Court deals heavy blow to governors facing graft cases
By Paul Ogemba and Nehemiah Okwembah
| December 21st 2019
Governors charged with corruption edged closer to their Waterloo yesterday when the Court of Appeal upheld a High Court decision to lock them out of their grand offices until conclusion of their cases.
In a move hailed as a step up on the purge against corruption, the court said Kiambu Governor Ferdinand Waititu and his Samburu counterpart Moses Lenolkulal will remain suspended until corruption cases facing them are concluded.
It is a decision that was awaited eagerly by their 45 counterparts, including Nairobi Governor Mike Sonko who was charged with corruption last week. Appellate Judges Daniel Musinga, Agnes Murgor and Gatembu Kairu had no respite for them when they ruled that the need to safeguard resources outweigh individual rights to access their offices.
“We find nothing wrong with the lower court’s decision to bar the governors from accessing their offices. As much as it will be inconveniencing to them, we find that it is necessary to impose the conditions to safeguard public resources and the court’s integrity,” ruled the judges.
Undoubtedly, the decision send shock-waves among the governors club and one wing of Jubilee party, but was hailed by the Office of Director of Public Prosecutions (ODPP), Law Society of Kenya (LSK) and civil society groups.
At Temple Point hotel in Watamu, Kilifi County, where he was opening a conference on tackling violent extremism, DPP Noordin Haji was over the moon, describing it a victory and warning that more heads will roll
“It’s a landmark decision which will aid in guarding the country from runway impunity. A lot of people were blaming us, saying we were overstretching our mandate in the interpretation of the Constitution. We are happy the court’s have confirmed this,” he said.
LSK President Allen Gichuhi said they were happy with the Court of Appeal decision as the courts have now come out in full force to implement Chapter Six of the Constitution on Leadership and Integrity.
“It is not that we don’t have adequate laws to fight corruption, our problem has been implementation. I am happy the Judiciary has taken a positive step in instilling integrity, and I am optimistic that even the Supreme Court will do the same if they appeal,” said Gichuhi.
The International Center for Policy and Conflict (ICPC), the group that unsuccessfully tried to stop President Uhuru Kenyatta’s 2013 ticket on integrity grounds, described the ruling as the best momentum in ending impunity and corruption in Kenya.
“Any state officer charged in court lacks character and integrity and must fully understand that the conduct of state officers in private and public is very central in determining whether they have the required integrity and suitability to hold office,” said ICPC Director Ndung’u Wainaina.
But it was not all praise. Senate Legal Affairs and Human rights committee chair Senator Samson Cherargei faulted the decision, saying it set dangerous precedence as it relates to presumption of innocence.
“The fulcrum of the Judiciary is usurped by the Executive which is stamping its authority. The attacks against the Judiciary by the Executive have instilled morbid fear and the Appellate court ruling was to please the government,” claimed the senator.
He accused the court of failing to give clear distinction between absence of governor from office and vacancy in the office, and that it is devolution which is under attack from the Judiciary, rogue MCAs, National Treasury and the Executive.
In their decision, the judges said it will be wrong to allow the governors to set foot in the same offices they are accused of committing the crimes and interact with the same witnesses who are their juniors and scheduled to testify against them.
“It was not farfetched to conclude they will interfere with witnesses and evidence if not barred from offices. There are documented evidence of disappearance of exhibits and witnesses during the pendency of a case,” they ruled in the decision read on their behalf by Justice Mohammed.
Whereas the decisions came as a shock to both Waititu and Lenolkulal with their lawyers contemplating whether to move to the Supreme Court, senior State prosecutor Alexander Muteti immediately hailed the judgement.
“It is a great day for the country in the fight against corruption. It proves that no one should be shielded from prosecution on account of being a constitutional office holder,” said Muteti.
For Waititu, the court’s decision was a further blow coming just a day after the Kiambu County Assembly voted overwhelmingly to impeach him.
The Appellate judges upheld the decision that he should not set foot in the county offices to ensure he doesn’t use his influence to interfere with the case.
On the issue of a vacuum being witnessed at the counties due to the governors’ absence, the judges said the constitution already has a provision for deputy governors to take over functions of running county affairs in the absence of their bosses.
“There is absolutely no fear of vacuum in leadership in the absence of a governor. We have had instances where the governor is having ill-health and their deputies take over. The law provides that the deputies can run the affairs if the governor is absent,” ruled the judges.
They however stated that barring the governors did not amount to removal from office since they are still entitled to their salaries and benefits, and that the suspension was only for a limited period to conclude the corruption cases.
Waititu was charged with conspiracy to steal Sh58 million from Kiambu County during the award of the controversial Sh588 million roads construction contract.
He was charged alongside his wife Susan Wangari Ndun’gu, former Kiambu County Chief Officer for Roads Luka Mwangi, businessman Charles Chege, his wife Beth Wangeci and six county employees.
Lenolkulal is facing charges of conspiracy to commit an economic crime by receiving Sh84,695,996 from Samburu county government through his company Oryx Services Station for a tender to supply fuel to his government.
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