THE LALIVE attorney who the government hired to draft a Mutual Legal Assistance (MLA) on its behalf at the height of the Anglo-leasing investigations was taken to task concerning the challenges that arose out of the arrangement.
Dr Marc Henzelin got the Power of attorney in 2007. He admitted he got to know from a Swiss website, the authority of KACC to issue the Power of Attorney had been challenged.
The high court in December 2017 ruled that it was not within KACC mandate to issue such powers.
Dr Marc Henzelin said he prepared a total of 8 letters in respect to the task he had been mandated to perform in close consultation with the then Kenya anti Corruption Commission(KACC), now EACC and sent them to Kenya but of which a prerequisite request from the latter would not be tabled in court to buttress his evidence.
He confirmed he was the author of the MLA which was printed on Geneva Bar Association letterheads, but he explained he picked the format up from a template.
Again the legality of his appointment to represent Kenya was tested and he concurred he was aware there were legal challenges concerning the legitimacy of KACC now EACC to request such assistance.
The witness said he was forced to seek a second opinion from the Attorney General after the challenge arose and on whose sanction he proceeded to act for Kenya.
Drafting the letters
A defence lawyer pointed to him that a court had overruled KACC and neither did the constitution allow the AG to donate such powers(read Mutual Legal Assistance), but Dr Henzelin said he acted on “trust” and did not perform any further due negligence after receiving a cover letter from the AG allowing to engage in the litigation.
Defence lawyer Carren Sadia, while cross examining the witness on behalf of Sc Ahmednassir Abdullahi who traveled to overseas, told the witness he may have had a personal interest in the matter, what with him drafting the letters only to be signed by the Kenyan counterparts and lobbying that his firm be appointed for the assignment, a thing he denied vehemently.
“We had the power from the KACC and the AG and therefore there would be no problem…” the witness said.
He said with the second approval from the AG ” we had killed all controversy over who would ask for Mutual Legal Assistance from Switzerland,” Dr Henzelin said.
The witness, who defence lawyers cross examined intensely concerning the custody of the case documents, at one time losing his temper and had to be reminded to “cool off”‘ also failed to produce a handing over letter from the Federal prosecutors after he said all documents came to him from the prosecution side.
He said he may have forgotten it in his hotel room.
A second request
Dr Henzelin said the Geneva Bar Association had no mandate to clear him to give evidence in the case.”The only authorisation I need is authorisation from my client,” the witness said.
He said he was entitled to give witness testimony without the authority of the Geneva Bar Association.
However, lawyer Duncan Okubasu pointed out that the impugned power of attorney was printed on letterheads bearing the Geneva bar Association of which former KACC boss Aaron Ringera and former AG Amos Wako, who signed the document(s), were not members.
Dr Henzelin confirmed legitimacy issues provoked him to make a second request after the high court ruling that barred KACC(EACC) from seeking MLA came to his knowledge.
“I had no direct sentiments at the time…in order to make sure that my powers were covered I wrote to the attorney general,” the witness said.
Asked whether the power of attorney gave him a blanket cover to prosecute in any other jurisdiction, he said the power was linted to filing criminal cases in Switzerland only on behalf of Kenya.
Dr Henzelin said the power of attorney was not drafted by the AG or EACC but by his firm and forwarded for signing but there was room for the client to delete whatever was unpleasant.
He said he did not know “the AG did not have authority to donate the powers that he did.”
Cut through bottlenecks
Dr Henzelin said the AG himself was best placed to know what was within limits in regard to Kenyan law.
“I trusted the attorney general on the interpretation of the constitution without making specific investigation on Kenyan law,” the international litigation consultant lawyer said.
He said he was introduced to the assignment by a UK based lawyer who had been handling other matters for the government in Britain.
Dr Henzelin said it was possible to deal with the Swiss government directly but he only came in to cut through the bottlenecks that Kenyans would have faced in the foreign country.
Asked if there was a conflict of interest as he had been part of the judicial system in Switzerland and now an attorney for Kenya hence prejudice, the witness answered in the negative.
Hewas a judge at the Supreme court at the time his law firm had instructions in the Firs Merchantile case against Kenya.
During the same period, the trial court heard, he also was under instructions and acted on behalf of Kenya in collecting documents for the Sound Day and other Angloleasing cases.
He however acknowledged he prepared letters on behalf of the government and sent them for approval.