“You can’t charge me, I’m immune”: dismissed cabinet secretary

23 February 2019 · Carmel Rickard

ANY judgment that concerns a country’s anti-corruption commission, is usually worth reading. But when it involves a case brought against the commission by a dismissed former cabinet minister now in the spotlight for abuse of office, it becomes just too tantalizing to miss – especially when the former top official claims he is untouchable.

IN this new decision from Kenya, former cabinet secretary for transport and infrastructure, Michael Kamau, had asked the court of appeal to find nine individuals in contempt of court for alleged willful disobedience of a judgment issued in July last year by that same court.

The nine included a number of luminaries, among them a retired archbishop, the director of public prosecutions, the head of the ethics and anti-corruption commission and the inspector general of the national police.

This was always going to be a significant story. If these anti-corruption leaders were found in contempt of court, it was a troubling development. Kenya has history of government figures ignoring court orders; for that illness to be spreading to the likes of the anti-corruption commission would be really bad news.

The facts go back to June 2015 when former cabinet secretary Kamau – dismissed for alleged abuse of office – was charged in the magistrate’s court under the anti-corruption and economic crimes law. At the time the charges were brought the ethics and anti-corruption commission was not at its full complement since all three commissioners had resigned. Kamau spotted this gap and challenged his prosecution in the high court, saying the commission was not properly constituted. He also argued that the prosecution authorities were not acting independently: they were acting “at the behest of the President …, who during the (March 2015) State of the Nation address in Parliament, had directed the (commission) to complete its investigations into allegations of corruption” by specified individuals, including Kamau, within 90 days. The high court rejected Kamau’s challenge on both grounds, and he then asked the court of appeal to reconsider his application for the charges against him to be thrown out.

In July 2017 the court of appeal found the commission was not properly constituted when it recommended that the director of public prosecutions should institute charges. And it found that the President’s directive to the commission “would reasonably be perceived as interference with its independence.”

Now comes the crucial bit, the part of the appeal judgment that has led to the latest court spat between the Kamau and the commission. The appeal judges said Kamau’s appeal had succeeded on the “technical grounds” that the commission was not properly constituted when it “completed the investigations and forwarded its report and recommendations” to the prosecuting authorities. The judges added, “From the foregoing anti-constitutional edicts, the parties are at liberty to proceed as they deem necessary on the basis of a properly constituted (commission) and within the dictates of the constitution and the law.”

Kamau claimed this meant that any prosecution of himself was now barred; for the other authorities, however, it meant that a properly constituted commission, acting in accordance with the constitution, could bring fresh charges against him.

Who was correct?

Following the court of appeal’s 2017 decision the chief magistrate’s court discharged Kamau, but earlier this year the embattled former top official was charged once again. According to Kamau, all those involved in reinstating the charges against him are in contempt of court.

Kamau first asked the high court to find that the appeal court’s 2017 decision “entitled him to an acquittal rather than a discharge” and that the order of the chief magistrate’s court should be amended to reflect an acquittal and not a discharge. When the high court turned him down on those issues Kamau was soon back in the court of appeal seeking an injunction to stop the renewed prosecution. He also filed an application for the commission and others to be found in contempt of court for bringing renewed charges against him.

The court said it could only find a party in contempt of court if it were satisfied that the party was aware of a court order and willfully and deliberately disobeyed that order

Clearly the parties disagreed about how to interpret the 2017 decision, said the judges. That dispute was a live issue before the court of appeal and it would not be appropriate for the court in the contempt matter to pre-empt that matter. It would be “remiss” if the courts were later to find that the 2017 judgment did permit Kamau to be re-charged, but the authorities had meanwhile already been committed for contempt of court for doing exactly that.

The three appeal judges thus dismissed the application, finding there was “no proof to the required standard” that the authorities had “willfully and deliberately violated” the 2017 judgment.

All eyes will now turn to Kamau’s two pending appeals, one against the high court’s finding that he did not interpret the earlier judgment correctly and the other seeking to stop the second prosecution now pending against him. In Kenya’s fight against corruption on the one hand, and against government’s ignoring of key constitutional principles on the other, this is a fight worth watching.

Michael Sistu Mwaura Kamau v Director of Public Prosecutions & another [2018] eKLR

Carmel Rickard

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