Who wants Haji kicked out of office and why?

Thursday, November 11th, 2021 00:00 |
Director of Public Prosecutions Noordin Haji at a past function. Photo/PD/FILE

 “I assure you that the next DPP, if I do fall at all, will come with more gusto to pick from where I have left.” 

This were the words of Director of Public Prosecutions (DPP) Noordin Haji last month that have continued to reverberate in the minds of Kenyans.

Addressing the National Council on the Administration of Justice, a visibly agitated Haji narrated to a puzzled nation details of a scheme hatched by some of his colleagues to remove him from his position before the end of his eight-year non-renewable tenure.

Giving an analogy of the donkey and the tiger on the difference of the colour of grass, Haji likened those pushing for his exit to the donkey that insisted the grass is blue, when the truth is, it’s green.

“I don’t want to be the donkey, we all know the grass is green. The pen has written, the ink has dried, we will not allow any claw backs on this Constitution,” Haji told the delegates.

Since his Mombasa address, there have been numerous calls for his resignation, including two petitions for his removal filed by the late tycoon Tob Cohen’s family and businessman Francis Njeru, who accuses him of mismanaging his case.

Though Haji did not mention any names, observers were quick to point fingers at the Director of Criminal Investigations (DCI) George Kinoti, with whom the DPP has been having a war of words over prosecution of high profile cases.

Kinoti, who had sat pensively as Haji made the remarks in Mombasa, later said his officers were pursuing facts and “would in the long run be vindicated”. He said police officers would investigate all criminal cases regardless of the status of the suspect.

“We are following the truth and facts and at the end of the day, Kenyans will know that we are the people doing the right thing,” said Kinoti adding that everybody must be treated equally before the law, in an apparent reference to the recent standoff over Haji’s failure to prosecute Appelate judge Sankale ole Kantai.

“We must apply the law equally without any discrimination, otherwise it is only the weak who will be subjected to the law, not the mighty,” said the DCI boss, with his eyes directly fixed at Haji who was seated only a few steps away.

Haji’s outbursts led to the one-million dollar question; who wants the DPP out of office and for what reasons?

While some quarters have been quick to point fingers at Kinoti, some have criticised the manner in which Haji has been undertaking his duties and even questioning his career as a lawyer.

Lawyer Gad Awuonda, a former member of the Committee of Experts that drafted the 2010 Constitution, believes that some individuals within government are out to scuttle the independence of the Office of Director of Public Prosecutions (ODPP).

“If there are weaknesses in the ODPP, there are avenues through which they can be handled and not through the media. And people should know that it is not necessary that every case ends up being prosecuted,” Awuonda told People Daily.

Four petitions 

Currently, there are four petitions filed before the Public Service Commission (PSC) by different individuals seeking the removal of the DPP from office barely four years after he took over.

The litigants, who claim to have been victims of various decisions taken by the DPP over the past year, want PSC to investigate Haji’s conduct with a view to removing him from office.

Should PSC find the claims justifiable, it would write to the President, recommending a tribunal to hear claims by the DPP’s accusers and his defence and make a determination. Gross misconduct is one of the grounds a state officer can be removed from office.

Under the 2010 Constitution, the DPP enjoys security of tenure for a single eight-year tenure and can only be removed from office over mental incapacity or proven integrity issues. The major bone of contention between Haji and Kinoti is the unfettered mandate granted to him by the Constitution to decide whether or not there is sufficient evidence to prosecute any case.

In the PSC petitions, the litigants accuse the DP of incompetence, impunity and preferential treatment of suspects and litigants, being corrupt, biased, lack of impartiality, inequality, abuse of office, prejudice, violation of rights and fundamental freedoms, obstruction and inordinate delay in the administration and dispensation of justice and breach of the rule of law.

Those who have petitioned the commission for Haji’s removal include Cohen’s family; his former business partner Grace Nginda Ita; Joshua Karianjahi, the man previously accused of impersonating a senior police officer and businessman Francis Nyaga Njeru.

In the first petition lodged by Cohen’s sister Gabriel Van Straten, the DPP is accused of mismanaging her late brother’s case while in the second petition, Njeru accuses the DPP of failure to act in accordance with the Constitution in his Sh150 million fraud case.

The third petition is by the widow of the late Silas M’Njamiu Ita, Grace. Ita was Cohen’s business partner and is seeking Haji’s removal over alleged gross misconduct.

The fourth petition is by Karianjahi, who has over the years faced countless cases and now wants to have the DPP removed for allegedly maliciously prosecuting him and threatening to ensure that he would “rot in jail”. 

 Reacting to calls for his resignation, Haji states that his office operates within the Constitution and, therefore, he will not be cowed.  “I have fought very many battles, including going to Somalia to fight al Shabaab and came back victorious. I will still win this one,” he said. 

However, two days later, lawyers involved in the petitions seeking his removal said they were apprehensive that their lives were in danger.

Lawyers Danstan Omari and Shadrack Wambui now want the DCI to summon Haji to shed light on alleged threats. Omari and Wambui claim Haji’s remarks in Mombasa amounted to threats to members of the legal profession.

“On October 25, 2021, while addressing members of NCAJ, Haji misconducted himself by making reckless statements which amounted to a breach of the oath of secrecy as a former Deputy Director of National Intelligence Service (NIS) by disclosing that he went to war against the al Shabaab and that he will not be cowed by the three petitions before PSC that threaten his removal from office,” Omari said.

According to Omari, Haji’s declaration that he is a war veteran is a serious threat to advocates who have filed the petitions. “How safe are advocates who are just doing their work,” he posed.

Code of conduct

“We will be asking the DCI to summon him, not as DPP but as a person who threatened my client and other people, under the Public Code of Conduct and Ethics that stipulates that a public officer should not divulge information acquired in the course of service which amounts to secrecy.

And on Monday, the lawyers who filed the petitions by Ita’s widow and Karianjahi denied allegations that they are being funded by some Cabinet Secretaries, Jubilee Party and Kinoti to push for Haji’s removal from office.

Omari said the push for Haji’s removal from office is being agitated and funded by individual clients with lawyers only undertaking their professional duty.

“The allegations being circulated that some Cabinet Secretaries are financing us to remove the DPP from office are stray, far-fetched and a figment of their fertile minds,” said Omari at Milimani law courts after lodging the two petitions.

Omari said he is perturbed by the falsehoods circulating that some CSs, Kinoti and the Jubilee Government are funding for the removal of the DPP. 

On October 29, DPP Haji got a major reprieve after the High Court stopped PSC from considering two petitions by Cohen’s family and businessman Njeru seeking his removal.

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