Human rights lawyer Gitobu Imanyara seeks to privately prosecute Deputy Police IG Eliud Lagat
Through his lawyer, Cecil Miller, Lagat argued that any attempt by the court to compel the DPP to prosecute him would amount to an unlawful usurpation of powers and set a dangerous precedent undermining prosecutorial independence.
Human Rights Lawyer Gitobu Imanyara is seeking to have Deputy Inspector General of Police Eliud Lagat face private prosecution over the death of teacher and blogger Albert Omondi Ojwang.
Imanyara, in an interview with The Eastleigh Voice, revealed he and other human rights lawyers are set to ask the court to grant them permission to pursue private prosecution after Lagat said only the Director of Public Prosecutions (DPP)has the constitutional mandate to decide whether he should face charges over the death of Ojwang.
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“Just saying that it’s only the DPP who can have him prosecuted is a misunderstanding of the Constitution. As we are speaking, we are in court to ask them to grant us permission for private prosecution so that those who perpetrate police brutality during the protests are prosecuted,” said Imanyara.
The lawyers are also planning to have other top security chiefs face prosecution along with Lagat. They are eying Directorate of Criminal Investigations head Mohammed Amin and his National Intelligence Services Counterpart Noordin Haji.
“We will ensure that Lagat is among those who get prosecuted. In this, we will have the Inspector General of Police, Director General of DCI and head of NIS because of the principle of command responsibility that is in our Constitution,” added Imanyara.
Through his lawyer, Cecil Miller, Lagat argued that any attempt by the court to compel the DPP to prosecute him would amount to an unlawful usurpation of powers and set a dangerous precedent undermining prosecutorial independence.
“The petitioners’ prayer to have this court compel the DPP to prosecute the 11th Respondent is an improper attempt to take over the functions of independent institutions,” his submissions read in part. “This court cannot declare someone guilty without a trial nor direct the DPP to prosecute absent evidence of constitutional failure.”
Lagat, who has denied involvement in the alleged arrest, torture, and killing of Ojwang, said both the Independent Policing Oversight Authority (IPOA) and the DPP investigated the matter and found no evidence linking him to the incident. He stated that IPOA conducted thorough investigations, after which the DPP reviewed the file and only charged individuals deemed culpable.
The DIG added that he voluntarily stepped aside from his duties to allow unfettered investigations, insisting that his continued service does not violate any constitutional provisions.
However, Imanyara argues that Lagat and those whom he is working for should understand that those who are supreme are the citizens of Kenya, and the DPP is just a public office, and if that office fails in its mandate, then Kenyans have other means of having him prosecuted.
“He should not think that because there are people who defend him through unconstitutional means, he will go scot free. He will realise that the Constitution is supreme,” he added.
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