What is the use of having a constitution if it is not honored and respected by the people…The courts of justice must reflect the opinion of the people. – Chief Justice Madan in Stanley Munga Githunguri vs The Republic.

It is said among lawyers and jurists that it is better to let 10 guilty men to walk free than one innocent man to go to jail. It is considered sacrilege to the spirit of justice for the law to cause any harm to one who abode to it. It matters little therefore what the effect of the judgment of the constitutional court regarding Prof George Saitoti’s will be if he is an innocent man. But because of the gravity of the cost to the public that will follow the Saitoti judgment, it is imperative that the decision be carefully examined to ensure that it is sound and unimpeachable. The background and circumstances of the decision are such that we cannot give the judges much latitude in their customary right to err in judgment.

It is my opinion that the judgment of the Constitutional Court delivered on July 31, 2006 sets the most dangerous legal precedent  in Kenya’s modern history. It is in my view comparable in legal outrage only to the judgment of Chief Justice C.H.E Miller in the High Court Miscellaneous Cause No. 551 of 1988(Gibson Kamau Kuria Versus The Republic). Justice Miller declared that no person could appeal to the High Court for the protection of their human rights because the Chief Justice himself had not made the rules on the procedure to be used in making an application to court.

Human Rights Abuse

The judgment of Justice Miller became a tool by which government escaped any judicial questions regarding its abuse of human rights. Similarly, the judgment of the Constitutional Court on Prof Saitoti’s matter will enable government ministers to use Parliament to protect themselves from criminal prosecution for crimes they commit while in office.

The core of the decision to prohibit the prosecution was the resolution that had been made by Parliament in 1995 in respect of Prof Saitoti’s decision to give 15 per cent ex-gratia payment to Goldenberg International Limited. The Public Accounts Committee report of that year stated: “After evaluating all the evidence available to the committee, it was noted that the Government followed normal procedures of approval in granting the request by Goldenberg International Limited.”

The Constitutional Court used this report to find that: Since Parliament had considered this matter, the courts could not reconsider it without breaching the doctrine of separation of powers. To subject Prof Saitoti to another trail, after he had been grilled by Parliament, would amount to double jeopardy. Since Parliament had sanctioned Prof Saitoti’s decision, he now enjoyed immunity for his actions under the National Assembly (Powers and Privileges) Act.

All these findings are a legal fallacy that threatens the concept of constitutional government in Kenya. Indeed, these findings are likely to become the most valuable weapons in the hands of any government that decides to execute a similar grand corruption scheme like the Goldenberg affair.

Would the trial of Prof Saitoti breach the doctrine of separation of powers?

The work of Parliament is to make laws. That of the Judiciary is to make legal decisions on facts based on those laws. These two powers are exclusive. Parliament has no business making judicial decisions and the Judiciary has no business making law. It was a legal fallacy for the court to say that “any finding which purports to encroach on a decision of Parliament which is made within its constitutional territory or mandate would be unconstitutional as the courts and other judicial bodies should be in the forefront of avoiding any possible conflicts in all their undertakings.”

The body which did the encroachment was Parliament. There is nothing in our Constitution which authorizes Parliament to make A JUDICIAL DECISION. Section 60(1) of our Constitution says: “There shall be a High Court which shall be a superior court of record, and which shall have unlimited original jurisdiction in civil and criminal matters…” Unlimited original jurisdiction means the total exclusion of any other person or authority, Parliament included. The Constitutional Court should have asserted the independence of the judiciary and told Parliament that it had no right to make a judicial decision. Only courts can do that.

It was the Bosire Commission, a judicial body of less stature, rather than the Constitutional Court which attempted to do so by saying: “In our view Parliament does not have the power under the law to pardon illegality.” The ultimate result is that any Cabinet Minister who wishes to castrate the courts of law in respect of possible criminal proceedings against him or her should quickly arrange to be cleared by Parliament.

