Several governors risk being kicked out of office if Director of Public Prosecutions (DPP) Noordin Haji succeeds in enforcing a High Court ruling compelling county bosses facing corruption charges to vacate office for the entire duration of their cases.
To start with, the Sunday Nation has learnt that the DPP is planning to move to court to seek a review of bail terms given to Busia governor Sospeter Ojaamong, who has an ongoing corruption case in light of the July 24 High Court ruling which concluded that governors charged with economic crimes should vacate office for the duration of the trial.
By seeking a review of Mr Ojaamong’s bail terms, the DPP is exploiting a directive issued last week by a magistrate’s court barring embattled Kiambu governor Ferdinand Waititu from stepping into his office until his case is heard and determined.
Highly placed sources in the DPP’s office told the Sunday Nation that a favourable ruling in Mr Ojaamong’s case would pave the way for the enforcement of the ruling by Justice Mumbi Ngugi on other governors facing corruption cases.
Contacted, Mr Haji chose to play his cards close to his chest, declining to confirm or deny his impending crackdown on county bosses accused of corruption.
“That is my secret. If I tell you, those people will start scheming against us,” he said.
However, the Sunday Nation also learnt that the governors, alarmed by the fall of their two colleagues, Mr Waititu and Samburu’s Moses Kasaine Lenolkulal, who have been barred by the courts from stepping into their offices until their cases are heard and determined, plan to file a case in court this week with a view to ultimately overturning the ruling.
The council chaired by Kakamega Governor Wycliffe Oparanya has tasked its legal team to explore the possibility of filing a constitutional petition before High Court’s Constitutional and Human Rights Division to seek an interpretation of the constitution on whether governors should be required to step aside like other public officers once they are charged with economic crimes.
Mr Oparanya terms the ruling “populist”. “We have asked our lawyers and the CoG legal committee to look at the ruling and give us a way out," said Mr Oparanya yesterday. The Sunday Nation has learnt that the petition could be filed as early as this week.
High Court judge Mumbi Ngugi on July 24 held that Section 62(6) of the Anti-corruption and Economic Crimes Act (ACECA), which has been shielding State officers from stepping aside once charged with an economic crime, was unconstitutional.
She argued that governors, like other public officials, should step aside once charged with a criminal offence and their roles completely taken over by their deputies for the duration of the trial. She was ruling in an application by Mr Lenolkulal, who wanted his bail terms reviewed after the trial court barred him from accessing his office for the duration of his trial for alleged corruption.
“It seems to me that the provisions of section 62(6), apart from obfuscating, indeed helping to obliterate the ‘political hygiene’ … are contrary to the constitutional requirements of integrity in governance, are against the national values and principles of governance and the principles of leadership and integrity in Chapter Six, and undermine the prosecution of officers in the position of the applicant (Governor Lenolkulal) in this case. In so doing, they entrench corruption and impunity in the land,” the judge stated.
As a result of the ruling, a number of governors who are under Ethics and Anti-Corruption Commission (EACC) and Directorate of Criminal Investigation (DCI) radar over allegations of corruption are living in fear.
Migori County, whose governor Okoth Obado has a pending criminal case of the murder or Rongo University student Sharon Otieno and her unborn baby and a separate gun possession case, has been under investigations over allegations of corruption and the governor and his immediate family prominently feature in the allegations.
In Garissa County, whose governor is Ali Korane, the DPP has directed the police to investigate allegations of mismanagement and misappropriation of county funds. It is the same for ailing Homa Bay governor Cyprian Awiti as EACC has been camping at the county offices for some time now. Others whose counties are under investigation are Mohamud Ali (Marsabit), Muthomi Njuki (Tharaka Nithi), Mwangi wa Iria (Murang’a) Charity Ngilu (Kitui) and Granton Samboja (Taita Taveta).
There is fear among governors that the ruling could be exploited by their political rivals and deputies (in counties where pre-election friendship has broken down) to kick them out of office. In Kiambu, deputy governor Dr James Nyoro has already taken over the operations of the county and maintained he is the new boss as long as governor Waititu is away.
But yesterday, Mr Waititu vowed to chair meetings with his ministers on Tuesday this week. He spoke after touring a hospital.
Lawyer Peter Wanyama, who is involved in the CoG petition, told the Sunday Nation that their problem with the ruling is that “its implementation will be problematic”.
“The ruling is extremely confusing and that is why we need an interpretation. The reason Section 62(6) was included in the ACECA is because of the unique nature of the job governors do and how they get to occupy those offices. They are products of a certain political process,” said Mr Wanyama.
The lawyer said that as it stands, it is a judicial coup for the courts to order governors to stay away from office once they are charged.
“It is actually a constructive removal from office yet the person has not been convicted. It is a judicial coup not anticipated in law,” he said, adding that the procedure for removing a governor from office is in the constitution.
DPP Haji, who has been pushing to have the contentious Section 62(6) of the ACECA repealed, however, says the way Justice Ngugi interpreted it is the way it should be.
“For us, our interpretation from the beginning has been the way Justice Mumbi Ngugi interpreted it. I know the CoG has set up a kitty and they are going to use a lot of people to fight us. But we have nothing to worry about. We are ready and will defend our position. It will be up to the court to interpret,” said Mr Haji.
Among the many criticisms of the July 24 ruling is that it goes against the principal of a suspect being perceived innocent until otherwise proven guilty.
“These governors have not been convicted of any crime yet the court wants them to be seen as guilty. Uhuru Kenyatta and William Ruto were allowed to contest in the 2013 elections despite the fact they were at the time facing serious charges of crimes against humanity at the International Criminal Court (ICC),” said Mr Wanyama.
Lawyer Kamotho Waiganjo however says Justice Ngugi’s ruling has been grossly misunderstood. “She actually did not declare the section unconstitutional because what was before her was a pure application for review of bail terms for the Samburu governor. It is within the context of considering that application that she then went into a discussion about that section,” he said.
Be that as it may, Mr Waiganjo says he agrees with the underlying principle of the decision.
“I don’t think we should make a distinction between a public officer and a state officer. My view, however, is that there are certain practical problems that arise. Very many issues were not considered including the process question. The deputy governor carries out his responsibilities by virtue of authority from the governor. He does not have an independent right to executive authority. But in this case he will not be getting any such authority,” he said.
Additional reporting by Kennedy Kimanthi