would have been a simple matter of jurisprudence prudence for the Supreme Court to ascertain whether the evidence in the affidavits was truthful or false. It is a common occurrence for witnesses in Kenyan courts, including police officers to tell lies under oath since the notorious British colonial trial of Jomo Kenyatta at Kapenguria in 1952.
It is noteworthy that in between the petition hearing and the writing of the final judgment spanning over 21 days Maraga had the luxury of holding meetings with the plaintiff Raila Amolo Odinga and his NASA principals instead of concentrating on checking the accuracy of evidence before his court.
As Kenyans and the world at large await the full details of unfolding Supreme Court Scandal of monstrous proportions, the Law Society has jumped into the fray of what is increasingly becoming a Luo driven conspiracy. A team of Luo lawyers led by James Orengo gave well-drilled eloquent presentations before the Supreme Court to collaborate the forged documents affidavits and how results transmission was flawed by the IEBC.
They had no support for an original claim that IEBC servers had been hacked to interfere with result transmission but Supreme Court allowed read-only tour of the servers. NASA insisted of full access to the servers and Deputy Chief Justice Lady Philomeno Mwilu claimed an order to that effect was disobeyed by IEBC. Lady Justice Njoki said no such order was issued.
The prospect of great dishonour is staring at the Supreme Court over the integrity of the evidence in its custody and the conflicting accusations of impropriety by judicial officers in charge. A private citizen has thrown a spanner into the Supreme Court works on the petition and asked the Ethics and Anti Corruption Commission (EACC) to investigate the manner by which the Supreme Court conducted the petition.
A letter the Ethics & Anti-Corruption Commission calls for the submission of documents that relate to the proceedings of the Supreme Court of Kenya Presidential Petition No. 1 of 2017, and for the Registrar of the Supreme Court, the Hon. Ms. Esther Nyaiyaki, to record a statement in furtherance of an investigation that it has launched following receipt of a letter of complaint from M/s Kilukumi & Company, acting for their client, one Rashid Mohammed.
The Law Society of Kenya president and Raila tribesman Isaac Okero has expressed concern over the “intervention together with all acts undertaken pursuant thereto given the very serious constitutional ramifications thereof.” His concerns and views that EACC should not investigate Supreme Court however, have been dismissed by his deputy Faith Waigwa as personal and not represent those of the Law Society Council members.
Okero is not known for being a Raila fanatic but would appear like many Luo professionals, including University professors, when it comes to Baba’s presidential ambitions, they would not hesitate to join street demonstrators. To them it would appear the Luo Nation blood is thicker than that of Kenya’s as a Nation.
They truly are politically bewitched in their resolve that Raila is their anointed tribal Messiah. No other politician in Kenya enjoys such unquestionable loyalty. Raila should pay them back by providing level headed statesmanship.
The radical politics of street demonstrations are intended to camouflage the heinous criminal conspiracy that worked with stunning precision. Chiloba is being ostracized to tarnish his reputation in Communist Russia style because of what he knows. Slowly but surely the NASA principals will be unmasked for what they are in a manner that may ruin any future political adventures.
Law Society of Kenya President’s Letter
Our Ref: LSK/IENO/EACC/SCOK
Your Ref: TBA
Date: 3rd October, 2017
Ethics & Anti-Corruption Commission
Dear Archbishop (Rtd) Eliud Wabukala,
REGISTRAR OF THE SUPREME COURT
Our attention has been drawn to a letter from the Ethics & Anti-Corruption Commission.
dated the 25th September, 2017 addressed to the Chief Registrar of the Judiciary. By said letter the Ethics & Anti-Corruption Commission calls for the submission of documents that relate to the proceedings of the Supreme Court of Kenya Presidential Petition No. 1 of 2017, and for the Registrar of the Supreme Court, the Hon. Ms. Esther Nyaiyaki, to record a statement in furtherance of an investigation that it has launched following receipt of a letter of complaint from M/s Kilukumi & Company, acting for their client, one Rashid Mohammed. The Law Society of Kenya is concerned by the intervention together with all acts undertaken pursuant thereto given the very serious constitutional ramifications thereof.
