• Father and son say they are private persons and cannot be charged with offences under the EACC Act
• Say anti-corruption commission is irregularly constituted and should be disbanded
Image: FILE
Directors of a company at the centre of a Sh109 million land compensation saga involving NLC senior officials want charges against them dropped.
In a case filed in Mombasa, the Directors of Tornado Carriers Limited challenge the legality of the Ethics and Anti-Corruption Commission, saying it was not constituted as per the law and want it disbanded.
Shakir Ahmed Khan and Nazir Ahmed Matabhkan have sued many state agencies including the Director of Public Prosecutions, Directorate of Criminal Investigations, all magistrates and anti-corruption courts, Kenya National Highways Authority, National Land Commission and the Attorney General.
The duo is yet to be charged over fraud and other offences that are facing former NLC chair Mohammed Swazuri and other officials.
Through their lawyer Kinywa Kamunde, the two, father and son, say a statement by the DPP on April 16 listing them among 24 people to be prosecuted over irregular compensation was in bad taste since they are private persons and cannot be charged with offences under the EACC Act.
About 13 suspects are still at large and haven’t been charged over various offences including conspiracy to commit an economic crime, abuse of office, financial misconduct, unlawful acquisition of public property, fraudulent acquisition, dealing with suspect property and money laundering.
In a petition, the lawyer argues that Article 79 of the Constitution requires Parliament to enact legislation to establish an independent EACC for purposes of ensuring compliance with and enforcement of the provisions of Chapter 6 of the Constitution.
“No independent Ethics and Anti-Corruption Commission has been established to date under that article. The entire Chapter 6 of the Constitution concerns state and public officers. The petitioners are not state or public officers and are not therefore subject to any independent commission that may be established under Article 79 which article falls under Chapter 6,” he argues.
The lawyer say that until Parliament establishes an independent EACC, the commission will have no jurisdiction over private citizens because Article 79 limits jurisdiction of the commission to state officers.
He argues that Parliament revised the EACC Act of 2011 by amending the word “commission”, thus denied the agency independence, adding that the definition is false in the sense that no legislation has been enacted under Article 79 of the Constitution and no independent commission has been established under that Article.
“The EACC is not such a commission. It is a body or entity that is subject to control and direction of other forces. It is therefore an amorphous body, club or enterprise running around the country terrorizing private citizens,” he added.
Kinywa said the EACC has no authority or jurisdiction to discharge any constitutional or statutory function and cannot wield or exercise sovereign power of the people.
When the state wishes to acquire private land for public purposes it must promptly pay full and just compensation to the owner, the petition says.
"If the state acquires land, does not make full and prompt compensation, it violates that article. When it makes partial compensation for that land and subsequently freezes that payment and seeks to arrest and charge the owner while keeping the land it aggravates that violation.”
Tornado Carriers were awarded Sh75million by NLC on September 18, 2017 but paid Sh55million, which has since been frozen by the EACC.
The directors said none of the offences are applicable to them and none can be proved or admitted by any court against them without abuse of constitutional and statutory power on the part of the EACC, DPP, DCI, courts and the AG’s office.
“Private citizens, not being persons subject to Chapter 6 of the Constitution cannot be arrested, charged together and prosecuted together with state and public officers” the court papers say.
He lawyer asked the court to protect the directors since they are law abiding citizens and their arrest would be a violation of the Constitution under a law that is inconsistent with the Constitution.
The court heard that Nazir, who suffered a stroke 15 years ago and another stroke 10 years ago and on account of his age, will have his health and life severely threatened if he is arrested and charged.
Kinywa said no person in Kenya should be arrested and charged by what has turned out to be an illegal entity or criminal enterprise that is not recognized as a commission, a state office or a state organ under the Constitution.
The directors want the police to be restrained from arresting, charging and prosecuting them and all magistrates and anti corruption courts restrained from hearing any criminal proceedings against them, arising out of any acquisition of the land in Port Reitz.
They are also seeking a declaration that there is no independent EACC and that the commission has no power to investigate, arrest and charge any private person, its powers being limited to state officers and public servants.
The directors want a declaration that the respondents have violated their rights by failing to pay the compensation promptly and in full for the acquisition of 0.0752 ha of the suit property.