PRESS STATEMENT ON THE JUDGEMENT IN THE CASE OF HON. PROF. GEORGE SAITOTI
I HAVE NOW HAD TIME TO STUDY, ANALYSE AND RE-EVALUATE THE JUDGEMENT BY A BENCH OF THE HIGH COURT DELIVERED ON 31ST JULY 2006 WHICH GRANTED AN ORDER OF CERTIORARI QUASHING SEVERAL PARAGRAPHS OF THE BOSIRE COMMISSION AS THEY RELATED TO HON. PROF. SAITOTI AND AN ORDER OF PROHIBITION BARRING THE ATTORNEY GENERAL FROM INSTITUTING ANY CRIMINAL PROSECUTION OR CHARGES AGAINST PROF. SAITOTI ARISING OUT OF THE GOLDENBERG AFFAIR. THE JUDGEMENT APPEARS TO HAVE TURNED THE WELL KNOWN AND SETTLED PRINCIPLES OF CONSTITUTIONAL, ADMINISTRATIVE, CRIMINAL LAW AND LEGAL JURISPRUDENCE TOPSY TURVY: LET ME GIVE A FEW EXAMPLES:
1. THEY ERRED, MISDIRECTED AND MISAPPLIED THE PRINCIPLE OF “DOUBLE JEOPARDY” BY FAILING TO APPRECIATE THAT THE NATIONAL ASSEMBLY HAS NO CRIMINAL INVESTIGATIVE POWERS OR MANDATE; THE NATIONAL ASSEMBLY IS NOT A CRIMINAL TRIAL COURT AND DOES NOT “TRY” “ACQUIT” OR “CONVICT” THOSE SUSPECTED OF CRIMINAL OFFENCES. THE EFFECT OF THIS JUDGEMENT IS THAT PARLIAMENT CAN BY RESOLUTION ABSOLVE ANY PERSON OF ANY CRIMINAL CULPABILITY. UNDER S.77 OF THE CONSTITUTION, THE GUILT OR INNOCENCE OF ANY PERSON IS DETERMINED BY AN IMPARTIAL AND INDEPENDENT COURT OF COMPETENT JURISDICTION.
2. BY HOLDING THAT THE ATTORNEY GENERAL IS ESTOPPED FROM PREFERRING ANY CRIMINAL CHARGES AGAINST PROF. SAITOTI SINCE HE HAD PREVIOUSLY ENTERED A NOLLE PROSEQUI TERMINATING A PRIVATE PROSECUTION BROUGHT AGAINST PROFESSOR SAITOTI BY HON. RAILA ODINGA THE LEARNED JUDGES COMPLETELY DISREGARDED THE CLEAR AND UNAMBIGUOUS PROVISIONS OF S.82 OF THE CRIMINAL PROCEDURE CODE WHICH STATES THAT A NOLLE PROSEQUI IS NOT A BAR TO SUBSEQUENT PROSECUTION OR CHARGE. IN ANY EVENT, THE NOLLE PROSEQUI WAS ENTERED BECAUSE OF FAILURE BY HON. ODINGA TO COMPLY WITH PROCEDURAL REQUIREMENT OF GIVING PRIOR NOTICE TO THE ATTORNEY GENERAL AND CANNOT BY ANY STRETCH OF IMAGINATION BE USED TO APPLY THE “DOUBLE JEOPARDY” PRINCIPLE.
3. THE HOLDING THAT THE ATTORNEY GENERAL HAS GIVEN AN ASSURANCE, UNDERTAKING OR PROMISE THAT PROF. SAITOTI WILL NOT BE CHARGED WITH ANY CRIMINAL OFFENCE IN RELATION TO 15% EXPORT COMPENSATION SCHEME IS WITHOUT ANY FACTUAL OR EVIDENTIAL BASIS. THE LEARNED JUDGES COMPLETELY MISCONSTRUED THE PURPOSE, TENOR AND CONTENT OF THE ATTORNEY GENERAL’S CONTRIBUTION TO THE DEBATE IN THE NATIONAL ASSEMBLY WHICH FAR FROM GIVING ANY SUCH ASSURANCE UNDERTAKING OR PROMISE WAS TO SUPPORT AN AMENDMENT TO KEEP THE GOLDENBERG AFFAIR ALIVE AND OPEN TO ENABLE INVESTIGATION AND PROSECUTIONS TO ENSUE. THE READING OF THE HANSARD REPORT WILL BEAR ME OUT.
