The high court is on Tuesday set to rule on a petition filed by the Director of Public Prosecutions Noordin Haji, and which may see National Land Commission (NLC) boss Muhammad Swazuri,Migori Governor Okoth Obado and his Busia counterpart Sospeter Ojaamong forced out of office until their cases are concluded.
The latest petition seeks to have Mr Swazuri and other State officers, including governors facing criminal charges, vacate office until their cases are heard and determined.
The Anti-Corruption and Economic Crimes Division in the High Court is expected to deliver a ruling on Tuesday, December 4, in HC. ACEC REV/13/2018, which could also have an impact on other high profile cases, including those of Mr Obado and Mr Ojaamong.
This comes as the DPP is also lobbying Parliament to amend the Anti-Corruption and Economic Crimes Act (ACECA) to do away with provisions that guarantee public officials half their salaries and full allowances when they are on suspension after being charged.
Instead, he wants the government to stop salaries, allowances and other benefits that come with the office the suspects hold for the duration of the case.
The move, he says, will bring fairness on the way suspects are treated.
“My argument is, people should be suspended and their benefits stopped. Once they go through the process and they are found innocent, they can go back and the government then pays them the lump sum that is owed to them,” he said.
The matter of complete freezing of salaries is not in court, as Mr Haji says it requires an amendment of the law.
"That issue will need an amendment of the law so that when they step aside, no allowances are given. As it stands, the law requires that they be paid half their salaries,” he said.
In the case coming up for ruling on Tuesday, the DPP sought an interpretation of the act, particularly the definition of a "public officer" as used in Section 62 and 63 of the act, as he seeks to tighten the noose on public officials accused of corruption.
This was after the High Court reversed anti-corruption court chief magistrate Lawrence Mugambi’s order that required Mr Swazuri to stay out of office after he was charged alongside others for causing the loss of Sh221 million belonging to Kenya Railways Corporation.
He argues that a public officer and a State Officer are one and the same thing, as per Article 260 of the Constitution.
Section 62 (1) of the Anti-Corruption and Economic Crimes Act provides that “a public officer or state officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge until the conclusion of the case”.
But Section 62(2) then gives constitutional commissioners and elected officials a blanket protection from being asked to step aside by providing that the requirement for stepping aside “does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated”.
A ruling in favour of the DPP could be monumental as it will require all those previously shielded from the requirement to step aside upon being charged, just like other public officers who have proceeded on suspension.
In the matter before Justice Hedwig Ong'udi, Mr Haji argues that the Anti-Corruption and Economic Crimes Act as currently is, treats constitutional commissioners and elected leaders differently as there is no provision in law that requires them to step aside once they are charged.
For elected state officers and constitutional commissioners, the laws relating to their terms only recognises removal from office, which is a tedious, expensive and highly-charged political process.
In the case of the governors, removal requires members of the county assembly to bring a motion against the governor stating the grounds for his ouster.
Even then, the Senate retains a final say and has used that to save Governors Martin Wambora (Embu) and Paul Chepkwony (Kericho).
Meanwhile, for constitutional commissioners, the only way for their removal is through a tribunal, an expensive process that requires a lot of time.
The conflict in law has seen constitutional office holders like Mr Swazuri, Mr Obado and his Busia counterpart go back to their offices after being released on bail.
Mr Obado has been charged in different matters; first with the murder of Rongo University student Sharon Otieno and her unborn child, for which he spent more than a month in remand.
He was released on October 24 on a Sh5 million cash bail and two sureties of Sh5 million each.
He was also ordered to deposit his travel documents, including all his passports, in court.
Weeks after, he was arrested and charged after police found eight firearms in his Nairobi and Migori homes.
He was released on a Sh500,000 bond with surety of a similar amount or Sh200,000 cash bail and ordered not to interfere with ongoing investigations.
On his part, Mr Ojaamong has been accused of defrauding the county government of Sh8 million.
Like his Migori counterpart, he is out on bail and going about his duties as governor without hindrance.
Soon after their release on bail, both governors embarked on staff re-organisation at the offices, including sacking some workers for various reasons, including "disloyalty".
Such actions, it is feared, could be used to intimidate witnesses, especially where economic crimes are involved.
On the other hand, non-constitutional office holders who have been charged with corruption are all out on suspension.
They include recent diplomatic appointee Hassan Wario, former Sports Principal Secretary Richard Ekai, as well as top officials of Kenya Power, National Cereals and Produce Board (NCPB), National Hospital Insurance Fund (NHIF) and Kenya Railways, who were charged with various offences including abuse of office, corruption and obstruction of justice.
Similarly, Justice James Wakiaga, when granting TV journalist Jacquie Maribe bail, barred her from reading news, effectively confining her to a court-enforced suspension from work.
“The accused shall not read news during the period this matter is fixed for hearing,” Justice Wakiaga said in his bail ruling of October 30.
In a recent interview with Citizen Television, Mr Haji, while publicly accusing the Judiciary of frustrating the fight against corruption, pointed at the lenient bail terms given to high profile suspects.
“We have charged individuals, be they governors, constitutional office holders or the Deputy Chief Justice (Philomena Mwilu) herself. My concern is that most of them still remain in office and the sad thing is that we still have orders to allow them to enjoy whatever is coming from the courts,” he said.