The Ethics & Anti-Corruption Commission (“the EACC”) is an independent commission established by Section 3(1) of the Ethics & Anti-Corruption Commission Act pursuant to Article 79 of the Constitution. It is possessed of the statutory mandate and authority set out in the Act1 which it exercises in addition to the general powers of commissions and independent officers donated by Chapter 15 of the Constitution. The application of Chapter 15 to the EACC is stated to be except to the extent the Constitution provides;
1 Sections 11 and 13 of the Ethics and Anti-Corruption Commission Act. It is noteworthy that this chapter otherwise imposes upon the EACC a constitutional obligation to promote constitutionalism, reinforcing the supremacy of the Constitution binding upon all state organs including the EACC, and the obligation upon every person to respect, uphold and defend the Constitution.
The Judicial Service Commission (“the JSC”) is an independent commission established by Article 171 of the Constitution under Part 4 of Chapter 10 of the Constitution and, as part of the legal system of this country, is domiciled within the Judiciary arm of government.
It has a constitutional mandate to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice. It functions therefore to anchor the constitutional independence of the judiciary and has within its specific constitutional functions the appointment, receipt of complaints against, investigation and removal from office or otherwise the disciplining of registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament.
Although the JSC has the power as aforesaid to discipline judicial officers, in regard to their role as officers of any superior court this power can only relate to the administrative functions of said officers in such capacity. Acts or omissions by such officers occuring within proceedings before a superior court are subject only to action taken by the court seized of said proceedings. Any such acts or omissions fall within the purview of the exercise of judicial authority which ‘shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority’
The EACC has therefore no authority whatsoever to intervene and purport to conduct an enquiry or investigation replicating functions that under the Constitution are expressly anchored in the judiciary and ancillary organs of the judiciary including the JSC. Any such attempt would amount to an attack on the independence of the judiciary and constitute a blatant violation of the Constitution. Furthermore the Hon. Ms. E. Nyaiyaki was acting, as Registrar of the Supreme Court of Kenya, in execution of an interim order of that court. It is only the Supreme Court of Kenya that has the judicial and constitutional authority to investigate any complaint as to whether or not there has been compliance with its orders.
2 Article 248(1) of the Constitution
3 Article 249(1)(c) of the Constitution
4 Article 2(1) of the Constitution
5 Article 3(1) of the Constitution
6 Article 160 of the Constitution
7 Article 172(1)(c) of the Constitution
8 Article 160(1) of the Constitution
Finally it would be remiss of me not state that as the judiciary in the performance of its functions under the Constitution exercises delegated sovereign authority of the people of Kenya it would be an affront to and violation of this sovereign authority for the EACC to proceed with the proposed enquiry and investigation.
ISAAC E. N. OKERO
PRESIDENT, LAW SOCIETY OF KENYA
cc. The Secretary, Judicial Service Commission, The Chief Registrar of the Judiciary, Kilukumi & Company, Advocates, Director of Public Prosecutions, The Inspector General of Police. The Director of Criminal Investigations
Law Society of Kenya Vice President Letter
The Chairman Ethics and Anti–Corruption
Milimani Road Nairobi
Dear Archbishop (Rtd) Ellud Wabukala.
LETTER FROM LSK PRESIDENT DATED 3RD OCTOBER 2017
I write to you in my capacity as the Vice-President of the Law Society of Kenya my attention having been drawn to a letter dated 3rd October 2017 addressed to you by Mr. Isaac Okero, the President of the Law Society of Kenya (LSK) which has received wide coverage in the media.
In the said letter Mr. Okero asserts that the EACC has no authority whatsoever to conduct or undertake investigations in respect of allegations made against the Registrar of the Supreme Court. Ms. Esther Nyaiyaki regarding a scrutiny exercise undertaken in the course of the recently concluded Presidential Election Petition.
