Worrying case of law enforcer becoming a principal villain

It is very worrying when an agency like the Directorate of Criminal Investigations (DCI), on whose shoulders rests the onus of enforcing the law itself, flagrantly violates it with utter contempt to tenets of fairness and justice.

The tribulations of Mr Moses Macharia Kigo, a Nyahururu businessman trading as Mugo Wholesalers, illustrate this point.

His shop was raided on June 17, 2018 at the height of the highly publicised government raids on godowns in search of illicit sugar.

The raid was by officers from the DCI and more than 10,000 kilogrammes of sugar, some rice and green grams were carted away on his two lorries.

Two days later, he was charged with selling goods without the required certificate from the Kenya Bureau of Standards (Kebs).

On that day, his lawyer applied for and the court ordered the release of the two lorries, two weighing machines and two sealing machines. However, the investigating officer refused to release the equipment!

CONTEMPT

On December 19, 2018, the case was concluded with the court finding that there was insufficient evidence to convict Mugo Wholesalers and ordered the release of the impounded commodities.

On December 21, the Principal State Counsel advised the police that the Office of the Director of Public Prosecutions (DPP) had no intention of appealing against the court orders.

Strangely, this advice was acted on in breach because on December 25, 2018, the impounded commodities were instead taken to Nairobi and held at the DCI headquarters.

And yes, the same two lorries that should have been released months earlier were the ones used to ferry the goods!

On December 29, the court found that the District Criminal Investigations Officer in Nyahururu and the case investigating officer be held in contempt and that the impounded commodities be produced in court on January 7, 2019.

The commodities were not produced on that day and on February 22, the court found the two officers guilty of contempt and imposed a fine of Sh100,000 on each of them or five days in jail, and further ordered that the “ … exhibit stolen from the jurisdiction of the court be produced without further delay”.

INDEPENDENCE

The DCI, on February 21, tried to explain its bizarre behaviour in a letter to the Attorney-General that the DPP’s office in Nyahururu was refusing to appeal the court’s verdict “for no apparent reason”.

The DPP is an independent office with full jurisdiction over prosecutions and is expected to make judgments based on sound and thorough analysis of the facts.

It had returned its verdict and the DCI was bound to respect that judgment. It must not disregard the courts!

Not surprisingly, the High Court in Nyahururu, on April 5, 2019, declined to set aside the orders by the magistrate’s court against the two officers and ordered that the DCI should comply with the lower court’s orders by April 25.

This, yet again, was not to be as the parties were back in court on May 22, on the same matter.

The goods had not been released and it was only last Tuesday that they were finally released.

IMPUNITY

However, they were immediately impounded, opening up another chapter in this shocking saga of a law enforcer becoming a principal villain for reasons that can only be illegal.

A number of obvious questions flow out of this narration. Why is the office of the DCI hell-bent on holding on the sugar and other commodities with such impunity after repeated court orders that they be released?

The sugar supply was pronounced to be fit for consumption by the Kebs officer that testified.

Why was the consignment “stolen” from the jurisdiction of the Nyahururu court? Was the probe complete? Not according to Mr Mugo.

He gets his sugar supplies from a distributor in Nakuru who, to his knowledge, has not been spoken to at all over this matter.

Fairness would also demand that if the raids were on sugar suspected to contain poisonous substances that could harm people, most or all the sugar sellers in Nyahururu should have been investigated. This did not happen.

PRECEDENCE

One wholesaler in Nyandarua whose sugar, together with Mr Mugo’s, was ordered released on the first day the matter was heard, was “allowed” to collect and sell his sugar. He probably dealt with the matter the Kenyan way!

Seriously, however, the handling of this case is of grave concern because it demonstrates an impunity that will shake the confidence of anyone seeking justice in our courts.

It suggests that the office of DCI can completely disregard orders of the court just because they can! Very very worrying.

Tom Mshindi is the former editor-in-chief of the Nation Group and is now consulting. [email protected], @tmshindi