DPP Noordin Haji yesterday suffered a set back after his attempts to keep NLC chairman Muhamad Swazuri out of office failed.
The High Court
declined to bar National Land Commission chair Muhamad Swazuri from accessing his office until his case is heard and determined.
Anti-corruption court Judge Hedwig Ong’undi said she would have issued the orders if the DPP proved the conditions she set had been violated.
The court had directed Swazuri not to interact or interfere with the witnesses at his work place or any other witness.
It had also directed him not to interfere with the records or documents relevant to the case.
Failure to comply would lead to automatic cancellation of his bond.
Ong’undi said nothing had been placed before court to show Swazuri had violated the conditions set by the court.
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The DPP had in an application urged the court to suspend orders allowing Swazuri back to office.
In his submissions, senior state prosecutor Alexander Muteti told the court they have filed an arguable appeal which raised important and substantial questions of the law and it was important the High Court stayed its decision before the appeal is heard.
“I would have quickly and gladly varied the orders if the DPP had shown the court that the conditions this court set had been violated. Nothing has been placed before this court to warrant the taking of such drastic actions against Swazuri. This is a court of law and each process must be followed before making any orders,” the judge ruled.
The judge said it was not clear whether the DPP wanted the court to set aside its orders and reinstate those of the chief magistrate.
She said if the DPP is dissatisfied with her ruling and has already filed an appeal, the best place to argue the application would be at the appellate court.
Muteti said they will seek the Court of Appeal to interpret Section 62 ( 6 ) of the Anti-corruption and Economic Crimes Act that seeks suspension of those charged.
Unlike other public officers who are suspended upon being charged with corruption and economic crimes, constitutional office holders such as Swazuri are exempted by virtue of the Section.
It provides: “This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated”
But Muteti said by enacting the Section, Parliament applied it selectively and failed to consider the its implications.
“The law should not be applied selectively. Immunity to criminal prosecution is only extended to the President and he is the only one who would not be required to get out of office,” he said.
Speaking on Citizen TV last month, Haji said leaving accused persons to continue holding offices hampers prosecution. Muteti told the court they were aggrieved by the orders setting aside the bond terms imposed on Swazuri by the trial court.
Swazuri was opposed the application for stay on grounds that the court lacks the jurisdiction to hear it.
He also said he had not violated any of the conditions set by the court to warrant the issue of the orders.
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