MPs barred from defending graft suspects
Siaya Senator James Orengo at a past event. The High Court has barred him from representing former Kenya Ports Authority managing director Dr Daniel Manduku on account of conflict of interest.
Public servants, including MPs, cannot defend graft suspects in court, a judge has ruled.
Justice Erick Ogola issued the judgment while barring Siaya Senator James Orengo from representing former Kenya Ports Authority (KPA) managing director Daniel Manduku in a corruption case.
The ruling was in relation to a petition filed by Director of Public Prosecutions Noordin Haji, who argued that MPs, as state officers, are free to engage in gainful employment but cannot defend public officers charged with graft and economic crimes.
The DPP said doing so is against the spirit of the constitution. Justice Ogola agreed, saying Mr Orengo risked falling victim to conflict of interest.
“What perception does the public get when a person charged with corruption, has as his counsel, a senator, a state officer, driven to court in his official motor vehicle bought for him by the public?” Justice Ogola posed.
He said Mr Manduku could pick any other lawyer and barring Mr Orengo on grounds of public interest overrides his personal interests.
“It has been submitted that by allowing the application, the court will be infringing on (Mr Manduku’s) right to choose an advocate. In Kenya, there are over 10,000 advocates and (he) is at liberty to choose any of them. In any event, a public interest outweighs private interests of an individual,” the judge said.
Conflict of interest
Noting that Mr Orengo is a member of the Senate Justice and Legal Affairs Committee, Justice Ogola pointed out that Mr Manduku may at one time be summoned to appear before it to answer to some of the matters he is being investigated on.
“Should this happen, Senator Orengo will be in attendance. Even if he recuses himself, that alone will not allay the perception of conflict of interest, or put bluntly, the perception that the petitioner has friends in the Senate,” he said.
Immediately after the ruling, Senior Assistant DPP Alexander Muteti said he will apply to have Mr Orengo disqualified from representing Busia governor Sospeter Ojaamong in a different graft case.
Other legislators who have been appearing in court representing state officials are Senators Okong’o Omogeni (Nyamira), Mutula Kilonzo Jnr (Makueni) and Irungu Kang’ata (Murang’a) as well as National Assembly members Peter Kaluma (Homa Bay) and Daniel Maanzo (Makueni). Most of them appeared when Deputy Chief Justice Philomena Mwilu and former Nairobi governor Mike Sonko were charged with corruption.
But Mr Kilonzo Junior and Mr Kang’ata separately criticised the ruling and vowed to continue with their work. Mr Kilonzo Junior said the right to a fair trial that includes entitlement to a lawyer of one’s choice is unfettered under Article 25 of the constitution.
Historical cases
“The reason is simple. A judge who knows the law should treat any suspect before him as innocent,” he said, citing the decision in 2019 by a five-judge bench that dismissed a similar objection in Justice Mwilu’s case.
“Under the principle of stare decisis (a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case), the Mombasa court judge was bound by the finding of the five-judge bench. For now we shall treat the ruling as per incuriam (not following precedent) and continue with our work.”
Mr Kang’ata said there are several rulings in similar cases where the courts have held a contrary opinion.
“I can construe the decision to mean it applies only in criminal matters involving public officials who can be summoned by Parliament, not other civil cases ,” Mr Kang’ata said.