But the fundamental question is, if Parliament can make a decision on the legality of one’s conduct, then why do we have a judiciary? Where is the separation of powers? The Constitutional Court in its judgment did not separate the powers. It surrendered the powers.

Can the courts petition the decision made by Parliament regarding Prof Saitoti’s conduct?

A fundamental legal fallacy that the Constitutional Court proceeded on is that Parliament could have regularized Prof Saitoti’s conduct in ways other than through an Act 6 of Parliament. The Bosire Commission had considered this question and it was their view that if Parliament had intended to make legal what Prof Saitoti had done, the only way to do so was to pass an Act of Parliament and to make it retrospective.

The Constitutional Court, however, instead decided to extend the constitutional powers of Parliament. Section 46 (1) of our Constitution says: “Subject to this Constitution, Legislative Power of Parliament shall be exercisable by Bills passed by the National Assembly.” The Constitution then gives a very elaborate procedure for passing a bill, which includes publishing it for the public to see, debating it in Parliament, voting on it, obtaining the assent of the President, and again publishing it.

Section 123 (2) of the Constitution then says: “Except where the context otherwise requires, any powers conferred upon Parliament by this Constitution to establish, provide for or prescribe any matter or thing shall be exercisable by Act of Parliament.” But the constitutional Court says: “It is not every policy decision of Parliament that ends up an Act of Parliament and Parliament must under the doctrine of Separation of Powers have the latitude to act as a watchdog body to the Executive without necessarily legislating as such.”

This means that a decision by Parliament that what Prof Saitoti did was legal, despite the fact that the decision is not reached in accordance with the clear mandates of our Constitution, and indeed in contravention of the Constitution, will be considered by the court as constitutional and bidding. Again, the body that appears to have been fighting to uphold sanctity of our Constitution is the Bosire Commission, rather that the Constitutional Court.

Would a criminal trial of Prof Saitoti amount to double jeopardy?

Section 77(5) of our Constitution says: “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall be tried for that offence” Now underline the words “tried”, “competent court”, “criminal offence” and “acquitted” and let’s look at the findings of the Constitutional Court.

“The applicant is a Member of Parliament who in making his contribution in Parliament defended himself on the floor of the August House. Historically Parliaments were in certain jurisdictions called the High Court of Parliament in that as regards matters within their jurisdiction they were regarded as final and could not be reopened elsewhere. There is a semblance of double jeopardy.”

The Constitutional Court went as far as looking at the Hansard report and noting that Prof Saitoti was “subjected to questions and points of order.” It may be true that historically there could have been High Courts of Parliament but the word to underline here is “historically”. That means before the Doctrine of Separation of Powers. It doesn’t matter whether Parliament grilled, cross-examined or even purported to try Prof Saitoti. Even if he had been subjected to the rack, ho would still have no protection under Section 77(5) of our Constitution.

Does Prof Saitoti enjoy immunity under the National Assembly Powers & Privileges Act?

This Act is meant to define the powers, privileges and immunities of Members of Parliament and to “secure freedom of speech in the National Assembly’. Its objective is that an MP is not held liable for his words or actions when he is discharging his duties as a member of the assembly. Section 4 says, “No civil or criminal proceedings shall be instituted against any member for words spoken before, or written in a report to the Assembly or committee, or by reason of any matter or thing brought by him therein by petition, bill, resolution, and motion or otherwise.”

Definition of a member

I have made the underlining to emphasize the issues to be considered. Firstly, immunity only extends to a “member”. The definition of a member given by the Act is “a member of the National Assembly”. So to decide whether Prof Saitoti has any immunity under Section 4, we should ask:

Are the criminal proceedings being instituted against him as a member of the National Assembly or as a Cabinet minister?

Is he being prosecuted for any words he spoke or for a written report he gave the National Assembly?

Is he being prosecuted by reason of any matter or thing brought by him to the National Assembly by petition, bill, resolution, motion or otherwise?

