In brief we offer an alternative view of the Judgement of the Constitutional Court in Re Deepak Kamani & Rashmi Kamani (Petition No. 199 & 200 of 2007) dated June 22nd 2007 by Justice Nyamu, Wendo and Emukule.
In this constitutional proceedings, Deepak Chamanlal Kamani and his brother Rashmi Chamanlal Kamani had gone to court to obtain various orders and declarations which if they had been granted would have had grave ramifications on the prospect of ever resolving the Anglo Leasing corruption scandal, in which they both stand implicated and indeed wanted by the Kenya Police and the Kenya Anti Corruption Commission. Column inches are already being filled with discussions of how big a blow this judgement is to the Kenya Anti Corruption Commission, and we shall not bore readers with more of the same. Our perspective reverses conventional analyses and looks for instruction at the orders that the Kamani brothers’ lawyer, Fred Ngatia, sought to be granted but was happily refused by the court. The four orders are:
Had Deepak and Rashmi Kamani obtained these orders, Kenyans should have no doubt; they would have been cleared and immunized from investigation and prosecution. The orders remind of the infamous Saitoti decision of 2006 in which Fred Ngatia succeeded in immunizing Prof George Saitoti from investigation and prosecution on the basis of the clear findings against him by the Judicial Commission of Inquiry into the Goldenberg Affair. No doubt also web pages such as these would have been censored with judicial sanction. To this extent, we are satisfied that the court did not deal the killer blow to the Anglo Leasing investigation that some might think is the case. The Kamani brothers did succeed though in obtaining a declaration that section 31 of the Anti Corruption and Economic Crimes Act is unconstitutional. Presumably KACC’s lawyers are drafting the requisite appeal pleadings as this is a controversial finding. It is instructive that this clause provided KACC with the authority to go to court for orders to compel the surrender of travel documents by corruption suspects who are flight risks. That is to say, corruption suspects who are likely to become fugitives. As the Kamani brothers surely are for those who read this judgement carefully and take the time to read the submissions and to reconstruct a timeline of events from page 7 and 8 of the judgement. So, it would appear that KACC has lost its ability to at the very least make corruption suspects’ flight options more limited and inconvenient. Even more instructive is the fact that the finding has been received with a total absence of voiced dissatisfaction by either the KACC or the Director of Public Prosecutions who appeared for the Attorney General and for the Principal Immigration Officer and the Chief Magistrate of Kibera. Pointedly, Mr. Tobiko Keriako, the DPP and once a defence lawyer for another Anglo Leasing suspect, is quoted as lauding the finding of unconstitutionality which clearly in his view was “more an instrument of oppression than an aid to the fight against corruption.” Oddly, he never made this point in his submissions on the constitutionality of the section, which submissions are recorded in the space of exactly two very brief paragraphs on pages 18 and 19 of the 110 page judgement. Also noteworthy and unremarked, is the Judges’ contention (see page 81) that corruption does not fall within any of the 4 constitutional purposes justifying limitations of constitutional rights. The Kenya Constitution states these purposes to comprise:- public interest- public morality- public safety and- public order The full text of the Judgement is uploaded for further analysis. We have our own doubts as to the juridical basis for some of the findings contained in it, but we reserve detailed comment for now. We are left wondering why the DPP and KACC appear to have put up such a dispirited defence in the face of this assault on the investigative power of the Kenya Anti Corruption Commission and section 31 of the Anti Corruption and Economic Crimes Act (reproduced below).
Kenya Anti Corruption and Economic Crimes Act, 2003| Surrender of travel documents. | 31.(1) On the ex parte application of the Commission, a court may issue an order requiring a person to surrender his travel documents to the Commission if — |
| (a) the person is reasonably suspected of corruption or economic crime; and | |
| (b) the corruption or economic crime concerned is being investigated. | |
| (2) If a person surrenders his travel documents pursuant to an order under subsection (1), the Commission — | |
| (a) shall return the documents after the investigation of the corruption or economic crime concerned is completed, if no criminal proceedings are to be instituted; and | |
| (b) may return the documents, at its discretion, either with or without conditions to ensure the appearance of the person. | |
| (3) A person against whom an order under subsection (1) is made may apply to the court to discharge or vary the order or to order the return of his travel documents and the court may, after hearing the parties, discharge or vary the order, order the return of the travel documents, or dismiss the application. | |
| (4) If a person fails to surrender his travel documents pursuant to an order under subsection (1), the person may be arrested and brought before the court and the court shall, unless the court is satisfied that the person does not have any travel documents, order that the person be detained pending the conclusion of the investigation of the corruption or economic crime concerned. | |
| (5) A person who is detained pursuant to an order under subsection (4) shall be released if — | |
| (a) he surrenders his travel documents to the Commission; | |
| (b) he satisfies the court that he does not have any travel documents; or | |
| (c) the investigation of the corruption or economic crime concerned is completed and the court is satisfied that no criminal proceedings are to be instituted. | |
| (6) A person who is detained pursuant to an order under subsection (4) shall be brought before the court at least every eight days or at such shorter intervals as the court may order, to determine if the person should be released under subsection (5). | |