Autocratic Legalism? The intended prosecution of Deputy Chief Justice Philomena Mwilu in context

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By Walter Khobe

Javier Corrales first used the “autocratic legalism” phrase to describe Hugo Chávez’s rule in Venezuela. Corrales identified autocratic legalism with the “use, abuse and non-use . . . of law” to describe what Chávez did to consolidate political power and sideline competitors. Chávez used the law by pushing the parliament to pass new laws giving him new powers, abused the law by deliberately changing the interpretation of law on the books to suit his goals, and non-used the law by failing to enforce law that stood in his way. (See Javier Corrales, ‘Autocratic Legalism in Venezuela’(2015) 26(2) Journal of Democracy pp. 37-51).On her part, Kim Lane Scheppele, in ‘Autocratic Legalism’ (2018) 85(2) University of Chicago Law Review pp. 545-583 uses the phrase “autocratic legalism” in a manner compatible with Corrales’s formulation, because she also highlights the extraordinary attention that the new autocrats pay to law as a tool of power consolidation, but she differs from him in emphasizing the deliberate creation of new law as a way of consolidating political power.

In the Kenyan context, Oki Ooko Ombaka in ‘Political Justice in Kenya: Prolegomena to an Inquiry into the Use of Legal Procedures for Political Purposes in Post-Kenyatta Era’(1982) 15(4) Journal of Law and Politics in Africa, Asia and Latin Americapp. 393-420demonstrates how the Moi regime, like other authoritarian regimes, used the law and judicial devices to consolidate its power and to keep political opposition in check. As Ombaka demonstrates, the use of law to repress political opponents goes against the tenets of a liberal democracy. (For more on this trend see: Shadrack B.O. Gutto ‘Constitutional Law and Politics in Kenya Since Independence: A Study in Class and Power in a Neo-Colonial State in Africa’ (1987) 5 Zimbabwe Law Review pp. 142-171)

The question of whether Kenya has entered the era of “autocratic legalism” has arisen recently in Kenya in the context of the arrest of the Deputy Chief Justice Philomena MbeteMwilu. On 28th August 2018, the Director of Public Prosecutions, Mr. Noordin Haji authorized the prosecution of the Deputy Chief Justice Philomena MbeteMwilu for allegations related to credit facilities/transactions between Imperial Bank Limited (In Receivership) and the Deputy Chief Justice, and an alleged failure to pay stamp duty on four properties purchased by the Deputy Chief Justice between 2014-2016. The advocate who acted for the Deputy Chief Justice in the said transactions and paid stamp duty as a condition for the registration of the transfers, Mr. Stanley MuluviKiima, was also arrested with the Deputy Chief Justice.

While the prosecution of any public officer including a judicial officer would be welcome, the attempted prosecution of the Deputy Chief Justice has brought in sharp debates as to the motive and timing behind the arrests.

On 1st September 2018, the Supreme Court by a majority judgment (the majority included Justice Mwilu) rendered the landmark decision in Raila Odinga (2017) Petition, annulling the Presidential elections of 8th August 2017. Following this decision, President Uhuru Kenyatta made public statements issuing both explicit and implicit threats against the majority judges who annulled his election. As quoted, the President threatened that: “we shall revisit this thing. We clearly have a problem,”

Since the determination by the Majority in Raila Odinga (2017) and the threat issued by the President, there has been a series of events against the judiciary and the judges who constituted the majority that point to the deployment of “autocratic legalism” against the independence of the judiciary. On 14th September 2017, Nyeri Town Member of Parliament NgunjiriWambugu lodged a petition to the Judicial Service Commission (JSC) for the removal of the Chief Justice. This was followed on 18th September 2017 with another petition, this time by Derrick Malika Ngumu for the removal of Justices Mwilu and Lenaola. On 24th October 2017, Justice Mwilu’s driver was shot on the eve of a petition to suspend the hearing of an application to suspend the then imminent repeat presidential elections. On 26th February 2018, Adrian KamothoNjenga petitioned parliament to disband the Judicial Service Commission. This forms the context within which the arrest and prosecution of the Deputy Chief Justice ought to be viewed. (See generally, Walter Khobe ‘The State of Judicial Independence in Kenya – Reflections from the 2017 Presidential Elections’ in James Gondi (ed.) Paper Series: Reflections on the 2017 Elections in Kenya (ICJ-Kenya, 2018) Chapter one)

In interrogating the constitutional foundations of the exercise of the prosecutorial discretion to prosecute the Deputy Chief Justice, this commentary critiques the prosecutorial discretion as exercised in the Philomena Mwilu affair under three limbs as elaborated hereinafter.

