By Kevin Motaroki
On August 28, 2018, at the Supreme Court building, Chief Justice David Maraga and DCI George Kinoti engaged in a daylong standoff over the arrest of Deputy Chief Justice Philomena Mwilu. The DCI had gone to arrest Mwilu – the highest ranking judicial officer to be charged in recent times – on corruption charges and abuse of office.
The intrigues of the dramatic arrest that ensued are laid bare in the book ‘60 Days of Independence: Kenya’s Judiciary Through Three Presidential Election Petitions’ – jointly authored by a panel of lawyers, judges and journalists under the auspices of the International Commission of Jurists.
The authors say that from the time Kinoti arrived at the Supreme Court – in the company of Director of Public Prosecutions Noordin Haji – the Chief Justice had stood firm and insisted that the DCI accord the DCJ the respect and decorum her office calls for, and suggested that the DCI issue summons, which he would personally make sure the DCJ honoured. The DCI would have none of it. The DCJ, he insisted, was coming with him, handcuffed, and in the full glare of cameras. But even this was in response to the DCI’s zeal in executing the arrest – over a civil, not criminal matter no less.
The correct protocol, the CJ observed, was for the Judicial Service Commission – which has jurisdiction over matters touching on misconduct of judges and other judicial officers under article 168 of the constitution – to investigate the allegations brought against his deputy, including corruption, abuse of office and tax evasion, in accordance with the powers vested in the Commission.
After a hours-long standoff, the DCI is said to have become impassioned and, against proper reason, resorted to threatening the CJ with “dire consequences” for obstructing his mission.
“Who do you think you are?” he reportedly asked Maraga. It was at this point that the CJ, realising that things might get out of hand, budged and let the DCJ be whisked away.
DCI versus the courts
The DCJ would later, following a ruling in May 2019, escape prosecution, after a five-judge bench faulted the conduct of the Director of Criminal Investigations George Kinoti “for obtaining evidence against her illegally,” in an event that has become synonymous with a silent coup by the courts against the DCI, for mistreating one of their own.
The court questioned how the DCI obtained evidence regarding her bank accounts at Imperial Bank, and ruled that unlawfully obtained evidence using a court order that had no bearing and would not stand on court.
“This we find violated her right to privacy and is irredeemably unlawful as it forms the bedrock of the dispute,” the judges ruled.
The judges also ruled that for the charge of abuse of office Mwilu faced the DCI should have notified Judicial Service Commission at the first instance. “To allow such misconduct against a judicial officer without initial recourse to the JSC would expose judges or judicial officers to harassment by the executive and police.”
The DCI-Mwilu saga sticks out like a sore thumb in what would otherwise have been a straightforward matter of justice taking its course – if the allegations would have been eventually proven – had the DCI not resorted to cheapening the office of Chief Justice. While it may not be openly said, it is plausible that the Judiciary may not soon forgive – or ever forget – what happened that day.
Relationship with DPP
That saga has also led observers to paint the real motive of the initiative launched by the President in 2018, spearheaded by Haji and Kinoti, as being politically motivated – to get back at the Judiciary for nullifying Uhuru’s election in 2017, and to get back at political detractors.
The DPP, under normal circumstances, is meant to give orders to the Inspector-General of Police, who should then cascade them down to relevant officers, depending on the nature of the crimes. But the hitherto blossoming bromance between the DPP and DCI has been such that the top prosecutor has elected to deal directly with the DCI, who has often made swift arrests at the request of the DPP.
Their buttery working relationship, they promised, was the boost the war on graft and impunity needed. Besides, President Uhuru Kenyatta had personally tapped the two to spearhead his anti-corruption crusade, and it seemed given that the two offices should work as closely as they have.
A healthy working relationship between the DCI and DPP has been the force behind the reenergised anti-corruption purge that has seen many high-profile arrests, although no conviction has been forthcoming. It is a scenario that some blame for hurried, harried investigations. Their predecessors, Ndegwa Muhoro and Keriako Tobiko – the latter is now Environment CS –literally could not see eye to eye, a situation that was blamed for the slow pace of dealing with high-profile criminals.
At a time when their – Haji and Kinoti’s – luck was on the ascendancy, ‘Reuters’, in a 2019 article, just when they had successfully built a case against then Treasury CS Henry Rotich, attributed their success to an “unlikely friendship forged while working together in the field.”
“Prosecutors and investigators never worked together, but since me and Kinoti came into office that has changed,” Haji told ‘Reuters’. “We do have a personal relationship as friends. We are able to sit down and agree without having turf wars.”
But an epic turf war came to the fore recently, in March, when officers from the DPP and those from the DCI clashed in court over the status of an ongoing investigations against Kenya Ports Authority managing director Daniel Manduku, who is accused of abuse of office and tender fraud.
Whereas DCI officers presented Manduku in court, prosecutors said they the DPP was yet to approve charges against him. His name was not listed in the charge sheet produced by the investigating officer who appeared for the DCI in court, and the surprised magistrate, Kenneth Cheruiyot, had to let him go.
When asked to comment on claims that they are no longer reading from the same script in the prosecution of high profile cases, as that embarrassing clash from the courts demonstrated, the two declined to comment.
Sources in the criminal justice system say the bromance between the two seems to have faded, with insiders attributing the turn of events to a blame game between their offices. Indeed, the two no longer appear for press conferences together, save from a face-saving presser they gave days after their spectacular falling out.
While the office of the DPP accuses Kinoti of conducting poor investigations before making arrests, sometimes leading to acquittal of suspects in court, the Directorate of Criminal Investigations blames Haji for failing to robustly prosecute cases in court.