Abuse of Power!

[miguna]

Thursday, November 10, 2005


NEWS

Wako moves to end campaign violence suit

Story by JILLO KADIDA
Publication Date: 11/10/2005

Hamisi MP George Khaniri (left) and Yes secretariat boss Titus Mbathi after the hearing of a criminal case filed against them by the Kenya National Commission on Human Rights in a Nairobi court yesterday. Photo by Paul Waweru
The attorney-general yesterday moved to terminate a criminal case against Hamisi MP George Khaniri and Mr Titus Mbathi, director-general of the Yes secretariat .

Acting for Mr Amos Wako, the director of public prosecutions, Mr Keriako Tobiko, applied to take over the private prosecution filed by the Kenya National Commission on Human Rights.

Mr Tobiko immediately presented a nolle prosequi – an undertaking that there was no longer any case to prosecute.

Last week, Nairobi chief magistrate Aggrey Muchelule summoned the two to appear in court to plead to the charges of inciting violence and abusing office.

Lawyer objected

Yesterday, lawyer Neville Amollo, representing the rights body, objected to the application to take over and terminate the case.

He sought an adjournment for time to reply to the submissions by Mr Tobiko. But the DPP said the application was an exercise in futility because once a nolle prosequi is entered, the court had no choice but to accept it.

And if there was any challenge to the nolle prosequi, he said, the aggrieved party ought to move to the High Court and file a constitutional application.

Postpone inevitable

The DPP further said to adjourn the matter was to postpone the inevitable.

However, trial magistrate Rosemell Mutoka allowed the application for adjournment, saying the parties had a right to respond and be heard.

The magistrate put the nolle prosequi on hold until next week.

The case is scheduled to come up on November 15 when the commission and the accused are expected to reply to the DPP's submissions.

At the same time, Mr Wako directed police commissioner Mohammed Hussein Ali to investigate referendum campaign violence.

Specifically, Maj-Gen Ali was directed to investigate the Hamisi MP and other politicians. Speaking as he sought to terminate the criminal case, Mr Tobiko told the Nairobi court that once investigations are completed, all those found to have committed an offence would be prosecuted.

If the case was allowed to proceed, the DPP said, it would hinder investigations.

Ordinarily, the AG is not required to give reasons for his conduct because it emanated from his constitutional authority. But, said the DPP, it would only be fair to do so in this case because it was special.

The investigation, he said, was not just in relation to allegations against Mr Khaniri, but to all incidents of campaign violence and intimidation.

Depending on the outcome, the AG was at liberty to revive the case against Mr Khaniri and file others against all those found to have committed an offence, he said.




THIS IS WHAT HAPPENS WHEN DICTATORS HAVE TOO MUCH POWER WITHOUT EFFECTIVE CONTROLS; WHEN THERE IS NO INDEPENDENCE OF THE JUDICIARY.

[kamalet]

LDP's Khaniri was all smiles after the AG's intervention, though the order to Ali to investigate his incitement to violence as well as other cases including Kisumu should temper the smiles!

The current constitution allows Wako to do what he did with impunity....how then does this become an abuse of power? At least he gave his reasons why he entered the Nolle and he is not even required to!!!

[abdulmote]

Kamale bwana! Its pretty annoying you know when someone tries to abuse one's intelligence just as you have dared to do right above.

You out of all the people should know that the cases mentioned above do not at all deserve special treatment by excluding them from ordinary process of the law such as done by the AG. Indeed I have no qualms about the blanket investigations by Ali as suggested by the same, but stopping the above cases midtrack was absolutely not necessary and certainly does not serve any purpose but only one, and that is as implied by honorable miguna!

Second point; For the AG to be constitutionally permited to terminate a case midstream in the trial process does not necessarily entail terminating any case and for any reason, be it personal ones for that matter! Especially so when termination of criminal cases under such permission can be observed to have eminated from or seem to have been influenced by reasons far from the original legal mandate given to such as to be obviously in the public's interests, then an abuse of the said powers become inevitably established! How then can anyone deny such a proposition as can clearly be seen from the above naration? But at least if ever the banans are going to win, this may be the last of Wako's nolle dung! But before you start endorsing your 'yes' vote, may I just point out that you could this fact of affairs as the Draft's 'eighty percent' bit!