The Public Service Commission wants court to set aside orders that barred it from commencing the process of hearing petitions to remove Director of Public Prosecutions Noordin Haji from office over allegations of gross misconduct.
The PSC on Tuesday, April 17 told the High Court that the prohibitory orders issued in October 2021 were hindering the commission from discharging its mandate.
The orders barred the Commission from considering petitions lodged by late Tob Cohen’s sister Gabriel Van Straten and Ibrahim Ndung’u Ndirangu against Mr Haji over alleged failure to perform his duties by charging a murder suspect.
The Commission was barred from sitting, considering, evaluating, hearing and determining the two petitions pending the determination of a case filed by Mr Haji in court challenging the process and powers of the PSC.
Through lawyer Jacqueline Manani, PSC yesterday said that the orders also affected two other separate pending petitions and any other petition that may be filed over the DPP’s conduct.
“PSC’s position is that we cannot have a blanket court order subsisting in one matter that is preventing the PSC from undertaking its constitutional mandate on all other petitions unrelated to the subject matter, two of which are pending consideration by PSC and any other that may be filed by aggrieved Kenyans,” said lawyer Manani.
She asked court to vary the prohibitory orders so that PSC can be able to do its work.
The lawyer observed that it was unjust to bar all other Kenyans whose complaints may be unrelated to the two pending petitions.
“It is also unjust and unconstitutional to prevent PSC from undertaking its mandate for almost two years now. One of the petitions that gave rise to the court case has since been withdrawn,” said Ms Manani.
“For that reason, we pray that for the purposes of enabling PSC to undertake its mandate and giving other aggrieved Kenyans the opportunity to seek justice, specifically the two whose petitions are pending and which are unrelated to this petition, we pray you to hear our application for variation of the orders issued in 2021. It is not fair to hold other Kenyans who are seeking justice because of the pending case,’ she stated.
The ouster petitions were questioning DPP’s decision and failure to prefer murder charges against a judicial officer (name withheld due to a gag order) over Cohen’s murder in 2019.
The High Court barred the PSC after Mr Haji filed a case complaining that the two petitions intended to coerce and force him to charge the judicial officer when there was no sufficient evidence linking him to the murder.
Mr Haji sued after he was served with a notice by the PSC requiring him to respond to the allegations leveled against him.
His lawyers Taib Ali Taib and Alexander Muteti yesterday said the PSC does not have the authority to hear and determine the petitions.
They also disagreed that all four petitions were unrelated.
“These complaints were against the independent decision-making process of the DPP. The petitions were synchronized and choreographed toward that independence. We do not agree that the other petitions are not related. We maintain that they are related and choreographed to meet the same purpose,” said Mr Taib.
For his part, Mr Muteti said the petitions before PSC raise similar issues involving a request for a tribunal to be set up for the removal of DPP Haji from office.
“We have gone through all the petitions before the PSC and we are persuaded that there are constitutional issues that would require this court to deliver itself on. This is not only on PSC but also to offer guidance to the PSC on the invocation of its jurisdiction on matters of this nature,” said Mr Muteti.
He added that the court should offer guidance and clarity to the holder of the office of DPP “as to what extent one may exercise the powers of that office without having to look over their shoulders every time they make a decision as to whether or not to prosecute”.
Justice Ong’udi asked the parties to expedite the hearing of the case as she observed that the interim prohibitory orders were inhibiting PSC from carrying outs its mandate.
“It is true conservatory orders issued on October 28, 2021, have inhibited PSC from carrying out its duties. There has also been delay in this matter. It is high time to expedite the process,” said the judge. She directed the parties to complete filing their pleadings and appear in court on June 7, 2023, for a hearing.
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