National security at stake, says IG Hilary Mutyambai over court decision
Inspector-General of Police Hilary Mutyambai.
More than 1,500 crime complaints were pending and some 1,700 suspects had been released on bail by Thursday, less than two weeks after the High Court took away the powers of the police to draft charge sheets.
This is according to Inspector General of Police Hilary Mutyambai in an affidavit filed to support an appeal by the state. Mr Mutyambai says the High Court decision has put national security at great risk. The determination of numerous criminal cases has also been thrown into a legal uncertainty, thus undermining the criminal justice system, he stated.
“The stalemate occasioned by the said judgment is a threat to national security in that people who have committed criminal offences cannot be urgently charged in court.”
Mr Mutyambai, Director of Criminal Investigations George Kinoti and the Attorney General are appealing against the judgment by Justice Anthony Mrima that set free businessman Humphrey Kariuki and his partners after finding that the police erred by drafting the charge sheet.
Public interest
In the interim, the appellants want the Court of Appeal to grant a stay of execution of the judgment pending the determination of their appeal. “The case is of immense public interest and affects matters of national security as we are approaching the general election and merits urgent consideration and resolution by this honourable court,” Betty Mwasao, a state counsel in the Office of the Attorney General says in an affidavit.
In the annexures to the documents of appeal, the Inspector General stated that 11 days until June 2 after the court delivered the judgment, Nairobi had 474 criminal complaints that had not been acted upon while 512 suspects had been released on bail.
The Rift Valley region had 227 pending complaints and 300 suspects out on bail, the Central region had 150 complaints and 156 suspects out on bail, and Nyanza had 283 untouched complaints and 302 suspects out on bail.
Western had 73 complaints and 80 suspects, the Eastern region had 197 complaints and 207 suspects, while the North-Eastern region had 32 pending complaints and 36 suspects out on bail.
“The stability of a country is dependent on a robust criminal justice system and this has been compromised by the legal uncertainty brought about by the said judgment,” says Mr Mutyambai.
The Inspector General also pleaded with the Court of Appeal to take judicial notice that the country is in an electioneering period “and the entire security apparatus and the criminal justice system are supposed to be effective.”
“This cannot be achieved with the legal uncertainty occasioned by the said judgment,” he added.
According to the judge, investigations and prosecutions cannot be conducted by the same entity.
Final charges
“It goes without saying, therefore, that the National Police Service cannot come up with the final charges which a suspect is to answer to before court. That is within the purview of the prosecutor. As such, the National Police Service can neither draft any charge sheet nor sign any such charge sheet,” the judge said.
Mr Kariuki had been charged together with directors of Wines of the World (WOW) and African Spirits, including Peter Njenga, Robert Thinji Mureithi, Eric Mulwa Nzomba and Kefa Gakure.
Mr Kariuki and his co-accused faced a charge of possession of uncustomed goods—80 drums of 250 litres each of ethanol valued at Sh7,402,958—without paying tax. They were also charged with omitting from the VAT returns of Africa Spirits Sh2.1 billion and Sh5.9 billion from the excise returns.
Following the judgment, Mr Kinoti directed his officers countrywide to stop recording statements or taking fingerprints of suspects, leaving the Office of the Director of Public Prosecutions in a quandary as he cannot prosecute criminal cases without suspect statements and fingerprints.
Mr Kinoti has directed that because the power to draft a charge sheet or charge suspects has been taken away from the police by the High Court decision that quashed Sh17 billion tax evasion charges against Mr Kariuki and his partners, there is “no statement under inquiry for one can only inquire into a charge.”
