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DPP should summon and have Moses Kuria charged

KETHI D KILONZO
By Kethi Kilonzo | October 18th 2015

NAIROBI: The MP for Gatundu South, Moses Kuria, did not fix the Deputy President. He did not fix the Deputy President before the Kriegler or the Waki Commission. He did not fix the Deputy President before or at the International Criminal Court. There is no such thing in law or in judicial proceedings known as “fixing”.

Moses Kuria has publicly and repeatedly confessed to having committed criminal offences.

Like any other person suspected of committing a criminal offence, he should be summoned to record a statement with the police, prosecuted, and if he maintains his confessions of guilt before a magistrate imprisoned, fined or both.

Honourable Kuria has, in public, stated that he bribed five witnesses to give false testimony against the Deputy President at the hearing of two commissions of inquiry.

These are the Kriegler Commission and the Waki Commission. These two Commissions of Inquiry were established by former President Mwai Kibaki under the Commission of Inquiry Act.

Under Section 13 (1) of the Commission of Inquiry Act, the proceedings of the commission are judicial proceedings. It is therefore an offence under Section 108 (1) of the Penal Code for a person to give false testimony to a commission of inquiry. Such a person is guilty of the offence known as perjury.

Ignorance of the law will not be a defence for Kuria.

By publicly admitting to aiding, advising or procuring witnesses to give false evidence to either or both the Kriegler and Waki Commission, he has admitted to committing the offence known as subornation of perjury under Section 108 (2) of the Penal Code.

In procuring these five witnesses to give false testimony against the Deputy President he also conspired with them.

He has therefore publicly admitted to conspiracy to commit perjury under Section 395 of the Penal Code. Fortunately for him, he cannot be charged with conspiracy until and unless he names the persons with whom he conspired with and one or more of them are arrested and charged with him.

Whatever his intentions or motives are in making such confessions, the police and the DPP are under a legal obligation to summon him, investigate, and prosecute him.

The wrongs he has publicly confessed to are prohibited by our laws, and were committed in the country.

By interfering with the work of the Kriegler and Waki Commission he interfered with the administration of justice in Kenya.

The police and the DPP should take action against him regardless of the fact that he now publicly promises to put his confessions on record under oath at the ICC. So far the public confessions of commission of crimes by Kuria have been met by silence and inaction by the police and the DPP.

Under Article 55 of the Rome Statute and Rule 74 of the ICC Rules of Procedure & Evidence a person has a right to refuse to give a statement or evidence that will incriminate him in the commission of an offence.

Such a witness, before giving self-incriminating evidence, can request for assurances of subsequent protection by the court.

If the advocates of the Deputy President intend to call Honorable MP Moses Kuria as a witness and are aware that his testimony would incriminate him in the commission of an offence, they had a right to ask the ICC for his evidence to be given in camera and the records of his testimony sealed.

Honourable MP Moses Kuria did not need to make any public confession in Kenya or elsewhere in order to assist the Deputy President’s defence at the ICC.

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