DIRECTOR OF FRAUD FORMALLY CHARGED

by  BRYAN KRAMER
 

Director of National Fraud & Anti-corruption Directorate Mathew Damaru was formally charged by Police under Section 197 of Criminal Code for allegedly making a false declaration and statement.
The provision is in the following terms;

"(1) A person who, on any occasion on which he is permitted or required by law to make a statement or declaration before a person authorized by law to permit it to be made before him, makes a statement or declaration before that person that is to his knowledge false in a material particular is guilty of a misdemeanour."

"Penalty: Imprisonment for a term not exceeding three years."
"(2) A person cannot be convicted of an offence against Subsection (1) on the uncorroborated testimony of one witness."

The charges relate to Contempt of Court proceedings filed against the Commissioner of Police Gary Baki by Damaru and his Deputy Director Timothy Gitua. Both Damaru and Gitua filed the proceedings alleging Baki interfered with or failed to adhere to effecting the warrant issued by the District Court to effect the arrest of the Secretary of Treasury Dairi Vele when Baki allegedly consented to Vele's lawyer's application to stay his arrest.

Baki is claiming the sworn affidavit by Damaru in support of the Contempt of Court proceedings against him was false. In that Baki never issued instructions consenting to stay the warrant against Vele.
Two weeks earlier Baki issued instructions to the Officer-In-Charge of Special Police Internal Investigation Team Inspector Jacob Ivaroa, a team set up under Baki's authority to charge Damaru, Gitua and their lawyer McRonald Nale for allegedly committing perjury.

Perjury is a criminal offence under Section 121(2) of the Criminal Code. The provision (section) states that perjury is a person who in any judicial (court) proceeding, or for the purpose of instituting any judicial proceedings, knowingly gives false testimony concerning any matter that is material to any question then depending in the proceedings or intended to be raised in the proceedings, is guilty of the crime of perjury.
On 1st October 2015 Inspector Ivarora applied for the warrants of arrest before the District Court. This is because the law states no person shall be charged for perjury without first obtaining a warrant (approved order from the Court to carryout an arrest).

However Senior Magistrate Cosmar Bidar refused to hear the application and adjourned it back to the Court Registry. Bidar raised the point that the issues relate to the charges that are in relation to the Contempt of Court proceedings against the Police Commissioner that is currently before the National Court and the warrant of arrest against Secretary of Treasury Dairi Vele which is currently before the District Court, both matters are still pending in court.

Bidar ruled it was appropriate Vele’s application to dismiss that warrant of arrest against him is dealt with first before the application against Damaru, Gitua and Nale is heard.
Without a arrest warrant, Damaru, Gitua and Nale could not be lawfully charged.

It seems the Commissioner hell bent on securing Damaru's arrest has now gone ahead and ordered he be charged under a separate provision under the Criminal Code, Section 197 that does not require a warrant but only corroborated testimony (supporting evidence) of more than one witness.

I'ts my view Damaru would have sufficient grounds to file for Judicial Review, moving an urgent application to stay his arrest for an abuse of process. Commissioner has already initiated the process to bring charges against Damaru for perjury, a similar charge that raises the same issues and facts. The Court made a clear ruling the matters raised are currently before the Court rather than accept and respecting the ruling Commissioner has seen fit to bring further charges raising the same issues.

Which also can be construed as amounting to contempt of court by deliberately and intentionally interfering with the administration of justice.

The question now arises what's the rush in arresting Director of Fraud? It gives the impression his arrest is a ploy to give reason to suspend him, strategically removing him from the cases involving the Prime Minister.
Right now Damaru and Gitua's cases against the Prime Minister are gaining traction they have successfully fought off every effort by the Prime Minister and Commissioner of Police to have them removed.

The Supreme Court has set a date in early November to hear their application to remove the stay preventing the Prime Minister's arrest. Since that ruling the Minister of Finance James Marape with the support of the Prime Minister, Paraka Lawyers and Commissioner of Police and Attorney General are now seeking to remove the two judges that ruled in favor of Fraud. Furthermore the Commissioner has now moved to effect their arrest. It's important to note these events are giving rise to a growing public interest and there is a real concern and risk the public may just decide to way in on the issue by exercising their right to stage public protest.

Damaru has just been released on K500 police bail.