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"id": 976827,
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"speaker_name": "Sen. Mutula Kilonzo Jnr",
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"content": "They also gave us an example of a Nigerian who stole so much money as minister and then relocated to England. This gentleman had all the luxury cars that money can buy, from a Rolls Royce, et cetera while there. They did the calculation and there was no way that this person could have purchased all these luxury vehicles using his salary. This should apply both to people who bring their wealth to Kenya, and vice-versa. On jurisdictional issues now, what happens to Sen. Irungu Kang’ata if he becomes wealthy, relocates his wealth to the Isle of Man, goes and lives there? You need corresponding jurisdiction and extradition treaties with the corresponding jurisdiction, because it is about tracing the sources of wealth. In India it is simple; they say assets are proportionate to the known sources of income. Madam Temporary Speaker, the other issue is – I do not know where Sen. Farhiya has gone – this is upon a Statute. Being upon a Statute, there is a question of retrospective operation of upon a Statute. Once again, I will use Sen. Kang’ata as an example. Assuming that he stole 10 years ago, and you find that 10 years ago, he had assets unknown, un-proportionate to the known sources of income. In Penal Law, you cannot make a statute retrospective. So, we need to find a way of how we will anchor retrospective operation in this law. Otherwise, anybody who stole before 2020 is exempted from this law; it will not apply, and there is nothing that you can do about it once that is done. Madam Temporary Speaker, the framework is good, but I want to advice that in criminal jurisdiction in Kenya, the first point of trial is a Magistrate’s Court. You only go to the High Court on appeal. The only time that you go for a criminal trial in the High Court is murder; it is an appellate. Therefore, in terms of your jurisdiction here, you have started with the High Court. The High Court then would not be the correct court to start; you will start with the Magistrate’s Court. Sen. Farhiya, in our criminal jurisprudence, a Magistrate only gets jurisdiction once you have a charge-sheet. That is the same problem that we have today with Manduku. They said that they had arrested him, and when they went to the Magistrate, he said that he does not have a charge sheet. Therefore, you cannot commence, strictly speaking, criminal prosecution without a charge sheet. Therefore, the question of deferred prosecution before you charge somebody is unknown in our criminal jurisprudence. Therefore, there must be corresponding amendments to our criminal procedure. The second one, Madam Temporary Speaker, is that the Director of Criminal Prosecution is an interested party in prosecution. Is it the right person to negotiate with, in terms of deferred prosecution? This is because I said that he is an interested party. The Director is an interested party in your conviction; it is not necessarily on what you have stolen. I am saying that he is an interested party in your conviction. Therefore, Sen. Farhiya, when you propose that the word “intends” or “is in the process of prosecuting you;” that is so dangerous. All he needs to do is to commence a criminal prosecution against Sen. Wamatangi – that is it – that will give him jurisdiction. Therefore, where you do not want the power to be abused, you cannot say, “Intends to prosecute.” This is because in our criminal jurisprudence, by the time a charge sheet is tabled in court, the prosecutor is saying that, “I am satisfied by the evidence.” However, when they are seated in their office – I do not know where their office is these days – anything that they get is prosecution. The problem that we have is The electronic version of the Senate Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor, Senate."
}