Murkomen law firm off the hook in NYS scandal

The High Court has stopped the implementation of a recommendation by the National Assembly’s Public Accounts Committee (PAC) that Senate Majority Leader Kipchumba Murkomen and partners in his law firm be prosecuted for abetting money laundering in a National Youth Service (NYS) scandal.

Justice Weldon Korir has found that the PAC has no powers to recommend to the Office of Director of Public Prosecution (ODPP) how to perform its prosecutorial duties as happened in the NYS investigation and related recommendations.

The committee had, in its March 16, 2017 report, made a raft of recommendations, among them the prosecution of partners of Sing’oei Murkomen & Sigei Associates, led by Mr Hillary Sigei, for their role in making transactions related to the multibillion-shilling NYS1 scandal.

Justice Korir, of the Constitutional and Human Rights Division, said it would have been better for the PAC to make a finding that crimes may have been committed and let the investigative agencies take it up from there.

“By recommending in its report that the DPP should prefer charges of aiding and abetting money laundering against certain persons, the PAC transgressed into the province of the investigative and prosecutorial agencies,” said Justice Korir.

Were the DPP to prosecute the law firm partners, the judge said, it would have been difficult to convince a reasonable person in the streets of Nairobi that the prosecution is not an implementation of the command of the National Assembly.

COMPLICITY

He found that in such circumstances, the independence of the investigative and prosecutorial authorities would amount to nothing.

“The National Assembly cannot tell the DPP to charge Mr Sigei and his partners with a particular offence. What then is the role of the DPP? Is he a puppet of the National Assembly?” posed the court while noting that the National Assembly crossed its boundaries by directing the DCI and the DPP to act in a particular manner.

The court was ruling on a petition filed by Mr Sigei and the law firm challenging the PAC recommendations following its investigations into the NYS1 scandal.

The investigations concluded that the petitioners had aided and abetted in money laundering, and that Mr Sigei had received funds stolen from NYS for personal gain.

Justice Korir said the independence and decisions of the DPP should not be influenced by other persons or authorities.

Where it is deemed or perceived that the DPP is functioning under the direction of another, or that the decision to prosecute was not independent, it can have serious implications on the legitimacy of the decision to prosecute and the prosecution itself.

“That concern becomes acute when it is an all-powerful arm of government like the National Assembly that is directing the DPP to mount a prosecution,” stated Justice Korir while finding in the case that the National Assembly commanded independent constitutional office holders to take prejudicial action against the petitioners.

BILL OF RIGHTS

Although the doctrine of separation of powers between the three arms of the government is integral to any working democracy, the court said, the same cannot be maintained while Parliament, in exercising its legal mandate, disregards and violates the rights and fundamental freedoms that form the Bill of Rights.

“Indeed, Parliament cannot violate the Constitution and the laws of the land and expect its actions, once challenged, to be upheld,” the court ruled.

But this is not to say that the DCI and the DPP cannot investigate lawyer Sigei and his partners in the law firm and prosecute them, if need be, for any criminal role they may have played in the scandal.

The petitioners had sued the Speaker of the National Assembly, the Ethics and Anti-corruption Commission (EACC), the DPP and the Attorney-General, contending that their right to fair administrative action was violated.

It was said that the law firm was used to launder irregularly acquired public funds.

The EACC, in a response filed by its investigator Joyce Munene, said the law firm was involved in a Sh500,000 transaction between NYS and a company called Out of Box Ltd. The money was used for the purchase of a piece of land in Eldoret.

Ms Munene reassured the petitioners that they would be given an opportunity to defend themselves against the allegations.

The Speaker of the National Assembly submitted that the petitioners had failed to establish that the PAC had violated their constitutional rights.