When the High Court declared that governors facing corruption charges should step aside until their cases are concluded, perhaps the judges never knew the same fate would befall one of their own.
But the declaration, which was passed by justices Mumbi Ngugi and Grace Ngenye and upheld by the Court of Appeal, has been used by a Meru resident to temporarily bar acting Chief Justice Philomena Mwilu, who is battling corruption claims, from holding office.
The decision has so far been used to block four other governors from office— Ali Korane (Garissa), Muthomi Njuki (Tharaka Nithi), Okoth Obado (Migori) and former Nairobi County boss Mike Sonko.
In that ruling, Justice Ngugi said denying the governor access to office did not amount to his removal.
She questioned the rationale behind section 62(6) of the Anti-Corruption and Economic Crimes Act that allows State officers, whose removal is provided for in the Constitution, to remain in the same offices that they are alleged to have abused while on trial.
In her view, section 62(6) of Act violates the letter and spirit of the Constitution, particularly Chapter Six on Leadership and Integrity.
Another question raised by Justice Ngugi was whether the State officers can be allowed to ride roughshod over the integrity required of leaders, face prosecution in court over their alleged corrupt dealings, and still continue to enjoy the trappings of office.
The petitioner in the latest case against judge Mwilu says the acting president of the Supreme Court is a State officer and the mere fact that she is facing integrity questions contravenes the high standards of integrity required of her post.
The basis of his petition is a criminal case in which Justice Mwilu faced charges of obtaining a Sh12 million loan from Imperial Bank by virtue of her office as a Court of Appeal Judge.
It was said that she did not apply for the loan, there was no written letter of offer from Imperial Bank Limited setting out the loan amount, repayment period, interest rate, security offered, among others, at zero interest.
"The institution of the Judiciary cannot be seen to apply different standards of integrity for judicial officers such as the justice Mwilu," says Mr Mbiti.
The Judicial Service Commission (JSC), having failed to cause Justice Mwilu to step aside pending the hearing of the petitions against her, says Mr Mbiti, amounts to preferential treatment of judicial officers against other State officers who would, in similar circumstances, be required to step aside.
He argues that the judge is a Kenyan before she is the deputy Chief Justice and the moral probity required of her is that of a Kenyan State officer. “Hence, she ought not enjoy preferential treatment because she is a judge”.
Mr Mbiti says when the Director of Public Prosecutions (DPP) opened criminal charges against Justice Mwilu three years ago, he was satisfied, from the examination of the evidence available, that there were reasonably substantial grounds for instituting criminal proceedings.
“The DPP was also convinced that those proceedings were reasonable and that judge Mwilu either committed the offences or played a major role in the commission of the offences”.
The petitioner adds that a five-judge bench that stopped judge Mwilu's prosecution also stated that there was factual and legal basis for the initiation of the criminal charges in respect to two counts.
The bench also found that Judicial immunity does not shield a judicial officer from criminal prosecution, and that acts of a criminal nature committed outside the scope of official judicial function may be investigated and the judicial officer arrested and prosecuted directly without recourse to the disciplinary or removal process.
Mr Mbiti says the petitions filed at the JSC by the DPP and the Directorate of Criminal Investigations for judge Mwilu's removal are tantamount to criminal proceedings against her.
However, senior legal minds in the country have made different opinions on the petition and the temporary orders that have removed justice Mwilu from office.
Former Vice-President Kalonzo Musyoka, a senior counsel, asked that due process be followed in the matter, arguing that as judge of the Supreme Court, Justice Mwilu can only be removed from office through a tribunal.
“I am shocked and horrified that a judge sitting in Meru can actually purport to get rid of the acting Chief Justice. He must know that you need a tribunal. We must follow the law. We must be sticklers to the rule of law. Judges are not exempt and I am addressing them as senior counsel. DCJ Mwilu is not angel, but please give her due process. Due process is important,” said Mr Musyoka.
Constitutional lawyer Peter Wanyama observed that the case is not a petition for the removal of the judge, but is simply saying that because there are pending integrity issues, the acting Chief Justice should 'step aside' until the issues are determined.
"The Petition borrows heavily from the fluid finding by Lady Justice Mumbi Ngugi that State officers who have pending integrity issues should not be allowed to occupy their offices as this would breach Article 73 of the Constitution. The chickens released by Mumbi Ngugi have finally come to roost," noted Mr Wanyama.
According to him, if the finding gets credence and is affirmed then there is no judge who is safe as it means all judges who have pending integrity issues at JSC must step aside until they are cleared.
