NAIROBI, Kenya, Oct 5 – The Law Society of Kenya is divided over whether the Ethics and Anti-Corruption Commission has the right to investigate Supreme Court Registrar Esther Nyaiyaki.
Society Vice President Faith Waigwa has accused her Chairman Isaac Okero of acting out of turn in seeking to shield the registrar from the investigative authority and by unilaterally taking a position for the body of lawyers.
She says Okero mis-stepped in failing to call for a meeting of the Council before purporting to speak for the body corporate which is composed of members of varying political persuasions.
“The LSK is not only a professional body that represents advocates, it is a statutory body with the objects of protecting the public in matters ancillary to the law and assisting the government and the courts in matters relating to legislation and the administration of justice.”
On Tuesday, the Society President wrote to the Chair of the EACC – Archbishop Eliud Wabukala – explaining to him that the Commission has no jurisdiction over matters concerning the Judiciary.
It is however Waigwa’s contention that there is an established precedent of judicial officers being brought under the scrutiny of bodies separate from the judiciary and Nyaiyaki while deserving of fair treatment under the law, is not above it.
“It is expected that the society will be impartial, objective, true to the law and shall not take partisan or sectarian sides especially in political matters. Unfortunately, this has not been the case as this issue has not been deliberated by the LSK Council and a position arrived at.”
In her own advisory letter to Wabukala, the Law Society Vice-President was at pains to show instances where judicial officers were held to account by institutions other than the judiciary, listing occurrences pre- and post-the promulgation of the Constitution.
“At least two judges have been charged and subsequently acquitted while in office in Nairobi Chief Magistrate Anti-Corruption case number 36 of 2009; a former Chief Registrar of the Judiciary and five other senior judicial staff members have been charged and their matters are still pending in court; several magistrates have been investigated and charged in court.
Okero’s position as communicated in his letter to Wabukala, Waigwa stated, also deviated from stands previously taken by the Society in similar cases.
“The then LSK leadership issued statements supporting investigations in some of the above cases culminating in charging of the judicial officers. It would be discriminatory for the Society to now single out one judicial officer for preferential treatment without any basis in fact or law.”
The EACC last week wrote to Nyaiyaki requiring her to record a statement after one Rashid Mohammed through lawyer Kioko Kilukumi, triggered it to investigate why the findings of her audit of the forms differed from that of Supreme Court judge Njoki Ndung’u.
An enquiry he deemed, in his communication, to be of necessity given the serious implications of Nyaiyaki’s report as it in part informed the nullification of the August 8 presidential election.
In a television interview on Wednesday, the Independent Electoral and Boundaries Commission CEO Ezra Chiloba said that contrary to what was contained in Nyaiyaki’s report, all the constituency presidential election result forms the Commission presented to the Supreme Court for scrutiny, were signed by the concerned returning officers.