Panic in counties as EACC lines up governors for prosecution

The Ethics and Anti-Corruption Commission (EACC) has caused panic in Nairobi County after demanding that all its county assembly members be sent packing for incessant chaos and general violation of Chapter 6 of the Constitution on Leadership and Integrity in the precincts of the House.

The news came as Director of Public Prosecutions Noordin Haji ordered the arrest of Tharaka-Nithi Governor Muthomi Njuki alongside eight county officials and seven company directors following an EACC probe over an allegedly irregular Sh34.9 million waste incinerator tender.

And in Murang’a, besieged Governor Mwangi wa Iria obtained court orders to ward off an arrest over audit queries and sanctions by the Senate, while Migori’s Okoth Obado continued to fight off plans to impeach him as MCAs continued to collect signatures.

The EACC chief executive Twalib Mbarak, in a letter to each of the 122 Nairobi MCAs, has, in an unprecedented move, given them 21 days to show cause why he should not initiate ouster proceedings against them in the High Court. They have up to September 14 to clear their names.

“In the exercise of the Commission’s enforcement powers, the Commission requires you to respond to the allegations against you and show cause why the intended proceedings for your removal from office should not be initiated. Your written representation should reach this office not later than 21 days from the date hereof,” read the letters, dated August 24, 2020.

Impeachment motion

The county legislators are under the spotlight over chaos that was witnessed at the assembly when a group of MCAs went to the Speaker’s office to serve Ms Beatrice Elachi with a notice of motion of her impeachment as well as a court order suspending the appointment of Edward Gichana as new County Assembly Clerk.

What followed was a confrontation between the MCAs and police officers that left Mlango Kubwa MCA Patricia Mutheu injured.

“The Commission wishes to draw your attention to the commotion, scuffle and fighting and breakdown of law and order that occurred in the precincts of the Nairobi County Assembly on or about July 27, 2020 and similar such incidents within the Assembly where you have been individually or jointly involved with other members in the spirit of collegiality,” read the letters.

The MCAs have been accused of violating Articles 73(1) (a) and 75(1) of the Constitution, Section 11(a) of the Leadership and Integrity Act, 2012 and Clause 12(1) (j) of the Nairobi County Assembly Leadership and Integrity Code.

“Both your individual and joint conduct is not only contrary to the Code of Conduct governing State officers, but is also inimical to the Constitutional and Statutory dictates that govern the conduct of a State Officer,” said Mr Mbarak.

The news sent shockwaves across the country as the EACC warned it would not hesitate to enforce Chapter Six.

Public scuffle

“The cases of fighting, public scuffle and general breakdown of law and order witnessed in some County Assemblies such as Nairobi are inimical to Chapter 6 of the Constitution and will not be countenanced. For instance, most MCAs in the County Assembly of Nairobi have become notorious for violating Chapter 6 of the Constitution with unprecedented impunity. This must come to an end. We will petition the High Court for their removal from office under Article 194(1)(g) of the Constitution. The repeated violations will also form part of their personal integrity profiles in the Commission’s database, which may adversely affect their future suitability for public office,” Mr Mbarak said.

Nairobi County Assembly Majority leader Abdi Guyo confirmed receiving the letter from the EACC and said he will respond.

“They have written to all of us although some of us were not even present that day. For instance, I was in Isiolo that day,” said Mr Guyo.

“It is upon every member to respond to them. The behaviour of members must be in conformity with Article 75 of the Constitution,” he added.

Minority Leader Michael Ogada also confirmed the same. “Everyone will respond individually because that is an individual action. I will respond about myself,” said the Embakasi MCA. But legal experts noted that the EACC will first have to surmount the parliamentary immunity clause before initiating any motion to sack the lawmakers.

“EACC will have to convince the High Court that a crime was actually committed. The kind of immunity they enjoy does not, however, cover them from criminal culpability while discharging their responsibilities,” said Mr Peter Wanyama, a senior lawyer for the Council of Governors.

The EACC said its broom would begin with Nairobi and thereafter extend to a number of county assemblies which have also been in the news for the wrong reasons.

Just last month, chaos rocked Homa Bay County assembly as rival MCAs engaged in fistfights over the county Speaker’s position. This happened just four days after a similar incident was witnessed in Bomet during the election of a new Speaker.

Public funded projects

At the same time, the EACC has once again warned politicians who brand items bought using public funds with their names or portraits against the vice. This follows claims of violations by governors, including Kiambu’s James Nyoro and Nyeri’s Mutahi Kahiga.

“There is also a worrying trend where Governors and other state officers are branding donor or public funded projects in their portraits and personal details to gain political advantage by misleading the public to believe that they are the sponsors. These are serious integrity issues for which we will hold the culprits to account. Public office is not personal property for serving individual interests. We call upon the public to report to us all incidents of this nature for action,” the EACC said. The advisory also extends to MPs.

County chiefs are now on high alert as detectives close in on those accused of corruption and abuse of office. Anti-graft detectives, for instance, believe Mr Njuki ensured that most of the seven companies that bid for the supply of a waste incinerator in Tharaka-Nithi in 2018 were owned by his associates.

The eventual winner, Westomaxx Investment Limited, imported an incinerator for Sh3.8 million but sold it to the county government for Sh34.9 million. This means Tharaka-Nithi bought the incinerator at nearly 10 times its actual cost.

Mr Mbarak said the prosecution of the officials is part of an exercise to clean up county governments that have been awash with theft and procurement irregularities.

“We must clean up the counties. Most of them are corrupt,” Mr Mbarak said after DPP Haji’s greenlight to press charges. Detectives believe Westomaxx bought the incinerator from Generation Electronic & Allied Company, which is associated with Mr Njuki.