Mr. Okero predicates his assertion on the grounds that such investigations are within the exclusive jurisdiction of the Judicial Service Commission and that the commencement of investigations by the EACC is an affront on the independence of the Judiciary.
I should point out that it is unusual for the LSK leadership to take contradictory views on a matter but I am compelled to do so in this Instance for the following reasons:
i) Mr. Okero’s letter is not common ground among LSK Council Members who were not consulted before the letter was written. sent to you and shared for dissemination by the media.
The LSK is not only a professional body that represents advocates in this country but also a statutory body established under the provisions of The Law Society of Kenya. 2014 with the objects. set out at Section 4 of the Act. of among other objects. protecting the public In matters ancillary to the law and assisting the Government and the Courts in matters relating to legislation and the administration of justice.
It is thus of singular importance that statements emanating from the LSK leadership on matters of law and Issues of critical public interest and importance be factual and the culmination of deliberations by Council members and even the general membership in the spirit of stakeholder participation that is now central to all statutory bodies in our current constitutional dispensation.
In discharging this statutory mandate and as the LSK draws its membership from lawyers of all shades of political persuasion. it is expected that the society will be impartial. objective. true to the law and shall not take partisan or sectarian sides especially in political matters. Unfortunately. this has not been the case as this issue has not been deliberated by the LSK Council and a position arrived at.
It’s thus necessary that I set out the true state of the law regarding the matters of law contained in Mr. Okero’s letter. The facts are as follows:
i) Whilst the JSC has supervisory jurisdiction in employment and/or disciplinary matters concerning its employees. law enforcement agencies such as the EACC. the Kenya Police Service. Assets Recovery Agency. Office of the Director Public Prosecution and the Anti-Money Laundering Advisory Board retain a constitutional and statutory obligation to investigate and prosecute matters or allegations of a criminal nature arising from complaints made against Judicial staff.
ii) Judicial staff, like all other public servants, are expected to observe the provisions of Article 79 of the Constitution of Kenya which states that: “Authority assigned to a State offlcer - (a) Is a public trust to be exercised In a manner that–
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people:
(iii) brings honour to the nation and dignity to the office: and
(iv) promotes public confidence in the integrity of the office: and
(b) Vests In the State officer the responsibility to serve the people rather than the power to rule them.”
iii) There is more than ample precedence of judicial staff being investigated and even charged in court over criminal matters including the following:
a) At least two Judges have been charged and subsequently acquitted whilst in office in the Nairobi Chief Magistrate Criminal Case No. 1655 of 2009 and in Nairobi Chief Magistrate Anti–corruption Court case number 36 of 2009.
b) A former Chief Registrar of the Judiciary and 5 other senior judicial staff members have been charged and their matters are pending in court in Nairobi Anti–Corruption Case Numbers 15 and 25 of 2015.
c) Several Magistrates have been investigated and charged in court.
iv} The then LSK leadership Issued statements supporting investigations in some of the above cases culminating in charging of the judicial officers. It would be discriminatory for the society to now single out one judicial officer for preferential treatment without any basis in fact or law.
v) Any doubts on this aspects of the law were recently put to rest in the case of Abdulkadlr Athman Salim EIKindy v Director of Public Prosecutions & another [2017) eKLR where Honourable Justice Mativo stated as follows:
“36. Clearly. Judges – like any other person – should be punished for any crimes they commit be they general crimes, for example causing a car accident. In a state of drunkenness or specific crimes related to the judicial function, such as taking bribes for handing down favourable Judgments or interfering with the administration of justice for which alone they swore to uphold. Judicial officers are bound by the constitution and the laws of the land and must live and uphold the spirit of the law.
Like Ceaser’s wife, they must be beyond reproach. It would be a sad day for the administration of justice if those charged with the responsibility of interpreting the law and upholding the rule of law are to be perceived as the ones breaking the law. The public will certainly lose confidence In the entire system of the administration of Justice and the consequences cannot be Imagined.
