The two judicial officers at the centre of this drama are Judges Said Chitembwe and Aggrey Muchelule both of whom are based at Milimani law courts in Nairobi.
A week ago, detectives arrived at the court building and went to the chambers of the two judges which were then searched. Though there were widespread reports by the media and others that the two judges were arrested, the directorate of criminal investigations (DCI) now claims this never happened.
After the searches, the two went to the offices of the DCI and after a couple of hours were released.
Speaking later, a lawyer acting for the judges said, ‘A search [of chambers] was conducted. Not even a coin was found within the chambers of Muchelule.’
The action taken against the judges has been widely criticised, with many saying it had to be seen against the background of growing tension between the judiciary and the executive, particularly President Uhuru Kenyatta. In the wake of the courts’ decision declaring that the 2017 elections were invalid and that a re-run should be held, the president made his anger with the judiciary very clear, and relations seem to have worsened sharply since then.
On top of that general concern, many pointed to the fact that Judge Muchelule was one of six jurists, named for appointment or promotion by the judicial service commission (JSC), not ‘accepted’ for appointment or promotion by Kenyatta. The president merely cited security concerns, but gave no precise reasons for his decision.
There seems to be widespread agreement from the courts and legal experts, however, that the president is not constitutionally entitled to pick and choose from among the JSC’s nominees, but was obliged to appoint all on the JSC’s list. According to this view, as with any other institution, lawyer or member of the public wanting to give input on the candidates, the president ought to have raised any concerns at the appropriate time – namely, before the JSC hearings with the candidates.
Against this background, some commentators speculate that the ‘arrests’ were part of a strategy to ‘intimidate’ judges, or even to back up claims that Judge Muchelule was somehow ‘suspect’.
Among the immediate steps taken in response to last week’s action was an urgent court application by the Kenya Magistrates and Judges Association, barring detectives from re-arresting the judges (referred to in the papers as the first and second ‘interested parties’).
This week, however, via affidavits filed in connection with this case, a chief inspector said that detectives had ‘recovered’ Ksh5million (as USD50,000) from ‘a lady’ who was at the Muchelule chambers and a further Ksh700,000 (as USD7,000) from Judge Chitembwe (‘the 2nd interested party himself’).
According to the affidavit by chief inspector Felix Banzi, detectives had received complaints related to bribery allegations against the two judges. He claimed that Ksh6million had been fixed as the amount payable, and this sum was to have been delivered to a judge’s home. However, that arrangement was changed and was instead to take place early in the morning of Thursday 22 July at court chambers.
Banzi said they had searched the chambers of both judges and that search certificates were signed ‘by the persons present’.
According to Banzi, the judges were cooperative and after recording statements at the DCI headquarters they were released. ‘At no point were [they] arrested. … (T)he two judges were only interviewed and recorded statements to assist with the investigations,’ Banzi said.
This week, the matter of the court bar preventing the DCI from arresting the two judges, was back in court, and the court extended the original orders, giving the DCI time to file their formal responses.
This is obviously a developing story, but it raises the question of how police, investigating criminal charges against a judge, should approach the matter of searching and arresting a judge.
Just days after the detectives searched the judges’ chambers, Sekou Owino, head of legal and training at Nation Media Group, published a blog entitled, ‘Best practice and guidelines on arresting judicial officers’.
He begins, ‘On Thursday, the police in Kenya took the rare and unprecedented step of going into the High Court precincts in Nairobi where they conducted a search of the judges’ chambers.’
According to Owino, there are several issues at stake, one of which is ‘how should a judge who may have committed an offence be handled?’ … ‘Investigation, questioning and arrest of judicial officers is a troublesome issue the world over,’ he continues.
One horrifying example from not all that long ago concerns Uganda’s then chief justice, Benedicto Kiwanuka. In 1972, he was ‘abducted within the high court premises in Kampala by the police, handcuffed and bundled into a car, never to be seen again.’ In that case, writes Owino, ‘the police were clearly an aggressor within the court buildings.’
Another, more recent, case involves a chief magistrate in India, who complained that the police were uncooperative, failing to serve the summonses, warrants and other notices required by the court. Responding to his complaint, the police invited him to the station, ostensibly to review some documents, but once there he was assaulted, arrested, handcuffed and tied with a rope. Photographs were taken of him during these assaults and sent to the media for publication.
Superior judicial officer
The case made its way to the supreme court of India where, among other things, the judges drew up guidelines for how to handle judicial officers suspected of criminal conduct.
These included that a superior of the person to be arrested must first be informed of the pending action The judicial officer concerned should also not be taken to a police station ‘without the order of a superior judicial officer’.
These and other guidelines for such an occasion are now ‘well established’, writes Owino, and they could be seen in operation in 2001 when an English judge was arrested as part of a corruption investigation.
Having revisited these past examples Owino reaches the conclusion that the procedure ‘at least in countries that share the English common law with Kenya’ is that the judge’s superior judicial officer would first have to become involved and give his or her ‘concurrence’ to an arrest.
His conclusion is important, given that many in Kenya have claimed that, in a case like that of Judges Muchelule and Chitembwe, the police must, in the first instance, go through the JSC.
Whether the police actually informed or consulted the judges’ superior judicial officer is another question altogether, and one that might be answered as the story develops.