Uhuru broke law in graft probe, judges declare

Former Transport CS Eng. Michael Kamau at the Milimani High Court during the hearing of a judgement in a case in which he is challenging his prosecution over corruption, 9th March,2016. charges. PHOTO.FIDELIS KABUNYI

The President violated the Constitution by ordering the anti-corruption commission to complete investigations against top State officials within 60 days, a court has ruled.

The judges said the President ought to respect the independence of constitutional offices and should not have given such a directive without taking into consideration the magnitude of the investigations involved.

“By directing the Ethics and Anti-Corruption Commission (EACC) to complete investigations within 60 days, he indeed exceeded his powers. We declare the ultimatum given by the President as unconstitutional,” the High Court ruled.

Justices George Odunga, Mumbi Ngugi and Joseph Onguto, however, declined to stop Director of Public Prosecutions Keriako Tobiko from prosecuting former Cabinet secretaries Michael Kamau and Charity Ngilu.

Mr Kamau and Ms Ngilu, who were among those asked to step aside and subsequently sacked, had sought to block their prosecution on grounds that the EACC was not legally constituted due to the hounding out of office of commissioners.

President Uhuru Kenyatta in March last year ordered all State officials mentioned in an EACC report he submitted to Parliament to step aside to pave way for investigations. He also ordered EACC to forward the case files to the DPP for action, saying the investigations were to be completed within 60 days.

The Head of State took the bold step of attaching the confidential report from EACC Chief Executive Officer Halakhe Waqo as part of his annual report on values to Parliament, urging Speakers of both Houses to ensure they were put to good use.

Yesterday, the three-judge Bench said EACC, just like other constitutional bodies, should not be subjected to the control or influence of any person. “The issues raised by the petitioners can only be determined by the trial court as it is the right forum to determine the credibility of the evidence presented in court in acquitting or convicting the accused persons. We decline to prohibit the prosecution of the petitioners,” the ruling read by Justice Odunga said.

The judges said the report given by EACC to President Kenyatta was not in violation of the law as any constitutional commission or institution, including the National Assembly and the Senate, can be called upon to hand over such a report.

“The report handed over to the President was not in violation of the law as two of the EACC commissioners were in office at the time the report was forwarded to the President,” the judges ruled.

The judges said EACC was legally alive but inactive at the time it made recommendations to prosecute over 150 senior State officials implicated in the report.

The court also found that EACC was not properly constituted at the time it recommended that Kamau and Ngilu be prosecuted. The judges dismissed Ngilu’s argument that at the time EACC investigated and recommended her prosecution  in relation to the Karen land saga, the commission did not have a chairperson or members and accordingly did not exist. The judges said EACC, despite being capable of suing and being sued, is an autonomous legal unit with perpetual succession and continues to exist independent of any human management or governance.