- He asked court to stop his further arrest and prosecution.
- Wants declaration that his arrest is a violation of his rights
Court of Appeal judge Sankale ole Kantai has sued the police boss and the Directorate of Criminal Investigations for violation of his rights.
He is accusing the police of malice. Kantai was arrested last year in relation to the murder of businessman Tob Cohen.
The judge, after being subjected to arrest and several summonses, was cleared by Director of Public Prosecutions Noordin Haji, who said there was no evidence to sustain charges against him.
And now Justice Kantai wants court to bar the DCI from using any information it has acquired from his phone against him in any way. Also sought is an order to bar any arrest or harassment or investigation.
He noted that the manner in which he was arrested and the recent arrests of judges Said Chitembwe and Aggrey Muchelule undermine the Judiciary and erode public confidence in the institution.
'The ambush and the intimidation that goes on during these arrests are a big threat to the independence of the Judiciary. The actions of the respondent ultimately undermine the public confidence in the judicial process, " he said.
On February 21, 2020, the DCI officers stormed his residence in six vehicles (some with blaring sirens) and arrested him without cogent reasons.
The officers later informed the judge that he was a suspect in Cohen's murder and that he would be charged in court. They asked him to record a statement and took his fingerprints.
Subsequently, he was booked at the Muthaiga police station on the night of February 21.
The judge says his phone was confiscated without a court order. The officers analysed data and even printed messages from his phone, which they only returned to him after three months.
This, in itself, amounts to breaching his rights to privacy and denying him the right to use his phone, he says.
He is apprehensive that the messages obtained from his phone might be used to incriminate him in the criminal proceedings.
The judge, while in private practice, did some transactions for Cohen’s company and does not believe that is the reason for his arrest.
“The transactions done during petitioner’s (judge) private practice had nothing to do with the allegations of the murder of Tob Cohen,” he says.
He is convinced that his arrest was malicious and made without prior investigations.
Given his high standing in society, the police ought to have just asked him to visit their offices and record a statement rather than dramatically arrest and cause him so much humiliation, the court was told.
A day after his arrest, he was released and asked to report to the DCI three days later, which he did. He was not asked to record any additional statements.
He was never charged but instead released on a police bond and directed to report to the DCI on a weekly basis and later monthly.
For 11 months, he was summoned at least 12 times to the DCI offices. He honoured all the summonses.
Thereafter, his file was placed before DPP Haji and he was asked to record a further statement to clarify queries raised. He complied and was asked to wait for communication on whether to charge him or not from the DPP.
For 17 months, he was kept in abeyance without any communication on the outcome of the investigations, making him live in fear of yet another humiliating arrest.
“The petitioner has been anxious that he could be rearrested anytime by the respondents. As such, the petitioner and his family have experienced untold psychological suffering that amounts to a violation of the right to human dignity.”
However, in a letter dated August 10, 2021, the DPP cleared the judge, citing a lack of sufficient evidence to prefer charges.