37. The Justification for Immunity for Judicial officers–where it exists – cannot be to protect the Judicial officer from criminal prosecution, but only from false accusations that are levelled against a judicial officer in order to exert pressure on him or her. It is my view that a contrary Interpretation will have the inescapable effect of conferring an extra–constitutional Immunity on Judicial officers.
38. Thus, where an impropriety has been committed of the nature of criminal conduct which may include violations of law, or breach of court rules or abuse of office or interfering with the flow of Justice then such immunity cannot stand.”
Lawyer Kilukumi Letter
Your Ref: (EACC.6/25/1 VOL.VIII (173)) Our Ref: KK/RM/cr/017/2017
Archbishop (Rtd.) Eliud Wabukala,
The Ethics & Anti-Corruption Commission
Integrity Centre, Milimani/Valley Road Junction
P.O. Box 61130 – 00200, Nairobi
Dear Archbishop Wabukala
RE: REGISTRAR OF THE SUPREME COURT
Further to our letter of 22nd September, 2017, we received a letter from the President of the Law Society of Kenya dated 3rd October 2017, addressed to you and copied to amongst others, the Chief Registrar of the Judiciary, the Director of Public Prosecutions and the Inspector General of Police.
Our client Mr. Rashid Mohammed has instructed us to draw your attention to the following:-
(1) Under the Constitution of Kenya, 2010 and the governing criminal and penal statutes, no one is immunized from the criminal process, including criminal investigations. The judiciary and the Judicial Service Commission are not vested with any investigative power regarding criminal activities.
(2) There are no constitutional or statutory provisions for the Supreme Court to issue an order authorizing, sanctioning and or approving criminal investigations under any circumstances.
(3) It is not optional for suspects and potential witnesses to cooperate with criminal investigators. They are compelled by the majesty of the law to fully cooperate at the pain of being charged with obstructing criminal investigations.
(4) Judicial independence is not synonymous with impunity. Judicial Service Commission investigates misconduct on the part of Judges and Judicial Officers. It has no capacity to investigate crime, a preserve of the Director of Criminal Investigations and the Ethics & Anti-Corruption Commission.
(5) The crime reported for investigation relates to forgery and falsification of Forms 34As and 34Bs in the report of the Registrar and on which the majority judgment appears to have been largely based. It is not difficult to sufficiently appreciate the seriousness of the implications of forging documents which led to nullification of Presidential Elections.
(6) It is equally difficult to understand the obfuscation by the Supreme Court on such a grave matter. Our client would have expected the Supreme Court to be the one in the forefront facilitating investigations to establish who forged these documents.
(7) In lodging the complaint, our client did not point fingers at any suspect, the Registrar included; it is the investigations which will establish who the suspects are.
Our client expects and requests that Ethics & Anti-Corruption Commission and the Director of Criminal Investigations fully investigate this matter and that those found culpable promptly prosecuted.
KIOKO KILUKUMI KILUKUMI & CO. ADVOCATES
1.The President of Law Society of Kenya Lavington, Opposite Valley Arcade, Gitanga Road P.O. Box 72219-00200 Nairobi (REF: LSK/IENO/EACC/SCOK)
2.The Secretary The Judicial Service Commission Mayfair Centre Ralph Bunche Road, Upper Hill, P.O. Box 30041 – 00100, Nairobi E-mail: firstname.lastname@example.org
3.The Chief Registrar of the Judiciary Supreme Court Building City Hall Way, P.O. Box 30041 – 00100, Nairobi E-mail: email@example.com
4.The Director of Public Prosecutions Office of the Director of Public Prosecutions NSSF Building, 19thFlr, Eastern Wing, Bishops Road P.O. Box 10174-00100 Nairobi.
5.The Inspector General of Police National Police Service Jogoo House ‘A’ Taifa Road P.O. Box 44249 – 00100 Nairobi. E-mail: firstname.lastname@example.org
6.The Director of Criminal Investigations Directorate of Criminal Investigation Mazingira House Kiambu Road Opp. Forestry Department Headquarters P.O. Box 30036 – 00100 Nairobi.