Evidence of a big fight between the prosecution and the defence teams emerged Thursday during the hearing of a petition seeking to determine whether charges can be brought against a sitting judge.
As lawyers representing Deputy Chief Justice Philomena Mwilu questioned the appointment of Queen’s Counsel Khawar Qureshi to represent Director of Public Prosecutions Noordin Haji in the case, prosecutors, for their part, want Senior Counsels James Orengo and Okong’o Omogeni, both senators, disqualified from representing Ms Mwilu.
First to express dissent was Mr Orengo, who said there was no proof that Prof Qureshi had been cleared to represent Mr Haji because there was no certificate showing that he has been allowed to practise law in Kenya.
Mr Orengo further said that although Mr Haji can appoint an advocate of his choice to represent him in any matter, section 85 of the criminal procedures code, which allows him to appoint special prosecutors, only touches on criminal matters or an appeal arising from a criminal case.
He dismissed a letter filed in court from Attorney-General Kihara Kariuki addressed to the Chief Registrar of the Judiciary and a gazette notice confirming Prof Qureshi’s appointment, saying they were not adequate proof that he is qualified to practise law in the country.
“We have not been shown a valid practising certificate, for purposes of our courts, under the Advocates Act,” he said. He said good practice required that the matter be raised at the earliest opportune time.
In response, Secretary of Prosecutions Dorcas Oduor said Mr Orengo could not question the powers of the DPP or the AG to appoint an advocate of his choice to represent him in any matter.
The prosecutor said Mr Orengo should make a formal application and allow the DPP to respond appropriately.
She said Mr Haji had directed Prof Qureshi as the lead lawyer in the case and the issue of his appointment should be addressed first.
“We are disappointed that the petitioner’s senior counsel has [seen it] fit to raise such misconceived objections to the appearance of an independent Queen’s Counsel, who is also a deputy judge of the High Court of England and Wales, in this matter,” Ms Oduor said.
Later, Ms Oduor made an application for Mr Orengo, the Siaya senator, and his Nyamira counterpart Mr Omogeni to be disqualified from representing Ms Mwilu in the case.
According to the DPP, the two sit on the Senate’s Justice and Legal Affairs Committee, which plays an oversight role on the DPP and AG.
She said on Wednesday that Mr Haji appeared before the committee and the appointment of Prof Qureshi was raised and the DPP addressed the question and tabled crucial documents touching on the case.
Ms Oduor said that both senators failed to inform the Senate that they represent Ms Mwilu or even the court that they were privy to information or documents shared before the committee.
Speaking later to reporters, Prof Qureshi said it was such an honour to appoint him to lead the case and he believes that his wide experience would help enrich the prosecution team.
He said he has represented many countries in international arbitrations and cases and he could not turn down the offer from the DPP.
After hearing the objections, Justices Helen Omondi, Mumbi Ngugi, Francis Tuiyot, William Musyoka and Chacha Mwita directed the parties to file all objections within 14 days and responses afterwards.
They said that all the matters, including applications by parties seeking to join the case, will be heard on January 17.
FIDA-Kenya and the International Commission of Jurists (ICJ-Kenya), as well as lawyer Adrian Kamotho, have sought to join the case, a move opposed by Mr Haji and the Mr Kariuki.
In the petition, Mr Haji wants the court to determine whether criminal prosecution of a sitting judge amounts to encroachment on the independence of the Judiciary.
Mr Haji also wants the court to determine whether criminal proceedings can be initiated against a sitting judge and whether before the commencement of such criminal prosecution, it is constitutionally necessary to remove the judge from office.
Other issues to be considered by the bench is whether the prosecution can proceed to institute criminal proceedings where the Judicial Service Commission has taken no action against a sitting judge, despite knowledge and information about the criminal conduct of the judge.