Director of Public Prosecutions Noordin Haji and former Kiambu Governor Ferdinand Waititu are entangled in a legal tussle at the Supreme Court on whether a governor being denied access to office amounts to removal from power.
According to Mr Waititu, governors facing criminal cases such as corruption should not be barred from accessing their county government offices because doing so amounts to a constructive removal from power.
Through lawyer Tom Ojienda, Mr Waititu yesterday told the court there is a bad legal precedent set by the magistrate courts and the High Court in denying county bosses access to their offices once incriminated in corruption. Prof Ojienda said the precedent was upheld by the Court of Appeal in 2019.
"The courts below created a new avenue for removal of a sitting governor. Once he or she has been charged in court, they are guilty until proven innocent. The courts departed from the provision created in the Constitution for the removal of a governor from office," said Prof Ojienda.
He explained that Article 181 of the Constitution and the procedure set out under section 33 of the County Government Act provides conditions under which a governor can be removed from office, and being charged in court is not among them.
The senior counsel submitted that Article 49 (1)(h) of the Constitution on right to bond or bail has been used by the trial courts to remove governors from power by prohibiting them from going to their county government offices as a condition of being outside police custody pending the criminal trial.
Prof Ojienda stated there is no law that empowers a court to occasion a vacancy in the office of a governor or suspend his statutory duties, functions and powers through the imposition of bail terms and conditions.
He urged the five-judge bench presided by Justice Mohammed Ibrahim to rule that denying a governor access to his office because of a pending corruption case is violation of the right to fair trial.
Further, that denial of access to office should not be among the bail terms imposed on the county bosses incriminated in corruption.
The other judges on the case are justices Njoki Ndung'u, Smokin Wanjala, Isaac Lenaola and William Ouko.
Prof Ojienda said the stringent bail term, which emerged from Justice Mumbi Ngugi (now judge of Appeal), has been widely used to hunt governors from power and condemning them unheard.
"In Kiambu, when the court barred the governor from accessing office as a condition for bail, the deputy governor immediately started exercising power of a governor. The office of a governor is a constitutional office and courts should not impose a bail term that makes it difficult for the office holder to carry out the duties," said Prof Ojienda and his co-advocate in the petition, Mr Evan Oganda.
They further argued that though section 62(1) of the Anti-Corruption and Economic Crimes Act provides for suspension of a public officer until conclusion of the case, section 62(6) of the same Act provides that the section does not apply to the holder of a constitutional office where there is a mechanism for removal.
In their view, the conditions set in the bail term imposed on governors is unconstitutional and unlawful as it is made in contravention of section 62(6).
"The courts should look at the direct and indirect resultant of their decisions. In this case the court relied on socio-political issues and not facts to yield to the decision. The court over-reached by interpreting Article 49(1)(h) on bail in a manner that infringed right of a governor whose term is protected in law," the lawyers said.
However, the DPP stated that the trial courts have discretion of imposing bail terms depending on the case and its own merits and circumstances.
Through state counsel Alexander Muteti and Tabitha Ouya, the DPP said requiring a governor to step aside pending trial cannot be said to be a removal from office.
The prosecutors told court that Mr Waititu is seeking mercy and a special treatment of governors facing criminal charges.
"It would be an untidy situation where a governor and procurement officer are charged with corruption and the officer is told to stay away from office while the governor is allowed to continue serving. That would be discrimination," stated Mr Muteti.
"Constitution is a living document and enactment of that chapter was not idle and courts are enforcing the law. Denial of access to office is not a back door removal from office," said Mr Muteti.
He argued that barring a governor from accessing office is not a permanent condition, saying the economic crimes Act provides that the suspension of public officers should be for 24 months only.
"After expiry of the 24 months, nothing prevents the affected party from approaching court for review of the bail terms and return to office," stated Mr Muteti.
