Justice Mumbi Ngugi’s July 24 ruling that governors charged with economic crimes vacate office for the duration of their trial, does not bode well for Kiambu governor Ferdinand Waititu.
The Director of Public Prosecutions (DPP) Noordin Haji on Friday evening directed that the Kiambu governor and 12 other individuals and companies be charged with irregular procurement of a Sh588 million tender for upgrading of various gravel roads to bitumen surface in Kiambu County.
Some of the suspects namely Charles Mbuthia Chege, Joyce Ngina Musyoka and Simon Kabacho Kangethe, were arrested early Saturday morning but Governor Waititu and his wife Susan Wangai Ndung'u, among others, were still at large.
They are expected to be charged Monday with various counts of conflict of interest, dealing with suspect property, abuse of office, wilful failure to comply with the law relating to procurement, engaging in fraudulent practice in procurement, fraudulent acquisition of public property, and money laundering.
But even as Mr Waititu will be charged as expected, Justice Ngugi’s ruling will be weighing heavily on the governor’s mind as he could be barred from his office as well as running the county affairs for up to two years.
Once he is charged, he will be required to stay away from office for the duration of his trial which could last years. Effectively, Mr Waititu’s deputy Dr James Nyoro would be taking over the running of the county. Dr Nyoro and Mr Waititu have had turbulent relations since they were elected on August 8, 2017.
In the ruling, Justice Ngugi held that governors like other civil servants should step aside once charged for 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 Samburu governor Moses 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.
She also termed section 62(6) of the Anti-corruption and Economic Crimes Act (ACECA) protecting State officers from stepping aside from office while under prosecution for criminal charges, unconstitutional.
The judge added that Kenyans could not have adopted a new Constitution in 2010 that is clear on Leadership and Integrity as well as National Values and then, through parliamentary legislation, allow state officers “to ride roughshod over the integrity required of leaders, face prosecution in court over their alleged corrupt dealings, and still continue to enjoy the trappings of office as they face corruption charges alleged to have been committed while in office and committed within the said offices."
The High Court ruling came as Mr Haji has also been pursuing an appeal at the Court of Appeal to cure an "apparent discrimination" in law that allows the immediate suspension of public officers, not State officers, charged with criminal offences. In light of Justice Ngugi’s July 24 ruling, the DPP said he was studying the new development before deciding whether or not to proceed with the appeal he was pursuing.
The High Court ruling is monumental as governors and other State officers who have always used the opaque definition of ‘public officer’ to carry on with their work despite being charged could also be forced to stay away from office if the DPP approaches the courts to seek reviews of their bail terms.
Governors Okoth Obado (Migori) and Sospeter Ojaamong (Busia) were charged with various criminal offences but then released on bail and allowed to go back to their offices. Mr Obado has been charged in different matters; first with the murder of Rongo University student Sharon Otieno and her unborn child, for which the Migori governor 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 his release on bail, he was arrested and charged after police found eight firearms in his Nairobi and Migori homes. On his part, Mr Ojaamong has been accused of defrauding the county government of Sh8 million. Like his Migori counterpart, he too is out on bail and going about his duties as a county governor without a hindrance.