By Nicholas Kamwendwa

The January 2012 issue of Nairobi Law Monthly brings into sharp focus serious issues concerning the following.

The code of conduct for the practice of Journalism as set out under Second Schedule to the Media Act, 2007.

  • The constitutional mandate of the Director of Public Prosecution.
  • Right of citizen to institute private criminal prosecution under Section 88 of the Criminal Procedure Code.
  • Rights of individuals and institution to the protection of their names and dignity as set out our laws and the Constitution of Kenya.
  • Constitutional responsibilities of a citizen.

From the onset, it must go on record that I am neither an advocate of either KenGen or its Board of Directors, nor am I holding brief for either of them. But it is imperative to bring into perspective certain legal issues.

In the magazine Mr Ahmednasir Abdullahi has disclosed that he has already instituted a constitutional petition against Mr Edward Njoroge and KenGen Company Limited vide Petition No. 278 of 2011 presumably under Article 35 of the Constitution.

Mr Abdullahi has further disclosed that he has also petitioned the office of the Director of Public Prosecutions (DPP) to commence Criminal proceedings against Mr Eddy Njoroge and the Board of Directors of KenGen. Indeed, Mr Abdullahi has threatened to privately prosecute Mr Njoroge and KenGen’s Board of Directors if the DPP does not charge them with Criminal offences.

Two issues arise from this:-

  • If indeed Mr Abdullahi has sufficient information that can culminate into criminal prosecution of the above-named persons, why has he sought recourse to the courts and invoked the provisions of Article 35 of the Constitution. Mr Abdullahi cannot blow both hot and cold.
  • Further if indeed Mr Abdullahi has forwarded a complaint and evidence to the DPP, why is he pressuring the DPP to commence the criminal prosecution against the aforementioned persons?

Threatening and pressuring

Indeed under Article 157(10), the DPP does not require the consent of any person or authority to commence criminal proceedings and in exercise of his powers or functions, the DPP should not be directed and control by any person or authority.

Indeed our current DPP has gone on record many a time as stating that he will only act on any complaint and make decision on the basis of evidence and the law. To me the DPP should not succumb to whims of Mr Abdullahi and Nairobi Law Monthly and rush to charge the abovementioned persons. His decision should only purely be based on the evidence and law otherwise he shall be violating his constitutional mandate as donated to him under Article 157.

To me, Mr Abdullahi is acting like a complainant, investigator, prosecutor and judge at the same time. Yes it is good that he investigated and blew the whistle over ‘theft’ of colossal sums of Kenyans money.

It is good that he has formally complained to the DPP but surely when he has starts threatening and pressuring the DPP to prosecute the above named persons and if does not, he will privately prosecute them, his agenda is seriously put into question.

The magazine and Mr Abdullahi have also passed judgement against the aforesaid persons without affording them a fair hearing and convicted them of criminal offences of theft and violation of the Public Procurement and Disposal Act, 2007.

The foregoing raises serious doubts and question as to the veracity of Mr Abdullahi contention that Nairobi Law monthly and Mr Abdullahi have nothing personal against Mr Njoroge, KenGen or the persons mentioned in the said magazine.

-The writer is an advocate of the High Court of Kenya.