DPP Noordin Haji raises 11 questions for court to answer in Justice Mwilu case
SEE ALSO :New graft exposé ahead of Uhuru's speechIn 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.
SEE ALSO :Why dams probe may take longHe 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. Double punishment 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.
- 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