DPP Noordin Haji wants a bench of more than one judge to rule whether he was right to charge DCJ Philomena Mwilu.
He wants the bench to determine if a decision to prosecute a judge can be faulted on account of political pronouncements made by politicians that have no connection to the subject matter of the criminal proceedings.
In a certificate of urgency filed at the Milimani law courts, Haji says Mwilu’s petition raises substantial
questions of law that are of public importance that merit certification for hearing by uneven number judge. Justice Chacha Mwita was tasked to refer the file to CJ David Maraga for him to empanel a bench of preferably five judges.
On Friday, Mwita directed that the matter be mentioned on October 9 and not earlier as requested by the DPP.
The High Court suspended Mwilu’s prosecution over fraud. Haji says the case has to be heard by a bench rather than one judge.
He wants the bench to establish whether criminal charges can be preferred against the DCJ. He also seeks clarification on whether his office can institute criminal proceedings where the Judicial Service Commission has taken no action against a sitting judge despite knowledge and information about the criminal conduct of the judge.
The team will resolve the question of whether the JSC can proceed to initiate proceedings against Mwilu and if they fail to take action against her, what recourse is open in law to the public where the subject matter affecting the judge is of a criminal nature.
The judges will also define whether judges are immune to criminal prosecution over acts committed outside the court of duty. Haji seeks to know his office can lawfully fail to commence criminal proceedings against a sitting judge without violating Article 157 of the Constitution.
The bench will determine whether in exercise of the powers conferred to the office of the DPP, criminal proceedings can be initiated against a sitting judge of the superior courts. Further, it will decide whether before the commencement of such criminal prosecutions
it is constitutionally necessary to remove the judge of the superior court from office.
“The court should determine whether the criminal prosecution of a sitting superior court judge amounts to encroachment on the independence of the Judiciary” the application reads.
Haji says the determination of Mwilu’s petition before court will affect the performance of the constitutional mandate of his office and that of the DCI.