County Environment and Natural Resources chief officer Fridah Muthoni Murungi, procurement acting director Floridah Kiende, finance officer Highton Muriithi, infrastructure official Lee Mwenda, accountant Mike Mwiandi, officer Elosy Kariithi and procurement officers Japhet Mutugi and Emily Nkatha are the county government workers whose arrest has also been ordered.

The procurement team allegedly used two sets of documents to judge tender bids, contrary to Kenyan laws which require the use of one standard document.

When detectives trailed the funds paid to Westomaxx, they found that Sh19.5 million had been wired to Japhet Gitonga, Kenneth Mucuiya, Caroline Sheila Wambui and Kenstar Electrical and Hardware Limited. The recipients will also be charged alongside Mr Njuki.

Waste management

Businessmen David Mbugua, Margaret Muthoni, Allan Murithi and George Miano will also be prosecuted for allegedly aiding theft of funds from Tharaka-Nithi.

EACC detectives also found that the waste management project was taken through procurement and commissioned without conducting Environmental Impact Assessment or being licensed by Nema.

In Murang’a, Mr Wa Iria got reprieve following a bid by a Senate committee to have him arrested for ignoring its summons to appear since August 11 to respond to audit queries. But on Thursday, the Council of Governors said its members will only appear before the Senate County Public Accounts and Investment Committee virtually until the Covid-19 pandemic is over.

“Governors will not bow to the extortionist nature of this Committee and will only appear virtually until Covid-19 pandemic is over and funds have been disbursed to county governments,” said CoG chairman Wycliffe Oparanya.

In Migori, Governor Obado is not sitting pretty after a court released him on bail pending the hearing of a corruption case. And now, Jubilee ward representatives have come up with a strategy to scuttle his planned impeachment by denying the County Assembly the requisite numbers to pass the motion. The motion is set to be tabled at the assembly next week, after 37 MCAs sanctioned the plan, but there are allegations that money has changed hands. By Thursday, at least 27 MCAs had signed the motion.

A leaked undated video shows the vocal Ntimaru East MCA Augustine Mwise, who is a close associate of Governor Obado and Deputy President William Ruto, narrating to his colleagues a plan to thwart ODM’s plans to hound Mr Obado out of office.

According to Mr Mwise, a meeting held at a Nairobi hotel after the release of Governor Obado on a Sh8.5 million bond resolved to have pro-Obado MCAs lobbied to quash the motion.

“I was given the money with instructions to rush back and mobilise all Kuria MCAs while West Kanyamkago MCA Peter Mijungu was to marshal the ODM faction,” Mr Mwise explains in the nine-minute video clip.

Jubilee has five MCAs in Migori, all from the Kuria community. Mr Obado’s deputy, Mwita Mahanga, also from the Kuria community, took over running of the county affairs after the High Court barred Governor Obado from stepping into office. The Deputy Governor was spotted in his official vehicle for the first time in a long time. Should the Governor be impeached, Mr Mahanga will take over for the rest of the term.

Tuesday’s decision by ODM to push for Governor Obado’s ouster and have Mr Mahanga immediately take over has rekindled fresh political temperatures in a county that has witnessed violence in the past.

Reminiscent of the 2017 succession politics between Governor Obado and Senator Ochilo Ayacko, the Governor and loyalists are accusing Senator Ayacko of masterminding the impeachment plot. And with the recent developments and constitutional provisions, Mr Mahanga insists there is no power vacuum in the county.

Mr Mahanga was picked by elders from the minority Kuria Community as Mr Obado’s running mate in 2013 and has since served in the same capacity for two terms, always out of the public limelight.

In the leaked video shot by one of the seemingly disgruntled members, the Jubilee MCA does not reveal the exact amount he was given to woo his Jubilee colleagues.

“Our aim is to succeed in getting the required threshold to shoot down the impending motion. Whichever way it goes, it will be a win-win situation for our community,” says Mr Mwise.

At one point, Masaba MCA Mr Abedi Maroa, an ODM ward representative, interjects, telling the group that he had feigned sickness and even informed party leader Raila Odinga so as to boycott the summons.

 “He (Raila) knows I did not travel to Nairobi because I told him I was sick,” the Masaba MCA notes.

ODM leader Raila Odinga has lately been facing accusations of applying double standards in the anti-graft war. Even as he sanctioned the impeachment of Mr Obado, friend and foe are questioning his stand on the corruption fight as he has remained non-committal on the fate of his allies who face graft allegations.

The recent impeachment proceedings of Governors Anne Waiguru (Kirinyaga) and Sospeter Ojaamong (Busia) are cited as examples. Just like Obado, Mr Ojaamong is facing corruption-related charges.

During the impeachment proceedings in the Senate, Raila’s loyalists strongly defended the Kirinyaga Governor and even voted to save her from the fangs of her  MCAs. But ODM secretary-general Edwin Sifuna yesterday dismissed the allegations, arguing that those blaming Mr Odinga over Ms Waiguru are dishonest because she doesn’t belong to the party.

He added that Mr Odinga is not a senator and therefore it is unfair to blame him for a matter involving Senate proceedings in which he had no role.

“Our leader is not a senator. He does not vote in the Senate and it is not proper to link him with the matter,” Mr Sifuna said. He added that the decision to kick out Mr Obado was arrived at on Tuesday after a court barred him from accessing his office.

“He is the first ODM governor to be barred from office and since he had a bad working relationship with his deputy, the party had to make a decision to ensure the county government functions.”

In the case of the Busia governor, Mr Sifuna said no court has barred Mr Ojaamong from office and therefore the party’s hands are tied.

Reporting by Justus Ochieng, Ian Byron, Collins Omulo, Justus Wanga, Ibrahim Oruko, Steve Oketch, Brian Wasuna and Kennedy Kimanthi.