Double jeopardy last week rocked the Goldenberg inquiry into the massive loss of public funds between 1990 and 1993.

As the commission closed its 88th sitting on Thursday, the complex transactions that have hitherto boggled the minds of ordinary Kenyans and legal minds in the corridors of justice for well over 10 years were beginning to make sense.

And then, just when Kenyans began to celebrate Ð witnesses like Mr Melville Smith had reconstructed from scratch evidence to show that collapsed Exchange Bank has cost the economy Sh50 billion to date, and Prof Terrence Ryan tried to prove possible fraud in the Goldenberg saga - the thunderbolt struck.

For some time, Court of Appeal Judge Samuel Bosire who chairs the commission, and his assisting counsel, Dr John Khaminwa and Dr Kamau Kuria, have been at loggerheads.

Sporadic verbal exchanges have popped up in the course of proceedings, leaving observers bewildered.

But as the saying goes, problems never come singly. What has all along appeared to be a smooth inquiry exploded into a full-scale internal battle last Thursday. The commission's tough talking, firm and generally accepted as morally upright chairman, Mr Justice Bosire, was on the firing line from Dr Khaminwa and Dr Kuria.

And the exposure of the simmering antagonism was untimely too. The commission was freshly smarting from the suspension of its vice-chairman, Mr Justice Daniel Aganyanya.

Mr Justice Aganyanya is among the 23 judges suspended over allegations of corruption. As the inquiry came to terms with his suspension, Mr Justice Bosire adjourned the proceedings to Tuesday (ostensibly to give time to President Kibaki to appoint a replacement for Mr Justice Aganyanya) when the two senior lawyers struck.

The arrival into the country on Monday of Dubai-based businessman Nassir Ibrahim Ali, brought to the climax of the simmering differences between the commissioners and assisting counsel.

Mr Ali, who is a Canadian citizen, was deported by the Kanu government in 1999 at a time when he lost a spirited fight over the control of his World Duty Free Shops in Nairobi and Mombasa airports with powerful figures in that regime.

In the words of Dr Khaminwa, Mr Ali is a "prized state witness" because when he takes to the stand, he will tell the commission whether Goldenberg International actually exported any gold and diamond jewellery to his World Duty Free company in Dubai between 1990 and 1993. 

But when Dr Khaminwa sought to have Mr Ali take to the stand on Wednesday, Mr Justice Bosire rejected the application on the grounds that he did not wish to have the 69-year-old Prof Ryan stepped down before concluding his evidence.

But at the close of proceedings on the same day, Dr Khaminwa renewed his application, which was again turned down after 20 minutes of verbal exchange with the commission chairman.

Technically, since Mr Justice Aganyanya's suspension had been announced by Thursday morning, proceedings could not take off. But Dr Khaminwa was again on his feet renewing his application.

Although the rules set our by the commission clearly stipulate that it is the duty of the assisting counsel to adduce evidence and produce witnesses, it is unclear why Dr Khaminwa and Dr Kuria would make arrangements to interview Mr Ali and have him jet into Kenya without the agreement of Mr Justice Bosire or the entire commission.

As matters stand, one plausible explanation is that the mutual suspicion had grown to such a level that the commission and its own assisting counsel could not work in tandem.

Sources say that there could be more than meets the eye and what happened on Thursday is just the gathering of the storm. Prof Ryan put it more bluntly: "This thing (Goldenberg) got on to us and, I hate to say, our grandchildren as well."

Assuming the good macro-economics professor is right and the current generation of Kenyans and the next two will spend a sizeable portion of their income paying for the misdeeds committed within three years, then a good explanation is the least that the taxpayer deserves. 

Underlying the assisting counsels' accusation is the suspicion that Mr Justice Bosire has been protecting retired President Moi and his close associates who have been implicated in the scandal.

Mr Mutula Kilonzo, the lawyer who represents the former President at the inquiry, told the Sunday Nation: "I do not need Mr Justice Bosire's assistance to make Mzee's (Moi's) point at the inquiry. If they think that this will frighten us, they are mistaken and if they want politics, they should say so. I think it is ridiculous for the counsel to burst into the commission with witnesses."

The Law Society of Kenya chairman Mr Ahmednasir Abdullahi is urging caution. "As LSK, we are concerned, from a purely professional stand point, by the altercation of harsh words between a senior judge and assisting counsel. I fault Mr Justice Bosire because he should be able to accommodate witnesses... especially someone like Nassir Ibrahim Ali, who is likely to mention prominent people."

The LSK chairman called for Mr Justice Bosire and the assisting counsel to stop working at cross-purposes. "The assisting counsel should give the judge utmost respect as well," he said.

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