POLICE COMMISSIONER SERVED WITH CONTEMPT CHARGES ///////////////////////////////////////////////////////////////////////////////////////////////////////////////////// Source: Post Couier followed by Post Analysis POLICE fraud officers have filed contempt proceeding against Police Commissioner Geoffrey Vaki for refusing to enforce the warrant of arrest on Prime Minister Peter O’Neill in relation to the Paul Paraka saga. The contempt proceedings were filed by the director of National Fraud and Anti-Corruption Directorate Mathew Damaru and deputy director Timothy Gitua on the grounds that Mr Vaki had intentionally interfered with and failed to allow fraud officers to execute the arrest warrant against the Prime Minister. A total of four charges were laid in the contempt proceedings against Mr Vaki, including a deliberate failure by Mr Vaki since taking office as Police Commissioner to support the work of the Fraud Squad to execute the arrest warrant on the Prime Minister; provision of policemen to protect the Prime Minister from being arrested; and making public statements through the media that he would not implement the arrest warrant on the Prime Minister. The matter is expected to proceed in court this week. Meanwhile, Mr Vaki also filed a judicial review proceeding at the National Court to challenge the District Court‘s decision that refused his bid to set aside the warrant of arrest on the Prime Minister. The matter is expected to proceed today at the judicial review court. Mr Vaki named Chief Magistrate Nerrie Eliakim as first defendant, Prime Minister Peter O’Neill as second defendant and the State as third defendant in the proceedings. Mr Vaki based his application on three grounds: That the chief magistrate had acted without or in excess of her jurisdiction in issuing the warrant for arrest in the absence of the laying of an information in accordance with section 8 of the arrest Act; The magistrate erred as a matter of law in issuing the warrant in circumstances in which there were non- compliance with section 8 of the Arrest Act; and That the warrant of arrest was invalid and void. ///////////////////////////////////////////////////////////////////////////////////////////////////////////////////// Post Analysis To-date Vaki has been served with two contempt of court charges. The first filed by former Deputy Police Commissioner Simon Kaupa & Police Association in relation to National Court proceedings where Judge Kariko issued orders to all parties involved in the PMs application to stay (stop) police from arresting him that the status quo is to remain the same. This meant all parties in that case were not to take any action until the court handed down its decision. Within 24 hours of those orders PM sacked the Police Commissioner Tom Kulunga, the Attorney General Kerenga Kua and appointed Vaki as Acting Police Commissioner and Ano Pala as the new Attorney General. Vaki then sidelined the Police Lawyer and engaged Paul Mawa to support the PMs application (request not to be arrested) instead of the Police. The same evening Simon Kauba ordered Vakis arrest on charges on perverting the course of justice. Vaki then Sacked Kauba and days later former Assistant Police Commissioner for Crimes Thomas Eluh. Those contempt proceedings was initially heard by Chief Justice and referred back to Judge Kariko to determine whether his orders were breached. The matter is still before Courts the next hearing on 6th August 2014 1:30pm. The 2nd contempt charges relates to Vaki defiance (refusal) to enforce the arrest warrants issued by the District Court. Director for Crimes Mathew Damaru has filed these proceedings against Vaki. A warrant of Arrest is an order of the Court to arrest an accused in this case the PM. Once the Court issues orders its not for Police or any person to refuse to carry them out. If a person believes the Courts orders are improper then they are required to go back to Court and make a formal request to the Court to withdraw or alter its own orders. In this case Vaki refused to enforce the Courts orders for the PMs arrest and instead prevented his officers from effecting it. Kulunga made the same mistake when the Court issued orders to reinstate Vaki to his old position of Deputy Police Commissioner Operations back in October 2012. The Court ruled Vaki should be restated because the investigations into disciplinary offences that led to his suspension and termination were never completed therefore his termination was improper. The Court issued orders he be reinstated until the disciplinary charges are determined and the outcome has been conveyed to him. Kulunga should have re-instated Vaki and then completed the investigations into displinary charges. If found guilty Kulunga would could then taken appropriate action. To-date those orders have not been completed and now that Vaki is the Police Commissioner he is in charge of investigations against himself. If Vakis is found guilty of contempt he may suffer the same fate as Kulunga, (imprisonment). NEC claimed they retired Kulunga because of his conviction of contempt charges so it will be interesting to see what position they take if Vaki is convicted of the same offence. Meanwhile Vaki has filed Judicial Review in National Court. Judicial Review is process of asking the higher court to review or examine the decision of a lower court. In this case Vaki is asking the National Court (higher court) to review the decision of the District Court (lower court) ruling against his application (request) to withdraw the Arrest Warrants against the PM. Vakis grounds (reasons) being that he believes the Arrest Warrants were improperly obtained in that they did not comply with Section 8 of the Arrest Act (Law that stipulates how arrests are to be issued) in that no information was laid before the District Court to justify the arrest warrants. Section 8 states where an information is laid before a court, other than a Local Court (District Court) that there are reasonable grounds for believing (either) (a) that a person has committed an offence and (b) that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary– So the question is what is an information?? By definition under the Arrest Act defines “information” includes a complaint for an offence. So this means if the Fraud squad officers need only provide information either statement of allegations or letter of complaint against the PM to the Chief Magistrate obtain an arrest warrant. However Section 8 relates to obtaining arrest warrants by a Court other than a Local Court. A local court is a District Court. The arrest warrants were obtained by District Court not another Court say the National Court. So Section 8 does not apply but rather Section 9 does which states; where a complaint for an offence has been issued in a Local Court the Court, if it considers it necessary, may issue a warrant for the arrest of the defendant. Fraud Squad filed a complaint to the District Court believing the PM was guilty of committing criminal offence of Official Corruption for unlawfully approving K71.8m payments to Paraka Lawyers. The Criminal Code (law) states that Police are required to obtain a warrant of arrest before they can charge a person for Official Corruption. So in accordance with Section 9 the District Court considered it necessary to issue the the arrest warrants that was required by law (Section 87(2) of Criminal Code). Issuing arrest warrants are inherit powers to the District Court. So in my humble opinion I would argue Vakis case should be dismissed. Good luck to all of them...
Posted on: Thu, 17 Jul 2014 06:34:05 +0000
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