The Attorney General has openly and expressly indicated his personal bias against me. A manifestation of how real the prejudice emanating from his conflict of interest is. Of my own knowledge, I am aware that the Attorney General has been lobbying certain commissioners of this commission and arranging for meetings where my intended removal from office has been discussed.
BY SAM ALFAN.
Embattled Deputy Chief Justice Philomena Mbete Mwilu has filed an application seeking the Attorney General to recuse himself from hearing the case against her before the Judicial Service Commission.
She claims AG Paul Kihara is plotting her removal from supreme court.
Mwilu wants Attorney General Paul Kihara Kariuki to recuse himself from sitting or in any manner participating in the proceedings in the hearing of the petition against her.
DCJ claims that the attorney general has openly and expressly indicated his personal bias against the Applicant, a manifestation of how real the prejudice emanating from his conflict of interest.
The supreme court judge says that the AG has sat through and actively participated in proceedings relating to this petition at the JSC.
“I am therefore genuinely apprehensive that his participation in the petition is only intended to ensure that his pre-determined outcome is arrived at and i say so because the Attorney General, is the principal legal advisor to the Government and the Executive in particular, which expressly communicated its dissatisfaction with the manner of the Supreme Court’s handling of Presidential Election Petition No 1 of 2017, which I honestly believe is the reason behind my woes,”adds Mwilu.
She believes that the AG Kihara is conflicted in the instant petition before the commission and is therefore, precluded from participating in the deliberations in respect to the petition herein by virtue of Article 75 of the Constitution of Kenya, Section 44 of the Judicial Service Act No 1 of 2011 and Section 16 of the Leadership and Integrity Act.
She said she knows of three such meetings separately attended by influential state operatives, who implored certain commissioners to fast track the process of her removal from office. This of itself, is a testament of the predisposition of the Attorney General and a section of the commission on a biased and pre-determined outcome against her.
Mwilu says that the relationship between her and AG has never been cordial, a matter well known between the two and known to colleagues that they have both worked together. Both Mwilu and Kihara served at the High Court and the Court of Appeal where the AG presided as the president until he was appointed as AG.
“My apprehension about his conduct in this matter is therefore real, reasonable and proximate. I am therefore appealing to the personal conscience of the Attorney General to recuse himself and in any event, it is the requirement of the law,” Mwilu adds.
“The Attorney General is established under Article 156 of the Constitution of Kenya and is the principal legal adviser to the Government. His duties include inter alia representing the National Government in legal proceedings, a power exercised in person or by subordinates.”Mwilu Say’s.
She claims that the attorney General is a commissioner of the Judicial Service Commission by virtue of Article 171(2)(e) of the Constitution of Kenya. The holder of that office sits in meetings of the commission and participates in deliberations and making of decisions by the commission.
Mwilu avers that the petition before the commission was preceded by two legal proceedings in which the Attorney General was an active party and participant.
Whereas the Attorney General does not have any role in the initiation and continuation of criminal prosecution under the Constitution or statute, he is the chairperson of the Multi-Agency Taskforce Team (MATT): a team that was set up by a presidential directive issued on November, 2015 by the President of the Republic of Kenya. MATT was involved in the investigations and intended prosecution of the Applicant in Anticorruption Criminal Case No 38 of 2018, Republic v Hon Philomena Mbete Mwilu & Stanley Muluvi Kiima.
The supreme court judge argue that AG chaired the meeting of MATT that recommended the appointment of a foreign counsel to wit Professor Khawar Qureshi (QC) to undertake the prosecution of the said Anti-corruption Criminal Case No 38 of 2018.
“Am aware that the Attorney General appointed a foreign counsel to wit Professor Khawar Qureshi (QC) to undertake my prosecution in the said Anti-corruption Criminal Case No 38 of 2018 and in the defence of the Petition I filed to challenge the same. Exhibited herewith at page 24 to 28 and collectively marked as PMM-2 is a bundle containing the Gazette Notice and appointment signed by the Attorney General.”Mwilu said.
She further argued that the AG was a respondent in Petition No 295 of 2018, Hon Philomena Mbete Mwilu v DPP & 4 others, filed by the Applicant herein to challenge the institution of Anti-corruption Criminal Case No 38 of 2018. The Attorney General was opposed to the said petition.
“The Attorney General is a Respondent in Civil Appeal No 298 of 2019 filed by the Applicant and Civil Appeal No 314 of 2019 filed by the Director of Public Prosecutions, all pending before the Court of Appeal and arising out of the Judgement made on 31 st May, 2019 in Petition No 295 of 2018. The Attorney General supports Civil Appeal No 314 of 2019 filed by the DPP and opposes Civil Appeal No 298 of 2019 filed by the Applicant.” She added.
Mwilu argued that as a matter of law, the Attorney General does not sit in proceedings before the commission, if the same relates to legal proceedings before a court of law in which he is a party or participant and especially where he takes an adverse position in the said proceedings against the party under inquiry before the commission.
The Attorney General is conflicted in the petition before the commission and is therefore, precluded from participating in the deliberations in respect of the petition herein by virtue of Article 75 of the Constitution of Kenya, Section 44 of the Judicial Service Act No 1 of 2011 and Section 16 of the Leadership and Integrity Act.
