Kiambu Governor Ferdinand Waititu is back in court Monday morning seeking to vary an order barring him from accessing his offices.
Justice John Onyiego directed Mr Waititu’s defence team and the prosecution to appear before the duty judge this (Monday) morning and argue the application.
Director of Public Prosecutions Noordin Haji has opposed the application, stating that the Kiambu governor should stay away from office as directed by trial magistrate Lawrence Mugambi.
Over the weekend, Mr Waititu inspected projects in the county and insisted that he is still in charge and will execute his duties.
The move sparked an online debate with lawyers differing on whether the order barred him from the Kiambu County offices only and whether he can execute his mandate from another location.
“Since Babayao is barred from accessing the Governor's office in Kiambu, I offer the considered LEGAL Opinion that he can open a new office in Limuru or Thika or Gatundu or Kikuyu or Kiambaa & continue discharging his constitutional duties as Governor of Kiambu,” tweeted lawyer Ahmednassir Abdullahi.
He added, It's the person of Babayao that was elected governor of Kiambu not the office in Kiambu...the address of the governor can always be changed.”
On his part, Prof Makau Mutua said, “It’s not enough for Kiambu Governor Waititu to be barred from office. He must resign.”
In a reply to the application for review of the bail terms, the DPP, through Senior Assistant DPP Alexander Muteti, argued that section 62(6) of the Anti-Corruption and Economic Crimes Act (ACECA) is unconstitutional to the extent that it discriminates against state officers in the enforcement of Chapter Six of the Constitution.
“That the order barring the applicant from accessing his office is constitutionally permissible since section 62(6) is invalid to the extent that it is inconsistent with the Constitution in accordance with Article 2(4) of the Constitution,” reads the application.
The accused persons, led by Mr Waititu, filed the application before the High Court seeking a review of their bail terms, even though most of them have secured their release.
Only two, Mr Luka Mwangi, who was ordered to deposit Sh15 million cash bail to secure his release, and Charles Chege are yet to be released.
Through Prof Tom Ojienda, Mr Waititu said the directive barring him from accessing the Kiambu County offices effectively removes him as a governor in violation of Section 62(6) of the Anti-Corruption and Economic Crimes Act and Section 33 of the County Governments Act, 2012.
Section 62(1) of the ACECA provides that a public or state officer who is charged with corruption or economic crime shall be suspended at half pay until the conclusion of the case, so long as the case is concluded within two years.
However, Section 62(6) of ACECA says that the above section does not apply to an office where the Constitution limits or provides grounds for the removal of the office holder or circumstances in which the office must be vacated.
Article 181(2), 182(d) and Section 33 of the County Governments Act, 2012 provides the process in which a governor may be removed from office.
Samburu Governor Moses Lenolkulal was also barred from accessing his office after High Court Judge Mumbi Ngugi upheld a decision locking him out.
The judge ruled that Section 62(6) ACECA, in her view, violates the Constitution.
She said the law is against provisions of the constitutional requirement of integrity in governance and against the national values as well as principles of leadership and integrity.
"Would it serve the public interest for him to go back to office and preside over the finances of the county that he has been charged with embezzling?" the judge posed.
Mr Lenolkulal has since filed a notice seeking to overturn the decision.
It is the ruling on Mr Lenolkulal that informed the ruling by Magistrate Mugambi’s decision to bar Mr Waititu from office.