Hon. Amos Wako
Attorney General
State Law Office
Sheria House
P O Box 40112
Nairobi
Kenya

Fax: +254 020 211082

Vienna, 20 May 2005

Your Excellency,

The International Press Institute (IPI), the global network of editors, leading journalists and media executives in over 120 countries, is writing to express its concern about the decision to discontinue criminal legal proceedings against First Lady Lucy Kibaki.

According to information provided to IPI, Magistrate Rosemell Mutoka recently announced that the court had no option but to accept your decision to terminate the proceedings.

In doing so, you exercised the power of nolle prosequi under the Kenyan Constitution allowing you to annul criminal legal actions. Nation cameraman Clifford Derrick Otieno filed the criminal proceedings against the First Lady on 16 May alleging assault and malicious damage to property at the Nation Media Group’s newsroom.

According to the facts of the claim, the First Lady entered the Nation’s offices on 2 May and assaulted Otieno and damaged his digital video camera recorder valued at Sh. 180,000. The First Lady had apparently gone to the offices to complain about the portrayal of her family in the media.

In the opinion of IPI, the exercise of the right of nolle prosequi should be used sparingly and only in cases where there is an overriding concern that the continuance of a prosecution will lead to an abuse of law or gross miscarriage of justice. It is not, however, a political tool to frustrate the legitimate right of Kenyan citizens to pursue legal proceedings.

In this present case, IPI is deeply concerned that the decision is political in nature and intended for the sole purpose of avoiding undue embarrassment to the political leadership of Kenya.

As with any other citizen, journalists have a right to pursue legal actions and to have their claims tested by the courts. By annulling this action, you have failed to uphold this fundamental principle.

Furthermore, the fairness of any legal system rests on the belief that the rule of law is applied without fear or favour to any individual, group or institution. The failings in this case lead IPI to the inevitable conclusion that the law has been applied in an arbitrary fashion and reveals a twin-track legal system that assists those in power, and their partners, while denying rights to ordinary Kenyan citizens such as Otieno.

Moreover, based on newspaper reports, it would appear that the power has been exercised prior to the court’s acceptance of the legal suit. As a result, you have placed yourself in the anomalous position of blocking a legal action that, as yet, has received no consideration of the facts. This reveals an intention to block the action at any cost and is indicative of an alarming disregard for the rule of law and the principle that such powers should be exercised, if at all, in circumstances where there has been a full and impartial review of the facts.

With the above in mind, IPI calls on you to rescind the decision to discontinue the legal action against the First Lady and invites the Lord Chief Justice to restore confidence in the rule of law by thoroughly reviewing this overly broad Constitutional power and ensuring that its arbitrary exercise is not repeated.

We thank you for your attention.

Yours sincerely,

Johann P. Fritz
Director

Cc: H. E. Justice Evan Gicheru
Chief Justice
Judicial Department of
High Court of Kenya
P O Box 30041
Nairobi
Kenya