The principle in Hon. Justice HyeladziraAjiyaNganjiwa v. Federal Republic of Nigeria(2017) LPELR-43391

The Court of Appeal of Nigeria in Hon. Justice HyeladziraAjiyaNganjiwa v. Federal Republic of Nigeria (2017) LPELR-43391laid a rule of principle that:

“The National Judicial Council (NJC) is created by the Constitution to solely regulate the affairs of the appointed judicial officers without interference from any authority. It is only and only when, the NJC has given verdict and handed over such judicial officer (removing his toga of judicial powers) to the prosecuting authority that he may then be investigated and prosecuted by the appropriate security agencies”.


This dicta is to the effect that a serving judicial officer cannot be arraigned for criminal prosecution by the prosecuting agency of the government unless and until such a judicial officer has first been subjected to the disciplinary jurisdiction of the Judicial Service Commission. Thusthere is a condition precedent of subjecting a judicial officer to the disciplinary jurisdiction of the JSC before such an officer can be arraigned in court for criminal prosecution. This is necessary to maintain respect and sanctity of the rule of law. This follows from a purposive construction of the need to ensure that the executive and the legislature do not interfere with independence of the judiciary and the JSC.

The Principle in the Jared Benson Kangwana case

 In Jared Benson Kangwana vs. Attorney General Nairobi High Court Misc. Application No. 446 of 1995 (unreported) Khamoni, J noted that:

The essence of abuse as stated in the case of Spautz v Williams…is that: ‘the proceedings complained of were (instigated and) instituted and/or maintained for a purpose other than that for which they were properly designed or exist or to achieve for the person (instigating), instituting them some collateral advantage beyond that which the law offers, or to exert pressure to effect an object not within the scope of the process…whether there are circumstances which will make the proceedings an abuse of the process of the court. Acts of such abuse are not restricted to what the prosecution or the State does but extend to acts of any party” and the prosecution or the Respondent should not be telling this court not to rely on anything done by the victim to decide whether there is an abuse…The court should ask whether its process is being fairly invoked…The functions of abuse of the process of the court are not limited to what the prosecution or the State or the court does. They extend to what any other interested party, like the person aggrieved, does and case authorities have shown that it is not the events at the trial that necessarily give rise to the granting of a prohibition on the ground of abuse of the process of the court. They can be events outside the court. They can be events not done by the State but done by the person aggrieved who succeeds in getting the unsuspecting State or Public Prosecutor to prosecute the Accused person.”

In other words the principle in the KangwanaCase is that where a belated decision to prefer charges against an accused person is actuated by extraneous and collateral considerations and factors such as the pressure arising from a purely contractual dispute between parties, then such collateral factors is one of the grounds for prohibiting a prosecution. This principle was reiterated in George Joshua Okungu and Another vs. Chief Magistrate Court Anti Corruption Courtat Nairobi and Another(2014) eKLR, andVincent KibiegoSaina vs. The Attorney GeneralH.C Misc Appl. 839 and 1088/99.

With respect to the intended prosecution of Deputy Chief Justice Philomena Mwilu , there is an argument that the prosecution with respect to the contractual disputes between the Deputy Chief Justice and the Imperial Bank should not form part of a criminal case. Thus the charges related to the said transactions amount to an abuse of the court process and are oppressive. One can argue that the criminal justice system is being used for ulterior motive and to achieve extraneous purposes. This is so because at face value, the criminal cause is not to pursue public interest but to advance a civil claim/cause.

The principle in Republic v Kenya Revenue Authority Ex -parte Tom Odhiambo Ojienda SC t/a Prof. Tom Ojienda& Associates

InRepublic v Kenya Revenue Authority Ex -parte Tom Odhiambo Ojienda SC t/a Prof. Tom Ojienda& Associates[2018] eKLR,it was held by the High Court thus with respect to the issuance of a Tax Compliance Certificate:

In other words Tax Compliance Certificate is a rebuttable evidence that a person is tax compliant and to my mind the burden of rebutting that presumption falls on the Tax Authority. In other words the issuance of a Tax Compliance Certificate creates a legitimate expectation on the part of the tax payer that the same will not be withdrawn without him being afforded an opportunity to address the intended decision to withdraw the same.”

It has been argued that prior to the appointment of the Deputy Chief Justice, she obtained Tax Clearance Certificates from the Kenya Revenue Authority as a required document to be submitted to the JSC. To the extent that she was issued with these documents, there is a prima facie case that the ongoing criminal allegations against her are unreasonable and are actuated by extraneous purposes.

Conclusion

Sir Jeffrey Jowell in ‘The Public Prosecutor and the Rule of Law in Anglophone Africa’ in Charles Fombad (ed.) The Separation of Powers in African Constitutionalism (Oxford University Press, 2016) 345 points out that there is consensus internationally that the decision to initiate prosecution should not be influenced, or seen to be influenced, by partisan considerations. This is so because such selective enforcement of the law is seen to violate the rule of law. It is hoped that in the light of the possibility of “autocratic legalism” as discussed in the context of the intended prosecution of Deputy Chief Justice Philomena Mwilu ,that the Director of Public Prosecutions is acting strictly within the confines of public interest and has not been roped into Uhuru Kenyatta’s infamous “revisiting” agenda.