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Waititu now takes fight to Senate, top court

By Roselyne Obala and Paul Ogemba | Dec 24th 2019 | 6 min read
Kiuu ward MCA Daniel Ngugi (center) flanked by other Kiambu Members of County Assembly addressing the press in Nakuru over the impeachment of Governor Ferdinand Waititu. [Kipsang Joseph/Standard]

Kiambu Governor Ferdinand Waititu has written to the Senate saying his impeachment was unconstitutional.

In the letter, Waititu claims that the constitutionally stipulated two-thirds Members of the County Assembly (MCAs) were not present when Kiambu County Assembly voted to impeach him.

He argues that the two-thirds quorum required to initiate the impeachment process translates to 62 out of the Assembly’s total membership of 92, and that 35 members were away, leaving only 57 present when the motion to impeach him was called.

“The members in attendance were 57 with 35 MCAs absent wherefore 30 MCAS were in Lake Baringo Lodge. Three were in Dubai on official duties. Two were absent,” Waititu says in a letter addressed to Senate Speaker Ken Lusaka.

“Suffice to note that none of the 30 MCAs would have been available to vote as at 1430 hours, noting that a journey from Lake Baringo Lodge to Kiambu would ordinarily take a minimum of four hours,” reads Waititu’s letter through his advocate, Ndegwa Njiru.

Required quorum

“From the commencement, the Assembly did not have the requisite statutory quorum at any particular time. For the reason that the sum number of the members of the Assembly is 92, thus the statutory quorum required under Section 33 (2) of the County Government Act to pass such a special motion is 62 members,” stated the governor’s lawyer.  

Ndegwa argues that at 1330 hours, the speaker unilaterally adjourned the Assembly during the voting.

Waititu terms the impeachment process unprocedural and one that should not be considered by the Senate.

“We are reliably informed that, in a bid to cover up the aforesaid illegality relating to the two thirds quorum, the Speaker is in the process of doctoring and falsifying the Assembly’s records relating to the CCTV footage, the Hansards, the biometric logs captured,” Waititu claims in the letter.

“These actions by the speaker are actionable in a court of law and our client has instructed us to seek legal redress against the conduct of the speaker, which includes but not limited to raising a complaint with the Directorate of Criminal Investigations (DCI),” states the letter.

Copied in letter

The letter has been copied to Majority Leader Senator Kipchumba Murkomen (Elgeyo/Marakwet), his Minority counterpart Senator James Orengo (Siaya) and DCI director, George Kinoti.

County Assembly Speaker Stephen Ndicho did not respond to our calls and text messages on the matter.

Waititu pokes holes into the legality of the process to remove him out of office by the MCAs, saying the motion was first tabled in the Assembly on December 3.

“It was debated and passed on December 19, thus outside the purview of the statutory period of 14 days,” states Waititu’s lawyer who attended the entire session of the County Assembly debate that culminated in the impeachment vote against the governor.

The lawyer, in the letter dated December 22, criticises the Assembly’s handling of the impeachment process, citing improprieties and irregularities.

He lists down four reasons why the impeachment matter should not be admissible in the Senate.

Yesterday, Senate Speaker Ken Lusaka confirmed that the House had received the impeachment proceedings from the County Assembly.

“As you know we are on recess. Any special sitting must be requested by the two leaders (Leader of the Majority and Leader of the Minority). They have to look for a convenient dates, or it waits until the house resumes,” said Lusaka.

Murkomen said senators would take a position once the matter was formally committed to the Senate, which will then form a committee to investigate the claims against the governor and report to the House for the final vote.

Murkomen has an upper hand to nominate six Senators to the select committee while Orengo has five slots.

If Senate upholds the impeachment, Waititu will lose his seat and his deputy, James Nyoro will take over for the remainder of the term.

Senators can also vote to overturn his impeachment. 

Supreme Court

Meanwhile, Waititu yesterday moved to the Supreme Court to contest the decision to lock him out of office.

Waititu claims in the notice of appeal to the apex court that he is dissatisfied with the Court of Appeal’s decision last Friday to uphold his suspension, claiming that it amounted to removing him from office through the back door.

“Being dissatisfied with the entire decision of the Appellate Court, the applicant is seeking the Supreme Court’s intervention to enforce his rights as an elected governor and those of Kiambu people who stand to suffer if the decision is not overturned,” read the notice of appeal.

Appellate Judges Daniel Musinga, Agnes Murgor and Gatembu Kairu on Friday upheld a High Court decision, which suspended Waititu and Samburu Governor Moses Lenolkulal from office after they were charged with embezzling public funds.

The governor was charged in July with conspiracy to steal Sh58 million from Kiambu County during the award of a Sh588 million tender for roads construction.

He was charged alongside his wife Susan Wangari Ndun’gu, former County Chief Officer for Roads Luka Mwangi, businessman Charles Chege and his wife Beth Wangeci as well as six county employees.

The trial magistrate then barred Waititu from accessing his office as a condition for being released on bail. The ruling was upheld by High Court Judge Grace Ngenye who declared that the governor should not set foot in the county offices until the corruption case is concluded.

Judges Musinga, Murgor and Gatembu ruled that public interest outweighed the two governors’ 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.

According to the judges, it would be wrong to allow Waititu to set foot in the same offices he is accused of committing the crimes and interact with the same witnesses, who are his junior staff, scheduled to testify against him.

On the issue of a vacuum being witnessed at the counties due to the governors’ absence, the judges stated that 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.

Governors benefits

They, however, stated that barring the governors from office 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, through his lawyers had argued that the High Court erred by misinterpreting the constitution, which protects constitutional office holders from stepping aside when facing graft charges and creating confusion in managing county governments.

But the Appellate Judges ruled that Section 62 (6) of the Anti-Corruption and Economic Crimes Act, which shields governors from suspension when facing charges did not apply since a court must take into consideration circumstances of each case.

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