With the Director of Public Prosecutions (DPP) and the Ethics and Anti-Corruption Commission (EACC) breathing down their necks, governors are now pleading with the courts to save them and their jobs.
In a petition filed on Friday at the Constitutional and Human Rights Division of the High Court through lawyer Peter Wanyama, the Council of Governors (CoG) claims that the courts, the DPP and EACC are discriminating against it by forcing members who have been charged with corruption to stay away from their offices, which does not apply to other state officers.
“Members of Parliament, who are elected in the same manner as governors, are being subjected to differential treatment in breach of Article 27 (1) of the Constitution, which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Are the reasons for not asking MPs to be suspended from office during trial applicable to governors?” the petition says.
They have listed the EACC, the DPP, and the National Police Service as the respondents while the Attorney General is listed as an interested party.
According to the governors, without legislation by Parliament to provide for their suspension from office, the decision has so far been at the discretion of the DPP and the anti-corruption courts to block them from accessing their offices indefinitely.
“The Petitioner avers that the fight against corruption should be guided by the rule of law. The foregoing issues cannot be left at the discretion of the DPP or magistrate.
“Parliament or the Supreme Court must be involved to provide the operating environment for stepping aside to avoid subjecting governors to uncoordinated and inconsistent application of the law and justice through the discretionary powers of individuals and perceptions,” the governors state in their petition.
Six governors have so far been barred from accessing their offices after they were charged with corruption-related offences since 2018. Save for then Kiambu Governor Ferdinand Waititu, who was impeached after he was charged, the other five are still barred from accessing their offices. They are Moses Lenolkulal (Samburu), Gidion Mbuvi Sonko (Nairobi), Okoth Obado (Migori), Muthomi Njuki (Tharaka Nithi) and Ali Korane (Garissa).
Their deputies have taken over as acting governors. In Nairobi, the charging of Sonko, and in the absence of a deputy governor, spurred the creation of the Nairobi Metropolitan Services (NMS), which has taken over the critical functions of the county.
EACC chief executive officer Twalib Mbarak recently hinted that more governors implicated in graft will soon be arrested, putting the position of the governors more precarious.
"We also have on our radar three former governors and, in the coming days, we are going to arrest more. We must bring to an end a culture where these governors are running state offices with impunity," Mr Mbarak said during the commemoration of the Constitution's 10 years since its promulgation.
With more of their colleagues facing possible arrest and the forced to step aside, the governors have grown jittery and are pleading with the courts to save their skins.
In the petition, the governors are asking the courts to declare that the EACC, the DPP and the National Police Service have no powers to seek to bar a governor who has been charged from accessing office, and a permanent injunction against ant-corruption courts from setting bail/bond terms that require governors to stay away from the office during the pendency of their trial..
In the interim, they are seeking orders to bar “any magistrate from making orders that constructively removes governors from office whenever they are charged with a criminal offense until Parliament enacts a legislation implementing the provisions of Article 181 (2) of the Constitution as read with Article 38 (3)(c) and Article 24 (1) of the Constitution or the Supreme Court gives guidelines on the issue” pending the determination of their case.
They also want the EACC, the National Police Service and the DPP from making an application before any magistrate in Kenya to seek orders that constructively remove governors from office whenever they are charged with a criminal offense.
“A major trend has arisen in the prosecution of corruption and economic crimes cases where Governors have been targeted for prosecution and constructively removed from office in breach of the constitutional removal provisions and procedures in Article 181 of the Constitution and without law that is required by Article 181 (2) of the Constitution and Article 38 (3) (c) as read with Article 24 (1) of the Constitution- through what the DPP and magistrates calls ‘stepping aside.’,” the governors say in their petition.
However, they say, stepping aside has been pronounced against their colleagues without any supporting law to provide the duration of the stepping aside, the status of the governor during the stepping aside, whether the governor can perform any executive functions during the stepping aside, who performs the functions of Governor who has stepped aside when the constitution and law provide that only the governor can perform certain core functions, and the resumption of office after completion of trial.
“The concept of stepping aside has presented major difficulties in the running of county government operations. It has created a paralysis and confusion in the performance of county government functions thereby undermining service delivery and the objectives of devolution,” they say.
According to the governors, it is also not clear whether the stepping aside orders extends to the government houses given to governors and which have offices in them.
“It is not clear whether the order to bar a Governor from accessing office is intended to prevent execution of executive functions. This appears to be the real reason and it is important for the Court to interpret the applicable legal and constitutional provisions. Can a magistrate bar a governor from performing his executive functions simply because the governor is facing a criminal charge in court? Is this contemplated in law, the Constitution, and the bail/bond policy?” pose the governors.
In an affidavit accompanying the petition, CoG Chairman Wycliffe Oparanya says governors have been unfairly targeted for prosecution and constructively removed from office in the guise of fighting corruption.
“If the DPP is apprehensive that the Governor will tamper with crucial witness when back in the office, the solution is put the witnesses in the witness protection programme as guided by the Witness Protection Act, Chapter 79 of the Laws of Kenya,” says Mr Oparanya.
The CoG chairman also questions why the six governors have been required to stay away from office during the pendency of their trials while the same was not asked of Busia Governor Sospeter Ojaamong which, even though he has now been put on his defence, continues to discharge his executive functions unhindered.
