House handling of Ouko case makes a mockery of the law

Sunday March 5 2017

Auditor General Edward Ouko (right) with his lawyer Otiende Amollo.

Auditor General Edward Ouko (right) with his lawyer Otiende Amollo before the Finance, Trade and Planning Committee on February 28, 2017. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP 

By GEORGE KEGORO
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The troubles facing Auditor-General Edward Ouko can be traced back to the Anti-Corruption Summit at State House in October 2016, which was chaired by President Uhuru Kenyatta.

Remarkably, the Head of State scolded the Auditor-General for pursuing the Eurobond issue that, according to President Kenyatta, was “a matter that had long been closed by the relevant financial institutions”.

Since 2014, the Ethics and Anti-Corruption Commission has been conducting what looks like a routine investigation of the office of the Auditor-General. It lacked urgency until recently when the EACC appeared to have found a resolve to quickly bring the investigation to an end.

Subsequently, EACC recommended that the Director of Public Prosecutions Keriako Tobiko should approve the prosecution of a number of people, including Mr Ouko.

However, while he approved the prosecution of eight people, among them members of the staff of the Auditor-General’s office, including his former deputy Mr Stephen Kinuthia, the DPP dismissed the recommendation to prosecute Mr Ouko. Mr Tobiko also took the unprecedented step of briefing the media about the political pressure that he had come under to prosecute Mr Ouko, referring to the attempts as “sinister and mischievous”.

It was, the DPP said, “rather strange that an extreme wave of urgency has been imposed on this matter when the same was not there since 2014 when it was taken up by investigators.”

It would seem that the newfound urgency to prosecute the eight suspects has since vanished, lending credence to a perception that the only purpose of the case was to get at Mr Ouko. 

PROCESSED PETITION

An issue has been made about the speed with which the National Assembly has processed the petition: it was presented to the Clerk on February 14 and cleared on the same day.

In practice, Parliament now receives petitions from the public, but many of them do not see the light of day because there is a stringent procedure underpinned by the Petitions to Parliament (Procedure) Act, 2012. 

As a matter of internal procedure, when a petition is received, the clerk constitutes an internal committee, largely made up of lawyers, who review the petition for technical compliance. Once approved, the clerk sends the petition to the Speaker who is also required to scrutinise it for sufficiency.

In a demonstration of unusual speed, all the review stages were completed on the same day that the petition was presented, and on the following day, the Speaker and the Clerk put the petition on the order paper for discussion by the National Assembly, which then committed it to the Finance Committee. Simultaneously, arrangements were made to place an announcement in the media calling for public views regarding the petition.

The parliamentary petition is a relatively new mechanism introduced by the 2010 Constitution. Apart from the Petitions to Parliament (Procedure) Act, 2012, the leadership in Parliament guides the management of petitions. For example, on October 22, 2015, Speaker Justin Muturi clarified the procedures around petitions.

He said there are only two grounds on which a constitutional officeholder, like the Auditor-General or a judge, can lawfully be removed from office. First, a serious breach of the Constitution, and second, gross misconduct.

Mr Muturi explained that there were two stages in processing a petition seeking the removal of a constitutional officeholder and that “in the first instance, [the Standing Orders] require the Speaker to take into account constitutional and evidentiary requirements while determining the admissibility or otherwise of [the petition]” including petitions for the removal of constitutional officeholders.

He explained that “the Speaker would in effect be examining whether the Special Motion as presented meets the threshold of the grounds envisaged under the relevant article of the Constitution,” and added that, “A duty is imposed on the Speaker to examine the facts as stated … to alleged gross violation of the Constitution or gross misconduct.”

FORMAL CORRECTIONS

The second stage is what actually takes place before the relevant committee, “which is mandated to investigate and report” to the House.

In the practice, Parliament receives many petitions and the practice is for the clerk to constitute an advisory committee, consisting of internal lawyers, who will carry out a first review of the petition for form and substance.

It is usual for petitioners to be asked to make formal corrections at this stage. If a petition is to go forward, the clerk will need to present it to the Speaker who will then report it to the House.

The petition against Mr Ouko is dated February 13 and was presented the following day when it apparently went through all the stages. The following day, the petition was slotted on the order paper and on February 16 it came up for notification before the Assembly. Interestingly, an announcement calling for public participation appeared in the dailies on February 17 (meaning it was placed the previous day). 

The sequence of events does not give confidence that the Speaker ensured that the rigorous checks he recommended earlier were observed. On the contrary, the clockwork efficiency suggests the management of this petition was choreographed.

The petition had been presented by Emmanuel Mwagonah, a lawyer, described as “one of the petitioners”. If they exist, the rest of the petitioners were not disclosed. A requirement of the Petitions Act is that a petition must “contain the names, addresses, identification numbers, signature or a thumb impression of the petitioner or of every petitioner.”  The petition against Mr Ouko appears not to have met this requirement.

Questions surrounding the identity of the petitioner became more complicated when, at the hearing before the committee last week, Mr Mwagonah disclosed that he was not the petitioner after all, and that the true petitioner was a client of his who wished to remain anonymous. When pressed to reveal the identity of the client, he declined, citing advocate/client privilege. What had started as a regular petition became an anonymous complaint.    

ANNONYMOUS COMPLAINTS

There is a body of literature about anonymous complaints.  While these can serve legitimate interests, they can also be malicious and ill-founded.  A central handicap in anonymous complaints is that it is difficult to assess the motive of the complainant. Whatever the utility of anonymous complaints, the legal regime under which the committee is operating does not permit such complaints, and the procedure.

Last week, the limited amount of time allowed to the committee, together with disruptive behaviour at the hearing, undermined an orderly conduct of business.

It soon became clear that Mr Mwagonah had no evidence to support his allegations and was hoping that his petition would trigger an investigation.

But while the committee eventually allowed Mr Mwagonah time to furnish evidence to support his claims, the committee also made Mr Ouko to start replying to the allegations against him! Mr Ouko then offered his defence and has presumably finished his case.

The trouble though is that the petitioner had not brought whatever case Mr Ouko was supposed to respond to.

It is difficult to see how this can possibly end well for the National Assembly. While the mode of procedure adopted since the petition was received, clearly contravenes Parliament’s own stated procedures, no attempt has been made to explain the variances.

Whether or not Mr Ouko is guilty of the things of which he is accused, the manner in which the case against him was handled has already done monumental damage to the Constitution.