The Directorate of Public Prosecutions has been allowed to participate as an interested party in a petition filed by two human rights lobby groups seeking conservatory orders to have the freeze on their bank accounts lifted.
Mr Justice Anyara Emukule also allowed the Kenya National Commission on Human Rights and Katiba Institute to be joined in the petition by Muslims for Human Rights and Haki Africa asamicus curiae (friends of the court).
The two Mombasa-based human rights lobby groups which are listed by police as entities suspected to be associated with Al-Shabaab had opposed the inclusion of the DPP in the case. Through lawyer Paul Muite, they argued that the Attorney-General, who they have also sued, is the principal adviser to the government and shall represent it in court other than in criminal proceeding as per the Constitution.
Mr Muite submitted that proceedings before the court relate to a petition concerning a violation of rights. “Nowhere in our petition and application are we seeking orders to stop the DPP from directing investigations, no one is saying if they gather evidence of criminal wrongdoing the petitioners should not be prosecuted,” said Mr Muite.
Mr Muite, who did not oppose the inclusion of Katiba Institute and KNCHR, said there is no legal basis for the DPP to be enjoined in the proceedings. The Senior Counsel also opposed an application by the AG to have the case adjourned for four days. He wondered why the police moved with speed to publish the Gazette Notice yet when citizens move to court the AG has not received instructions. “They are sitting pretty because they succeeded in grinding us to a halt,” claimed Mr Muite.
PROMISED TO GIVE INSTRUCTIONS
Assistant DPP Alex Muteti said they would demonstrate they have sufficient interest to be enjoined in the case.
Through Ms Wanjiku Mbiu, the AG told the court that he has been in contact with the head of the Inspector-General of Police’s legal department who promised to give instructions by Monday. Ms Mbiu, who also argued that it is necessary the DPP be enjoined, said they would oppose the grant of the conservatory orders “at the moment”.
Through lawyer Wamuti Ndegwa, NIC Bank Ltd, which has also been used by the lobby groups, said it did not object to the inclusion of any parties in the suit. Mr Ndegwa, who sought for more time to file their response to the petition, told the court they would raise a preliminary objection against the suit. The application by the DPP to be enjoined in the case was based on the grounds that the office of the DPP as established under Constitution has the power to direct the IG to investigate any information or allegation of criminal conduct.
“The first respondent (IG) has a constitutional duty to conduct the said investigations and forward a report of findings to the proposed interested party for review and direction,” read part of the grounds. Through a supporting affidavit, prosecution counsel Alice Mbaeh said orders sought if granted have the effect of giving the two lobby groups leeway to decimate or conceal money held in their accounts.
“The petitioners are being investigated for terrorism financing and therefore their accounts are under investigation and any monies held in the accounts are subject to forfeiture should investigations disclose they have been involved in terrorism financing,” said Ms Mbaeh. In seeking to be granted the conservatory orders, the lobby group argues that the IG has no powers to publish the Gazette Notice.
The lobby groups have also sued the IG, Interior Cabinet Secretary and Gulf African Bank Limited. They claim that as a consequence of the publication of the Gazette Notice listing them as entities suspected to be associated with Al-Shabaab, the two banks froze their accounts rendering them incapable.
According to the application by the lobby groups, the action by the IG is in breach of the Constitution which provides that every person has a right to have any dispute that can be resolved by the application of law decided in a fair and public hearing. The petitioners further argue that the action by the IG violates the Constitution which provides that every person has dignity and the right to have it respected and protected. The court also directed that the application for the grant of the conservatory orders sought by the lobby groups be heard on Thursday next week.
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