POST ANALYSIS: COMMISSIONER TO FACE TRAIL Following my last news article Commissioner of Police to face trial on contempt of court proceedings I thought Id provide some insight into the issues raised before the Chief Justice and his subsequent decision to dismiss Vakis application to strikeout the case. In my recent article on Prime Minister challenges his referral I explained that a party taken to court will typically seek to have the case against them struck out before it gets to trial. This is done by raising technical issues of law or making a no case application. They will generally rely on arguments that the other party may have failed to follow strict court processes therefore the matter is not properly before the court and should be thrown out or there is lack of evidence or merits to believe the case would succeed to justify it going to trial, thus wasting the Courts time as well as the opposing party. Vakis Lawyer Greg Sheppard filed the application seeking orders to dismiss the entire contempt proceedings case against Vaki on the grounds that it was frivolous and vexatious, and an abuse of process. A case is frivolous if it has no reasonable chance of succeeding, and is vexatious if it would bring hardship on the opposite party to defend something which cannot succeed. Vakis Lawyer was hoping the CJ would follow the previous ruling of National Court Judge Kandakasi in November 2014 ruling in Vakis favour and dismissing an earlier case filed in July by National Fraud and Anti-Corruption Directorate Timothy Gitua and Mathew Damaru. The duo filed proceedings against Vaki seeking orders to prevent him from interfering with their investigation against the Prime Minister. In the same proceedings Damaru and Gitau filed an urgent application to granted an interim stay order against Vaki from obtaining the Paraka file which included evidence against the PMs alleged involvement. They argued if the files were surrendered to the Commissioner it would be compromised. Judge Kandakasi granted the stay order restraining Vaki until the Court determined the substantial merits of the case. On 2 October 2014 in a separate case dealing with arrest warrant against the Prime Minister the Supreme Court in which a five-man-bench ruled that the Police Commissioner exercising his powers under Section 198 of Constitution had total control, superintendence and power over the operation and administration of the Police Force. This included the authority to issue directions to other members of the police force regarding the conduct of criminal investigation. In November 2014 Vakis lawyer returned back to Court filing an application to dismiss the National Court case by Damaru & Gitau. Vakis Lawyer argued that following the ruling of the Supreme Court the early application filed by Damaru and Gitau restraining the Police Commissioner was misconceived and an abuse of process because the Supreme Court has since ruled Vaki has full authority power over the Police Force and entitled to access the Paraka files. Vakis Lawyer submitted to Kandakasi to take note of the ruling and not be induced into making a ruling against the Supreme Court. Kandakasi ruled that he was bound by the Supreme Court rulings and could not go against them. He dismissed his earlier stay orders, saying that police officers must be seen as complying with the instructions of the Police Commissioner and thus police officers should not be seen as running their own show. Although there were many who didnt agree with the Kandakasis decision it was the right one because the National Court is bound by Constitutional law (Schedule 2.5.9) to follow all rulings or decisions of the Supreme Court. Schedule 2.5.9 of the Constitution deals with Subordination of Courts and subjection (1) is in the following terms All decisions of law by the Supreme Court are binding on all other courts, but not on itself. Following the success to have those proceedings struck out Vakis lawyer filed a similar application in the contempt of court proceedings case against Vaki alleging he defied the Courts orders by frustrating the execution of the warrant against the Prime Minister Peter ONeill. Vakis Lawyer was hoping to rely on the same Supreme Court ruling however unlike the previous case which related to Police administrative powers of the Commissioner, contempt of court charges are matters that come under the administration and jurisdiction (powers) of the Court. In the same Supreme Court case the five man bench ruled that a warrant by the district court “is the equivalent of a court order, which must be complied and put into effect even if it is defective. Because it is an order of the Court only the Court can correct or withdraw its own orders. If the Court issued an order the only appropriate action is to go back to court and ask it set aside its own orders rather than just defy it. In the end CJ ruled against Vakis application dismissing it and ordering the case go to trial. Vakis Lawyer then raised a second application that the trial be stayed because the contempt proceedings relate to the warrant of arrest that is before the National Court filed by the Prime Minister challenging its validity (whether it is defective or proper). Vakis Lawyer was hoping the contempt proceedings would be stayed until those proceeding are first determined, knowing that it would delay Vaki facing trial and conviction if found guilty. The CJ again refused the second application by Vakis Lawyer, because the Supreme Court ruled whether a warrant is defective or not it must be complied with therefore could not be relied an as a defence in the contempt of court proceedings. Lawyers representing the Gitua and Damaru stated they will apply to have the case listed for trial in February 2015. The only issue left to deal with will be the evidence proving the allegation against Vaki that he deliberately defied and frustrated the District Court orders to arrest the Prime Minister Peter ONeill. The trial may take one or two days before the CJ will then adjourn (take a break) for a month before handing down his ruling. Should the Court find Vaki guilty and sentence him to serve time in prison he will most certainly appeal the decision in the Supreme Court, making an urgent bail application until his appeal is determined. Following the precedent (previous ruling) set by former Police Commissioner Sir. Thomas Kulunga. Kulunga was found guilty of contempt for failing to implement court orders re-instating Vaki, after the court ruled that the Constabulary erred in dismissing Vaki from the force. Kulunga was sentenced to serve one year and nine months in prison. He filed an urgent appeal against the decision and obtained bail to stay out of jail until the Supreme Court determines his appeal. It is also important to understand if a judge finds a person guilty of contempt of court, sentencing is a discretionary to each Judge. Kulunga was found guilty and sentenced by Deputy Chief Justice Salika who is on record for handing down harsh sentences against persons holding public office. It is not to say every other judge will follow suit. Whatever the final outcome we shouldnt expect a ruling until April 2015.
Posted on: Sun, 14 Dec 2014 07:19:36 +0000
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