Governor Wa Iria arrest bid: Is it politics or pure malice?

Details of the controversial arrest and intended prosecution of Murang’a Governor Mwangi Wa Iria have emerged.

The Governor has fallen victim of political machinations by prominent and well-connected politicians interested in ousting him as the county chief.

The Standard on Saturday has pieced together an intricate web that would have seen the Governor stand in the dock over a matter that the High Court had dealt with in 2013.

On Wednesday at exactly 9am, Wa Iria got a reprieve after High Court Judge Mumbi Ngugi restrained the Office of the Director of Public Prosecution (DPP) from arresting and prosecuting him. The matter is set for hearing on June 8.

Two hours later, another High Court Judge Ngenye Kariuki quashed a case the Ethics and Anti-Corruption Commission (EACC) and the DPP were depending on to hurl the Governor to the dock. The 2012 conviction against him was quashed.

Major questions surrounding this controversy include why did the DPP approve prosecution on a matter the High Court had already determined, why did EACC recommend prosecution over a document that IEBC, the constitutional body mandated to receive the self-declaration form had no qualms about? The matter arose in 2012, so what was the urgency in arresting and prosecuting the Governor?

The Governor believes the process was maliciously propagated by a local Member of Parliament who played a key role in the formation of the Jubilee Alliance Party (JAP).

Sometimes in 2010, Wa Iria was accused of issuing two cheques that would later be dishonoured by the bank for insufficiency of funds.

Maliciously propagated

The cheques were meant to cater for payment of at least 400 bags of maize that a company associated with Wa Iria had purchased from one Esther Wamaitha Njogu.

The court then ruled that Wa Iria and his co-accused James Ndungu were culpable and they were each fined Sh400,000 or serve a sentence of six months in prison.

The Governor settled the fine with two cheques dated August 3, 2012 and proceeded to appeal the ruling in the High Court.

But early 2013, two petitioners Patrick Muguro Mwangi and Francis Mbau Muiruri filed a petition challenging the nomination of Francis Mwangi (Mwangi Wa Iria) by The National Alliance (TNA) to contest Murang’a county gubernatorial seat.

The petitioners’ contention was that Wa Iria was unqualified to run for election as the Governor for Murang’a County on account that he had been charged and convicted of obtaining goods by false pretence.

But Justice Isaac Lenaola dismissed the petition as an abuse of the court process.

“Is the 3rd respondent (Mwangi Wa Iria) by fact of conviction and sentence alone disqualified from running as governor? Clearly not because article 193 (3) was enacted to apply to persons in his situation and for good reason,” Justice Lenaola said.

Indeed, Justice Lenaola further said the cost of the petition would be paid by the petitioners because in his words, ‘they were not pursuing a noble constitutional cause but they were pursuing personal interest against the interest of the 3rd respondent (Mwangi Wa Iria)’.

Speaking to The Standard on Saturday, DPP Keriako Tobiko sought to distance his office from allegations of malice saying he was unfairly being dragged into politics of the matter.

“I make my decisions based on facts, evidence and the law and they should not drag me in their politics. I am not interested in politics,” said Tobiko. “They have filed a constitutional petition, it has a date and we will have our opportunity to respond but I don’t think it is fair to ventilate these issues here having chosen the proper forum that is the court where all these issues will be ventilated,” he added.

Interestingly however, EACC used the same issue to develop a case against the Governor and proceeded to recommend his arrest and prosecution, a request the DPP Tobiko granted.

“Inquiry into allegations that the governor swore a false declaration form set out in the first schedule under the leadership and integrity act of 2012 and submitted the same to ethics and Anti-corruption Commission,” EACC complaint reads in part.

According to Section 13 (2) of the Leadership and Integrity Act, it is only IEBC that is legally mandated to receive the said self-declaration form.

IEBC did not complain to EACC or any other body for that matter in regard to the contents of Wa Iria’s self-declaration form.

The section reads, ‘A person who wishes to be elected to a state office shall, for the purpose of this section, submit to the IEBC a self-declaration form in the form set out in the First schedule.’

This raises fundamental questions as to how EACC would prefer charges against an individual over a form which the commission has no legal obligation to receive and particularly in a situation where the legal entity in this case IEBC obligated to receive the said document had no complain about the form.

Collateral purpose

“The intended prosecution was malicious, oppressive and a witch-hunt. There is demonstrable malice in the complaint by EACC as they could not have been possibly misled by information that was not supplied to them. In the circumstances, its impartiality and independence is questionable,” said Wa Iria’s advocate Mbugua Ng’ang’a.

“The decision by the DPP to approve recommendation for prosecution of the governor is not bonafide, is an abuse of process and intended to achieve a collateral purpose,” he told The Standard on Saturday.

“We know the DPP knew there was going to be a judgement on our appeal on this matter because he was one of the parties yet he approved his prosecution a day before the ruling,” added Mbugua.

On Wednesday, Justice Ngenye Kariuki dismissed the case as an abuse of the court process. Section 157 (11) of the Constitution prevents the office of the DPP from abusing legal processes.

The section reads in part,’In exercising the powers conferred by this Article, the DPP shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.”

Efforts to secure a comment from EACC were unsuccessful as Chief Executive Halakhe Waqo could not be reached on his cell phone.