Will Kamlesh Pattni’s court victory encourage Uhuru and Ruto on ICC cases?


Obviously this is an irreverent question, and not the sort of thing that could be countenanced in academia or in diplomatic circles. But I just couldn’t help myself since I write about practical realities in politics and governance here, while watching the podcast of Maina Kiai and Joel Barkan discussing the “Implications of the Kenyan Election” @NED and a question from the audience has inquired about the latest Pattni ruling.

Last week we learned that Kamlesh “Paul” Pattni, one of Kenya’s wealthiest “men of business” (not like Uhuru, apparently, but very wealthy) had been the beneficiary of a big legal breakthrough as the media reported that High Court Justice Joseph Mbalu Mutava had ruled back in March that Pattni could not be prosecuted in the trial courts for the notorious Goldenberg corruption scandal.

“Judge defiant after clearing Pattni of Goldenberg scam”

The judge also observed that the report by Commission of Inquiry chaired by former Court of Appeal judge Samuel Bosire on the scandal on which the existing criminal case was anchored is flawed and that most witnesses had died or their memories have faded.

Pattni moved to the High Court in August last year seeking to quash the criminal proceedings at the magistrate’s court and stop the State from further criminal prosecution on the scandal estimated to have cost Kenya billions of shillings.

On Pattni’s prayer that the media be barred from reporting on the case, the judge said that the court could only intervene to set parameters of reporting to protect someone’s rights.

Last November, Justice Mutava’s conduct was put to question in a petition filed against him by Havi and Company Advocates on behalf of the International Centre for Policy and Conflict (ICPC). It sought to have the judge removed from office over his handling of the Pattni cases.

ICPC had argued that the whole matter had not been handled through the correct procedure and some court orders made were outside of the law.

The petitioner had faulted the judge’s handling of the case and accused him of being part of “an orchestrated cover-up to aid and abet Pattni’s criminal conduct”.

Justice Mutava was later transferred to Kericho from where he wrote the controversial judgment on Mr Pattni’ application for the case to be scrapped.

(Read: Mutunga moves judge in the eye of Pattni storm)

In setting Pattni free, the judge heavily borrowed from cases that involved the late internal security minister George Saitoti and former Central Bank governor Eric Kotut, where the court recommended that the two should not be prosecuted based on the Bosire Report, which it said was heavily flawed.

. . . .

Unless director of public prosecutions Keriako Tobiko appeals the decision, the judgment brings to rest a 20-year-old scandal that destabilised Kenya’s economy and triggered massive depreciation of the shilling.

Mr Tobiko has already applied to court asking to be supplied with the certified copies of the proceedings to appeal the decision. The scandal dates back to 1990 when Mr Pattni incorporated Goldenberg International Limited, which claimed to have been engaged in gold and jewellery exports.

The Treasury paid the company Sh5.8 billion in compensation for the alleged exports, which was faulted as illegal, irregular and in some instances non-existent.

The businessman-turned-preacher was charged in court with the offence in the 1990s, but when former President Mwai Kibaki took office in 2003, all the pending nine charges were terminated and the Bosire commission formed to investigate the scandal.

The commission in its 2006 report recommended further investigations and prosecution of the suspects including Mr Pattni.

Meanwhile, Mr Pattni struck a plea bargain deal with the Central Bank, to which he refunded Sh2.4 billion and surrendered the Grand Regency (now Laico) Hotel.

(Read: Pattni bank targets CBK with Sh5bn Goldenberg-linked suit)

Following the recommendation of the Bosire Report, Pattni was charged at the magistrate court in 2006 with four criminal charges. In 2011, he started talks with the DPP to have the criminal proceedings dropped which collapsed early last year.

The charges against Pattni were brought afresh in April last year, where he was charged with eleven charges that included seven new ones. Following the development, he moved to High Court seeking to stop further prosecution saying that the state had infringed on his rights. . . .

Although the Judgment may have left room for the DPP to carry out fresh investigations, this may be a tall order considering that as noted by the Judge most witnesses have either died or their memories faded.

Among the dead co-accused are former spy chief James Kanyotu, former Treasury PS Wilfred Koinange and CBK deputy governor Eliphas Riungu.

Hmm. There are a lot of ways to win a criminal case for the defense besides being actually, as opposed to legally presumed, innocent. Who thinks the charges against Pattni are not rooted in fact?