Attorney General Amos Wako. Photo/FILE
By OLIVER MATHENGE omathenge@ke.nationmedia.com AND BERNARD NAMUNANE bnamunane@ke.nationmedia.comPosted Thursday, January 13 2011 at 22:30
Attorney-General Amos Wako has written to Treasury requesting funds for the legal defence of two of the six Ocampo suspects.
Nation sources said that the decision to pay the legal costs for Head of Civil Service Francis Muthaura and Postmaster-General Hussein Ali was allegedly reached at a Cabinet meeting in December last year.
The Nation has not seen a copy of the letter and Mr Wako could not be reached for comment but the sources, who are privy to Cabinet proceedings, said Mr Wako’s letter was dated December 29.
Opinion in government is sharply divided with some opposed to the use of public funds for the defence of criminal matters and others arguing that Civil Service regulations obligate the government to do so.
On Thursday, Justice and Constitutional Affairs minister Mutula Kilonzo opposed the use of taxpayers’ money arguing that the two officials are being sued in their private capacities.
“They are being sought in their individual capacities and therefore cannot expect to get legal representation at the taxpayers’ expense,” he said.
On Wednesday, Government Spokesman Alfred Mutua said the matter was being reviewed and a decision on financing the defence of the Ocampo suspects will be taken.
“The issue of covering the legal fees of the mentioned officials is still under review and any decision made will be done in accordance with the Constitution and the code of conduct for civil servants,” he said.
Mr Kilonzo said that if any of the six does not have money to retain a lawyer, they can apply to the Hague for legal aid.
He argued that if the government pays their legal costs, it will also be saddled with reparations which the court will order, “including restitution, compensation and rehabilitation”.
“There is no money to cater for individual liabilities,” he maintained. “Parliament has not approved for this expenditure.”
Another official said a defence fund of Sh250 million for each of the officials had been discussed but only for civil servants and not politicians.
“The argument is that there are only two people — Major-General Hussein Ali and Civil Service head Francis Muthaura — who qualify for legal aid under the law and the Public Service Code of Regulations since they have been charged on matters related to their work,” the official said.
The regulations say that a public officer who is facing criminal prosecution as a result of an act of omission in the course of official duty qualifies for legal aid from the government.
Such an officer, the regulations say, is supposed to apply for such assistance to his or her permanent secretary or head of department, who in turn approaches the AG for assistance.
“If the latter (PS or HoD) is satisfied that the officer acted in good faith in the execution of his official duties and that it is in public interest that the officer should be defended, he will report the matter immediately to the Attorney-General, who will decide whether or not the officer should be defended,” the regulations state.
The legal fee is charged to the AG’s office and does not cover any fines or compensation against the officer or those who are accusing him.
At the time of the post-election violence, Mr Muthaura held his current position as Head of Civil Service and chaired the National Security Council. Mr Ali, on the other hand, was the Commissioner of Police and a member of the NSC.
Execute attacks
The two have been accused by ICC prosecutor Luis Moreno-Ocampo of using their offices to assist PNU politicians and supporters led by Deputy Prime Minister Uhuru Kenyatta to execute attacks on ODM supporters.
The other accused are former ministers William Ruto and Henry Kosgey and radio journalist Joshua arap Sang.
Mr Kenyatta, who is also the Finance minister, has remained silent on the issue but Facebook and Twitter accounts attributed to him on Thursday had updates indicating that he has not authorised any money.
The statement read: “I haven’t approved any use of taxpayers’ money on ICC cases. The focus now is to ensure food security for our people and implementation of the new constitution.”
The two accounts in the two social networks have previously carried similar statements as those sent to the media from the DPM on various matters.
The ICC can offer legal assistance to suspects, but the court has to determine this by examining their means of income.
— Additional reporting by Richard Munguti
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