By Abraham Kiplangat Mutai, The Mutai
Twitter: @ItsMutai
Allow me to reintroduce the subject above:
Dating back to 1994, Mr. Nzamba Kitonga was a council member of the Law Society of Kenya, during which he was instructed and mandated by a group of lawyers led by Mr. Paul Muite to file a private prosecution against Mr. Kamlesh Pattni and 5 other individuals for a theft of Kshs. 18, 032, 198,069/= from the Government of Kenya.
Later, it unearthed that Mr. Paul Muite had been bribed to a tune of Kshs. 20,000,000/= to bungle up the private prosecution, which as expected, the private prosecution stalled. This was faced by an enraged Parliament and Law Society of Kenya.
In 1999, the then Chairman of LSK, Mr. Nzamba Kitonga formed a committee to inquire into the payment of Kshs. 20 million by Kamlesh Pattni to Paul Muite. The said committee vindicated Mr. Muite on the grounds that there appeared to be no improper motive in Muite accepting the said sum of money as it was for the withdrawal from the publication of the third article about Goldenberg. According to the Committee, there was nothing unusual in a suspect under trial transferring a large sum of money to his prosecutor.
In February 2003, the Judicial Commission of Inquiry into the Goldnemberg affair commenced its inquiry on the loss of Kshs. 5, 800,000,000/= with a view to recommending the prosecution of persons culpable and a possible recovery of the stolen money. Mr. Kitonga accepted an appointment to the Commission as Vice-Chairman, without disclosing that he was conflicted owing to his previous involvement in the private prosecution of Mr. Pattni and the subsequent bribery allegations against Mr. Paul Muite.
According to the Report of the Judicial Commission of Inquiry into the Goldenberg Affair submitted in 2005, the mandate of the Commssion was to:-
- “inquire into and establish the identities of the shareholders, directors and beneficial owners of the companies, partnerships and all other busines entitites involved in the transactions;
- to inquire into and establish the identities of the parties involved in the illegal destruction of documents and other materials in a scheme to cover up the colossal loss of the Governemnt occassioned by the “Goldenberg Affair” in order to avoid detection, investigation and prosecution or otherwise obstruct the course of justice; and
- to recommend the prosecution or further criminal investigations against any person or persons who may have committed offences related to such claims or payments”.
On 26th November, 2004 an Order by the Court was made in Miscellaneous Appliaction No. 1279 of 2004, compelling Mr. Kitonga and his fellow commissioners to perform their duties as per the provisions of the Commission of Inquiry Act, by issuing summons to those mentioned in the report before presenting it to the president. Among those summoned were retired president Daniel Moi, the late Honourable George Saitoti and Hon. Musalia Mudavadi.
In contempt of the Court’s Orders, Mr. Kitonga and fellow commissioners stated in page 11 of the report that :-
“The Court Order directed that unless we compelled all “the adversely” mentioned people to testify and received their respective evidence in full, we would not wind up our public hearings. Nor could we prepare and present our report to the appointing authority. The adversely mentioned persons who had not testified numbered over 1500. As at the date we wanted to conclude public hearings we had received evidence in public from 102 witnesses; over a period of about 20 months. In view of that we did not consider that it would be reasonably feasible to conclude the public hearings within a reasonable time. That was also the view of the Hon. The Attorney General, who immediately preferred an appeal to the Court of Appeal against that decision.”
As a result crucial culpable people were not interrogated and ended up escaping liability using the faults in the Report.One such individual is the late Honourable Professor George Saitoti whose name was quashed from the Report for the reason that he was not heard, when in actual fact, it is Mr. Kitonga and his fellow Commissioners who refused to summon him in total disobedience of the law and the Order by Court.
All senior culpable individuals, including Pattni, Kotut, Bii and Koinange used the inadequacies in the Report, arising out of the disobedience of the Court Order by Mr Kitonga and his fellow Commissioners to escape liability. Mr. Kitonga and his fellow Commissioners’ actions and omissions resulted in a miscarriage of justice and the real culprits in the Goldenberg Affair escaped using the very Report that sought to implicate them.
Consequently, a fellow Commissioner, Retired Judge of the Court of Appeal S.E.O. Bosire was found unsuitable to continue serving as a Judge and his review dismissed. According to the Sharad Rao report of 20th July, 2010, Bosire was found unsuitable principally on account of the three Commissioners’ disobedience of the Court Order which resulted in a shoddy Report that suspects used to escape liability.
If one of Mr. Kitonga’s fellow Commissioners in the Commission was found unsuitable to serve as a Judge on actions and omissions jointly committed by the three Commissioners, Mr. Kitonga cannot be suitable for appointment as Chief Justice and President of the Supreme Court for the same reason.
Mr. Kitonga is further conflicted, having represented the JSC and the LSK in Petition No. 3 of 2016 in challenging the amendments to the Judicial Service Act, directing the JSC to submit to the President three nominees for appointment as Chief Justice and President of the Supreme Court. Mr. Kitonga is clearly a person who had interest in the office and pursued the case successfully with interest on its outcome.
Mr. Kitonga was the Chairman of the Committee of Experts who drafted The Constitution, and is well informed of the intrigues in the constitutional provisions for the appointment of Chief Justice and President of the Supreme Court.
Mr. Nzamba Kitonga’s participation in matters where he has prior or future interests without disclosing the same, as demonstrated in his handling of the Goldenberg Affair and the case for the appointment of Chief Justice and President of the Supreme Court are strong indications that he is not a person of high moral character, integrity and impartiality and thus not suitable to be the next Chief Justice of Kenya.
The post NZAMBA KITONGA : A CANDIDATE NOT SUITABLE FOR POSITION OF THE NEXT CHIEF JUSTICE OF KENYA. appeared first on Kenyan Herald .