Turkana Governor Jeremiah Lomorukai has been dealt a blow, after losing his bid to stop arrest by the Ethics and Anti-Corruption Commission (EACC).
This is after high court judge Reuben Nyakundi ruled that the governor failed to demonstrate that the Commission has breached his fundamental rights to freedoms.
Reports emerged that EACC was pursuing a governor believed to have forged academic certificates.
EACC boss Twalib Mbarak had four months ago told MPs being inducted in Nairobi of an imminent arrest of a governor for violating the law.
“The Director of Public Prosecution has concurred with EACC recommendations to prosecute the governor,” said Mr Mbarak. He did not name the suspect.
He also shocked MPs when he disclosed that EACC had profiled governors and will prioritise investigations in county government based on corruption risks identified in financial management, procurement, and recruitment.
A week before then, Deputy President Rigathi Gachagua told investigators not to harass governors and instructed DCI to go back to their offices and wait for crimes to be reported.
The petitioner, Governor Jeremiah Lomorukai argued that he knows from watching the television and reading print media that the EACC CEO Twalib Mbarak gave an address on September 22, 2022, to the newly elected members of the National Assembly indicating that the governor was to be arrested.
Lomorukai argued that the sentiments by EACC CEO regarding his arrest were made in clear violation of the orders granted in the case that he had earlier filed before the Constitution court touching on the same issues that formed the basis of his arrest.
Due to the constant fear and apprehension of the impending arrest, the applicant further argued that he has not been able to perform his duties as the Governor of Turkana County. The Applicant also maintained that his rights and freedoms are protected by the Constitution of Kenya and that he should be free of harassment and threats of arrest while performing his duties as governor.
The governor contended that unless the orders sought are issued, then the ends of justice will be defeated to his detriment.
EACC’s case is that on January 27, 2017, it received a complaint alleging that the applicant who is the current Governor of Turkana County, irregularly and fraudulently acquired a Degree in Bachelor of Arts in Counseling from the Kenya Methodist University (KEMU).
EACC, which is the first respondent, further deposed that in the complaint it was alleged that the Petitioner who sat for the 1994 KCSE examination in Lodwar High School and had attained a C- (Minus) was not eligible to join University for an undergraduate course.
Through the investigations, EACC further established that the Governor had fraudulently obtained a degree certificate through the falsification and alteration of records at KEMU. That the fraudulently acquired certificate was used by the Applicant on March 6, 2017 in his self-declaration form that was used in securing his clearance from IEBC when he was vying for the position of Member of the National Assembly.
The Commission further deposed that upon concluding the said investigations and in accordance with Section 35 of the Anti-Corruption and Economic Crimes Act, it vide a letter dated November 23, 2021 forwarded a report to the second respondent, the Directorate of Public Prosecutions (DPP) with recommendations that the applicant be charged with forgery and uttering a false document.
Justice Reuben Nyakundi in his ruling found that there was no evidence as eluded by the Governor.
“The Applicant has further alleged that he has been receiving constant calls and threats from police officers of the 1st Respondent. He, however, has not tendered any evidence to support the said allegations. I agree with respect that the power conferred upon the respondents has not been abused or used mala- fides,” said the Judge.
According to the Judge, EACC was within its mandate.
“In my view by undertaking investigations, the Respondents herein were only carrying out their constitutional mandate under Articles 244 and 253 of the Constitution and cannot be curtailed by this Court if the so wish to bring charges of any kind against the Petitioner.
Further, the Petitioner save for being apprehensive about the impending arrest has not demonstrated to this Court any illegal or unlawful manner in which the Respondents might have undertaken the said investigations. It goes without saying that issues relating to the ripeness of infringement of the Bill of Rights as agitated by the petitioner remains in doubt.” said Justice Nyakundi.
The petition was dismissed by the High Court.
“The Petitioner contends that Respondents are acting upon an incomplete investigation to issue orders for his arrest. The Petitioner has not shown this Court his basis for believing that the investigations in question are in fact incomplete. In the end, I see no merit in the Petitioner’s application.
The Petitioner has failed to demonstrate that the Respondents have breached his fundamental rights to freedoms or that there exists any threat of his rights to warrant the grant of anticipatory bail. The Petition has no merit and I accordingly dismissed it.” Said Justice Nyakundi.