Only one week to its hearings, Parliamentary Select Committee investigating Dr. Robert Ouko’s murder had guaranteed at least one riveting legal spectacle. Rarely does one witness the rule against double jeopardy play out before your eyes in slow motion.
Testifying before the select committee, the second witness to the inquiry Mr. EIiud William Ndalo alleged that former District Commissioner Jonah Anguka was seen in Dr. Ouko’s compound the night the Foreign Affairs Minister disappeared. Mr Anguka did not want anyone to know he was in the compound, Mr Ndalo told the public hearings in Nairobi two week ago.
The witnesses testimony makes Mr. Anguka one of the last people to see the minister alive. The same witness further testified that he saw Mr. Anguka, together with former Police Commissioner Philip Kilonzo and the former powerful Permanent Secretary Hezekiah Oyugi, burn the late Ouko’s body in an attempt to cover up the murder.
It matters little what is proved
Mr Kilonzo and Mr Oyugi have since died and will never be required to contradict this testimony. In any event even if the claim was proved to be true, the death of the two suspects will have dealt justice for the late Ouko a blow of similar fate to the three. For Jonah Anguka, it matters little to his fate what is proved or not proved. He is forever protected by the rule against double jeopardy.
Some of you may have watched the film Double Jeopardy in which a man fakes his death resulting in his wife being charged with his murder. She is convicted and jailed. While In jail, she learns that her husband is alive and well. Her distress soon becomes a burning urge for vengeance when a fellow inmate tells her all about the double jeopardy rule: No person can be tried twice for the same offence. Nor can a person be tried for a criminal offence that is based on the same facts and circumstances as the previous offence.
Armed with the knowledge, the convicted murderer fights for parole and once out, shoots dead her husband on the streets in broad daylight. The worst prospect for her is a murder charge, for which she was already charged and convicted. She gets away scot free.
The same rule is alive and well under the Constitution of Kenya and is also embedded in the Criminal Procedure Code. Known by the French phrases autrefois convict and autrefois acquit the rule is designed to protect citizens from being harassed using the criminal law system. Without the rule, the state would have the right to haul a suspect in and out of court for the same offence. The effect would be to undermine the rights of innocent people who the state may wish to harass. The citizen is guaranteed to enjoy the final finding of courts of law and the state is obliged to respect the same.
Found him “not guilty” and was acquitted
Although the rule does usually avail itself of guilty people, the law, in its wisdom, would rather let 10 guilty men free than jail one innocent one. And this is where Mr. Jonah Anguka, should the allegations against him be proved, stands to benefit from the law.
Many will remember the spectacular trial in which Mr. Anguka was charged with the infamous murder of Kenya’s third Foreign Affairs minister, who would have been 72 this month. After a long and winding trial, the late Justice Fldahussein Abdalla found him “not guilty” and he was accordingly acquitted.Now it matters not what the Parliamentary Select Committee finds against him. It matters not whether a witness will come and testify that he pulled the trigger. Mr Anguka only needs to utter two dramatic words: “Autrefois acquit”
By Paul Mwangi.