Director of Public Prosecutions (DPP) Noordin Haji has pitched a strong case against Deputy Chief Justice Philomena Mwilu through 11 questions to the High Court.
In what is shaping out as a battle for the soul of the Judiciary, Haji wants Chief Justice David Maraga to set up a bench of at least five judges to answer the questions and essentially clear the way for Mwilu’s prosecution.
Citing Article 157 of the Constitution which allows him to prosecute any person within the Kenyan territory, Haji says there is nothing special about Justice Mwilu to warrant him to keep off her.
“The article leaves no doubt as to the DPP’s powers to institute proceedings against the petitioner (Justice Mwilu) and the interested party (Stanley Muluvi),” read the submissions filed Friday by Senior Principal Prosecution counsel Lilian Ogwora.
In his arguments, the DPP says the High Court had already – last year – declared that he has the powers to initiate criminal cases against judicial officers. The question of judicial immunity does not therefore arise, he says.
And even if it arose, he says, it would not extend to acts that are criminal and committed outside the official duty of a judicial officer.
“Judicial officers, like any other person, are subject to the penal laws of the country and must be held to account where they fall afoul. Judges are not special beings who are immune to criminal prosecution,” Haji’s submissions also read.
According to the DPP, the courts cannot usurp his powers to assess evidence on what charges should be preferred and against whom. “Prosecution decisions should be left to the DPP who is constitutionally mandated to determine on the basis of evidence and public interest who is to be charged,” Haji says.
Justice Mwilu had argued in her application to stop the prosecution that she was involved in a commercial transaction, hence the same would not mutate to a criminal case. “It is our humble submission that the DPPwas neither influenced nor directed by any person, body or authority to direct investigations and consequently have the petitioner charged. It is therefore unnecessary for this court to intervene and halt the intended prosecution,” Haji’s submissions read.
He has also sought the court’s interpretation as to whether once a judge has been charged before a court they should cease to hold office.
Further, the DPP wants the court to answer whether he can trigger a parallel process of removing a judge through the Judicial Service Commission, while at the same time having criminal charges proceed in court.
He argues he is not bound by any recommendation by any other investigative body, hence a parallel process can run.
Mr Haji is of the view that removal of a judge through the JSC does not bear a penal consequence and cannot be said to be double punishment.
He urges the court to find that a criminal charge can be the basis of JSC commencing disciplinary proceedings against a judicial officer. However, he holds that disciplinary proceedings should not precede a criminal process.
“The issue that arises is what if the Constitutional body mandated to initiate the removal proceedings chooses not to trigger the process?” he poses.
And in the event the JSC fails to take action against a judge, he wants to know whether he can proceed to charge the officer in court.
Justice Mwilu wants the prosecution stopped, terming it a political witch hunt, following the annulment of President Kenyatta’s August 8 election by the Supreme Court.
Haji’s 11 questions
Whether DPP has powers to prosecute a sitting judge
If a judge enjoys security of tenure where criminal proceedings have commenced
Is a criminal case enough evidence to remove a judge from office?
Can DPP pursue a case against a judge facing JSC probe?
Whether DPP can initiate criminal proceedings in case JSC fails to take action
Can JSC use evidence in a criminal case to initiate removal of a judge?
If there is any other recourse against a judge if JSC fails to take action
Whether a judge is immune to criminal prosecution over acts committed outside duty
If political pronouncements can be the basis of claimed witch hunt
Does charging a judge amount to encroachment on the Judiciary independence?
Whether interested parties can ride on orders of a petitioner in a case