To step aside or not to, that is the question for graft suspects

Lawyers are divided about High Court rulings on whether public officers facing criminal cases ought to be barred from office until they are cleared.

Critics argue that last week’s ruling by High Court Judge Mumbi Ngugi that blocked Samburu Governor Moses Lenolkulal from accessing his office until the conclusion of a corruption case against him exposed double standards in the country’s justice system.

They point at another ruling by the High Court in 2013, which dismissed an attempt to block Uhuru Kenyatta and William Ruto from vying for the presidency on account of the cases they were facing at the International Criminal Court (ICC) in The Hague.

In the 2013 decision, the five-judge bench cited the principle that an accused person is presumed innocent until proved guilty to dismiss the application to block the two who went on to win the election.

Defenders of last week’s ruling argue that the circumstances under which the two rulings were made are different and that nothing stops a court from reviewing its ruling to factor latest developments.

Justice Mumbi made the ruling barring Lenolkulal from accessing county offices without prior written authorisation from the head of Ethics and Anti-Corruption Commission (EACC).

Lenolkulal is facing charges for alleged contravention of the Anti-corruption and Economic Crimes Act.

Legal experts will be keen to see whether similar orders will be issued against Kiambu Governor Ferdinand Waititu who is facing graft-related charges

The governor is accused of conflict of interest and dealing with suspect property.

Constitutional lawyer Bobby Mkangi supported Justice Mumbi’s orders, saying courts could review their rulings.

“If courts review their previous rulings, then the latest stands until it is reviewed again. Therefore, on this, Justice Mumbi’s ruling stands and holds on the matter at hand until it is reviewed by the same or higher court,” said the law expert.

He said rulings are made based on the prevailing circumstances and should be understood in unique contexts.

Former Law Society of Kenya (LSK) CEO Apollo Mboya agreed with Mkangi, saying the courts could review their rulings, which should be viewed in their individual contexts.

But lawyer Harrison Kinyanjui faulted Justice Mumbi’s ruling and accused Judiciary of lack of policy and clarity in rulings.

“If we juxtapose Justice Mumbi’s rulings against the five-judge bench in the Uhuru and Ruto case, we find she erred in this one. In law, a majority ruling outweighs an individual’s,” he said.

He argued that the contradictory rulings by the Judiciary were confusing.

“As a legal practitioner, I am in a quandary and confused. This is the same court that issues a favourable ruling for Uhuru and Ruto, (and now) wants governors barred from offices,” he said.

Makueni Senator Mutula Kilonzo Jnr backed Justice Mumbi’s ruling, saying it was in line with the Constitution.

“The law that prohibits public officers from acting as such during criminal proceedings should apply similarly to State Officers. The proposals to have governors suspended from their offices is based on a known principal,” said Mutula.