Anger, condemnation after arrest of judges Aggrey Muchelule and Said Chitembwe
By Paul Ogemba
| July 23rd 2021
Anger, condemnation and shock greeted the arrest of two High Court judges even as the pair launched a fightback to stop any further action by the Director of Criminal Investigations (DCI) to prosecute them.
Justices Aggrey Muchelule and Said Chitembwe got a court order stopping the DCI from summoning, arresting or prosecuting them over bribery allegations.
Chief Justice Martha Koome said she was kept in the dark about the investigations and arrests.
In the court order, Justice Jairus Ngaah ruled that there is imminent danger of the judges being arrested and prosecuted for an unknown offence of receiving suspicious money.
“In order to maintain the substratum of the case, the court stops the DCI or any of its agents from investigating, summoning, arresting or charging the judges on account of the searches conducted in their chambers over claims of bribery,” ruled Ngaah.
The CJ joined the Kenya Magistrates and Judges Association (KMJA) and the Senior Counsel Bar and Law Society of Kenya (LSK) in condemning the arrests and termed the move a scheme to interfere with judicial independence.
Justice Koome said she will issue a comprehensive statement once investigations and the case filed by the judges are concluded.
“No formal report was made to me as the head of the Judiciary or chairperson of the Judicial Service Commission. The arrest of the two judges has caused anxiety among judges and judicial officers but I want to assure them that they are protected by the Constitution,” said CJ Koome.
The Senior Counsel Bar through chairman Fred Ojiambo termed the arrests as "the worst kind of impetuous and irresponsible conduct by the DCI aimed at humiliating the judges and eroding judicial independence".
He added that a judge’s chamber or court must be immunised from the kind of violation as it endangers not just the sanctity of the judicial space but also the rights of other litigants whose matters may be before the judge.
“When a judge’s confidence is shaken by such careless, reckless and draconian exercise of State power, it is a sure step towards lawless rule and autocracy which leads to anarchy. Their action must be deprecated and condemned regardless of what merit they may have,” said Ojiambo.
KMJA in its statement expressed concerns over the continued intimidation and attack on judges.
The judges association’s secretary Derrick Kuto stated that the pattern of attacks against individual judges is an old school habit meant to instil fear in judicial officers and stop them from exercising their independence.
In the court case filed through lawyers Danstan Omari and Cliff Ombeta, the judges argued that the DCI officers stormed Justice Muchelule and Justice Chitembwe’s chambers without any search warrants on claims that they received bribes but their searches did not recover anything.
“The officers prepared an inventory of their search which disclosed that the alleged bribery money was never found. It is against the rules of natural justice to condemn any individual over allegations unknown to them,” said Omari.
According to Omari, Justice Muchelule was being punished as a result of pressure being put on the president to appoint him to the Court of Appeal after his nomination was declined alongside five other judges.
Ombeta submitted that when the DCI officers stormed Justice Muchelule’s office, they tried to force him out so as to plant the bribe money but he refused.
“The judges were lured into a trap but the trap did not work. They were not told who the complainant in the bribery allegations was and the money they were talking about was never recovered,” said Ombeta.
The lawyers argued that investigations against the two judges were commenced with an ulterior motive and asked the court not to allow the DCI to intimidate judges.
Muchelule, in his affidavit, narrated the ordeal he went through at the hands of DCI officers, stating that some strangers stormed his chambers at the Milimani High Court to carry out a search for an unknown amount of money he allegedly received in suspicious circumstances.
He said the search did not yield anything after which the officers arrested him, took him to DCI headquarters, interrogated him before releasing him.
“Their actions were arbitrary and contrary to the Constitution. Going by their unruly behaviour, they can arrest me again and prosecute me on trumped-up charges,” claimed Muchelule.
The judges also sued the Director of Public Prosecution as a respondent in the case but the DPP Noordin Haji distanced himself from their tribulations stating that his office was not briefed and notified of any impending investigations against the judges.
Justice Ngaah directed the DCI and Inspector of Police to respond to the suit within seven days and scheduled the hearing on September 28.
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