4. THE LEARNED JUDGES COMPLETELY FAILED TO APPRECIATE THAT ALTHOUGH THE POLICY MAY HAVE REGULARLY ARRIVED AT, ITS IMPLEMENTATION REQUIRED AN AMENDMENT TO THE LOCAL MANUFACTURERS (EXPORT COMPENSATION) ACT AS HAD BEEN ADVISED BY THE CHIEF PARLIAMENTARY COUNSEL IN THE OFFICE OF THE ATTORNEY GENERAL, THE LATE MR. A. BULUMA AND FAILURE SO TO DO, RENDERED THE SCHEME ILLEGAL OR UNLAWFUL.
5. THE LEARNED JUDGES FAILED TO APPRECIATE THAT THE PERIOD WHICH THE ATTORNEY GENERAL CAN BE ACCUSED OF INERTIA HAS NOT EVEN BEGAN TO RUN AS THE ATTORNEY GENERAL HAS NOT UP TO NOW RECEIVED AN INVESTIGATION FILE WITH PRIMA FACIE EVIDENCE AGAINST PROF. SAITOTI. IN ANY EVENT, THERE IS NO LIMITATION PERIOD IN RESPECT OF CRIMINAL OFFENCES. THE BOSIRE COMMISSION OF INQUIRY CONSTITUTED A “FRESH EVENT” AND HAD UNEARTHED FRESH EVIDENCE RELATING TO THE GOLDENBERG AFFAIR.
6. CONTRARY TO WELL SETTLED PRINCIPLES OF JUDICIAL REVIEW, THE JUDGES RULED THAT THEY HAD THE POWER AND JURISDICTION TO REVIEW, RE-EVALUATE, CORRECT AND SUBSTITUTE THE FACTUAL FINDINGS AND DETERMINATIONS OF THE BOSIRE COMMISSION AS IF THE BOSIRE COMMISSION WAS A TRIAL COURT AND THEY WERE THE APPELLATE COURT AND THEREBY ARROGATED UNTO THEMSELVES A POWER THEY DID NOT HAVE. THEY FAILED TO HOLD, AS THEY SHOULD HAVE, THAT ANY EXPLANATIONS AND CONTENTIOUS CONSTITUTED ANTICIPATORY DEFENCES TO BE RAISED IN THE EVENT OF CRIMINAL PROSECUTIONS BEING INSTITUTED AGAINST HIM.
CONSEQUENTLY
1. THE FEW EXAMPLES OUTLINED ABOVE OUT OF THE MANY, DEMONSTRATE THAT THE FINDINGS AND PRONOUNCEMENTS IN THE HIGH COURT JUDGEMENT WERE MADE IN GRAVE ERROR, NOVEL BUT UNTENABLE JURISPRUDENCE WAS MADE AND A DANGEROUS LEGAL PRECEDENT CREATED. I AM THEREFORE OF THE CONSIDERED OPINION THAT THE HIGHEST COURT OF THE LAND, THAT IS, THE COURT OF APPEAL OF KENYA MUST BE GIVEN AN OPPORTUNITY TO INTERROGATE AND DETERMINE THE LEGALITY, PROPRIETY AND CORRECTNESS OF THE FINDINGS AND PRONOUNCEMENTS IN THE SAID JUDGEMENT. I HAVE THEREFORE DIRECTED THE DIRECTOR OF PUBLIC PROSECUTIONS TO FILE NOTICE OF APPEAL AND ON RECEIPT OF A CERTIFIED COPY OF THE PROCEEDINGS AND JUDGEMENT (WHICH HAVE ALREADY BEEN APPLIED FOR) TO FILE AN APPEAL AGAINST THE SAID JUDGEMENT.
2. FOR THE AVOIDANCE OF DOUBT, LET ME STATE THAT THE DECISION TO FILE AN APPEAL IS NOT A DECISION TO PROSECUTE PROF. SAITOTI. MY FOCUS IS THAT WE RECEIVE AN AUTHORITATIVE INTERPRETATION ON THESE IMPORTANT POINTS OF LAW BY THE COURT OF APPEAL. AS STATED IN PARAGRAPH 5 HEREOF, I HAVE NOT EVEN RECEIVED AN INVESTIGATION FILE ON THE MATTER. IF I RECEIVE SUCH A FILE THE MATTER WILL BE DECIDED ON IN ACCORDANCE WITH THE LAW. THE OCCASION HAS NOT ARISEN FOR ME TO MAKE A DECISION OR CHANGE MY MIND ON THE MATTER. THE ORDER OF PROHIBITION AGAINST THE ATTORNEY GENERAL WAS ISSUED PREMATURELY AND ON A PURELY SPECULATIVE BASIS.
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