Judiciary dredging up corpses we’d rather remained buried

Unusual legal proceedings are underway in the High Court, in which the Director of Public Prosecutions seeks to reclaim his right to prosecute the Governor of the Central Bank Njuguna Ndung’u.

The Ethics and Anti-Corruption Commission had brought criminal charges against Mr Ndung’u for allegedly irregularly awarding a tender valued at Sh1.2 billion. However, Mr Ndung’u obtained orders from the High Court preventing his arrest until he had had the chance to question the basis for the intended prosecution. (READ: I have enough evidence to nail CBK Governor, Tobiko says)

The proceedings are unusual because they challenge the constitutional authority of the DPP to prosecute criminal cases. They are also odd because they have displaced the presumption that the DPP can prosecute whenever he wants, and placed him in a situation where he needs to justify the exercise of his powers.

The Ndung’u case comes during a week when Nairobi Governor Evans Kidero, and his Women Representative counterpart, Rachel Shebesh, finally recorded a consent which will lead to the termination of criminal charges that the DPP sought to bring against the two, based on an incident last year in which Dr Kidero allegedly assaulted Ms Shebesh. (READ: Shebesh and Kidero feud terminated)

In those proceedings, too, the authority of the DPP to prosecute was curtailed by the High Court which preferred an amicable resolution of the Shebesh/Kidero saga. It required that a prosecution would only take place if the two failed to reach a settlement. In this, as well, the court erected a barrier against the DPP and imposed a particular way of handling the dispute, which it justified on the basis that the Constitution permits mediation of legal disputes.

These two cases come at a time when the Judiciary has been accused of overreaching itself in the context of the imbroglio involving the removal of Embu Governor Martin Wambora. The Speakers of the two Houses of Parliament have since declared that they will not obey “idiotic” court orders directed at their Houses.

INSTITUTIONS SUPREME

The blockade of these criminal trials shares something in common with the dispute between the courts and the Legislature. Both situations constitute a contestation over the extent to which courts can prevent the exercise of powers conferred on other organs by the Constitution.

While operating within their respective realms, both the Legislature and the DPP are supreme and cannot be prevented from carrying out their constitutional mandates. However, the cases in court purport to curtail their powers, and have thus raised controversy.

The Ndung’u and Kidero/Shebesh cases are not the first in which the power to prosecute, hitherto presumed, has come under judicial attack. Over the years, the prosecution of the main suspects in the Goldenberg scandal has suffered the same fate. The late George Saitoti and Wilfred Koinange, as well as former CBK Governor Eric Kotut, all obtained orders that prevented their prosecution.

Before then, the High Court had struck down the prosecution powers of the Kenya Anti-Corruption Authority in the Gachiengo case. Earlier, the court had also prevented the prosecution of Kipng’eno arap Ngeny for crimes allied to corruption, which he allegedly committed when he headed the now-defunct Kenya Posts and Telecommunications Corporation.

All these cases share three commonalities. First, they were all attempts to prosecute high-profile figures in Kenyan society. Second, the prosecutions were viewed as running against the wishes of the political establishment. Third, the individual decision of the court in each case was criticised as a curious application of criminal law. During the vetting of judges and magistrates , these kinds of cases attracted great interest from the vetting board, which had a deprecatory attitude towards them.

The Ndung’u and Kidero/Shebesh proceedings fall into this old pattern in which the High Court made tendentious orders based on an unusual interpretation of the criminal law. The Kidero/Shebesh case broke new ground in that the court itself sought, and obtained, a particular outcome in the proceedings, and thus appeared to descend into the arena of the conflict.

The Ndung’u and Kidero/Shebesh cases carry the danger of reinstating the two streams of criminal justice which were evident in the yesteryear Judiciary, and in which ordinary people facing criminal charges would be compelled to go through a full trial, while those with political influence would be allowed to contest, usually successfully, the very right to prosecute them.

Unlike the Legislature, the DPP is not in a position to choose which court orders to obey and which ones to disregard, since the exercise of his functions occurs in the arena of the court.

CONTENTIOUS PREROGATIVE

In the Ndung’u and Kidero/Shebesh cases, the High Court is promoting a contentious view that it has the prerogative to decide whom the DPP can prosecute, and that it can, therefore, prevent the commencement of a prosecution. It is also promoting a view, novel to the enforcement of the criminal law, that it can require parties to reconcile in order to avoid prosecution. In the particular case, Kidero and Shebesh would have been co-accused, with the DPP their accuser. But the settlement was between the potential co-accused and didn’t involve the DPP.

These cases add to a growing frustration about the exercise of judicial power against which the Legislature in particular has openly revolted. While the courts have done relatively well during the Mutunga era, the handling of the Ndung’u and Kidero/Shebesh cases feels like a blast from the past, and raises genuine concerns which the country thought it had overcome.

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