Section 4 is not meant to give immunity to Cabinet ministers for their actions as members of the executive. The section is limited to “any member”, which means strictly in his capacity as a member of the National Assembly. Section 31 of our Constitution says that the National Assembly shall consist of elected members, nominated members, and ex-official members. The National Assembly does not consist of members in their capacities as Cabinet ministers. So, in my interpretation, Prof Saitoti has no protection under Section 4 of the Act for any act he did or words he spoke in his capacity as a Cabinet minister.

Section 12 of the Act then says that ‘No proceedings or decision of the Assembly or the Committee of Privileges acting in accordance with the Act shall be questioned in any court.” As stated earlier, the decision in question must be one that is in the competence of the Assembly. This section could not have been meant to cover the Assembly to do even that which is unconstitutional. The Constitution is supreme and any decision of the Assembly that contravenes the Constitution is null and void. This section cannot be used to say that Prof Saitoti’s supposed immunity given by Parliament cannot be questioned. If that immunity is unconstitutional, then this Act cannot give it any protection.

It was maybe in recognition of this that the Constitutional Court went ahead to give the Act a quasi-constitutional standing by saying that this particular Act of Parliament has “Constitutional underpinnings”. In their argument, since Section 57 of the Constitution says that Parliament may provide for the power, privileges and immunities of the National Assembly, its committee and its members, then this Act must be seen as if it were an extension of the Constitution.

Constitutional underpinnings

But the Constitutional court ignores two things. One, that all Acts of Parliament, whatever their nature, have “constitutional underpinnings”. All laws are made under the direct authority of our Constitution. The National Assembly Power & Privileges Act is no more powerful or significant than any other Act. It is not superior to any other laws.

Secondly, Section 3 of the Constitution says that any law that is inconsistent with the Constitution shall be void. So, in so far as this Act purports to give the National Assembly power to exercise judicial functions, and to make such judicial decisions unquestionable in a court of law, the Act is null and void to this extent.

The other part of their story is whether the Attorney-General ever promised Prof George Saitoti that he shall not prosecute him and whether the time taken to unravel Goldenberg scam is such that it offends his rights. For the record, I wish to say “NO” to both questions. But that is a discussion for another day. Suffice it to say that if the Constitutional Court is correct, then corruption will always win. The very nature of the grand corruption is such that, usually, regimes have to change for there to be action. This can often take a long time, and inaction can be secured by those in power. The Anglo-Leasing saga is a perfect case in point.

One mistake that the Constitutional Court did was to try to equate the position of Prof Saitoti’s case to that of Stanley Munga Githunguri in 1985. But Githunguri’s case has no comparison. His case had been investigated and the Attorney-General had informed him that there was no offence, that the file had been closed and no prosecution would ensue. He WAS GIVEN BACK HIS Evidence to carry away.

The complainant also wrote to Githunguri and told him that he would not be prosecuted. Another Attorney-General came and he retained situation as his predecessor. Yet another Attorney-General came and, answering a question in Parliament, in Githunguri’s presence at the public gallery, he said that Githunguri would not be prosecuted.

Grave error

Mr. Matthew Guy Muli then became the Attorney-General. He arrested Githunguri and took him to the Magistrate’s Court and charged him with the very same offence. In the nine years since the commission of the alleged offence, tho8gh the Constitutional Court makes a a grave error of fact and incorrectly says four years. No new investigation had been done, and no judicial commission of inquiry had been conducted. And the offence was the possession of some negligible amounts of foreign exchange. There is simply no comparison with Prof Saitoti’s case.

The challenge to the Judiciary in such situations is best captured by the words of the founding President of Tanzania, Mwalimu Julius Nyerere in 1965 when he said: “The fact that judges interpret the law makes it vital that they should be part of the society that is governed by the law. Their interpretation must be made in the light of the assumptions and aspirations of the society in which they live. Otherwise their interpretations may appear ridiculous to that society, and may lead to the whole concept of law being held in contempt by the people.”