The expanding list of people with criminal court cases getting top government positions has put President William Ruto’s administration on the spot, raising questions about his commitment to enforcing ethics and integrity in the public service.
The Law Society of Kenya (LSK) yesterday announced plans to move to court just a day after President Ruto appointed Ms Mary Wambui Mungai the Communication Authority of Kenya chairperson, Mr Humphrey Kariuki a member of the National Investment Council and former Kiambu governor Ferdinand Waititu a member the Nairobi River Commission.
Legal experts have raised questions about Mr Waititu’s appointment after his impeachment by the Kiambu County Assembly was upheld by the Senate.
He lost subsequent court battles to reverse the decision, effectively barring him from holding any public office.
The officials have denied charges levelled against them, saying they were fixed by the administration of President Uhuru Kenyatta.
The list of appointees by Dr Ruto reads like revenge on the Kenyatta administration, which took some of these individuals to court.
LSK and opposition Azimio la Umoja One Kenya Coalition say the country is taking a dangerous trajectory by rewarding individuals facing criminal cases before they are cleared.
They accuse President Ruto of going against the law and the Constitution by giving such individuals public jobs.
The LSK and Azimio coalition also accuse the Judiciary of turning a blind eye and giving a deaf ear to violations of the law.
But President Ruto’s allies defend the appointments, saying the individuals are innocent until proven guilty. They also say that some of the cases were politically instigated.
LSK President Eric Theuri told the Sunday Nation that the organisation would go to court to challenge the appointment of Mr Waititu.
Mr Waititu was impeached as Kiambu governor in January 2020 on claims of corruption, gross misconduct and abuse of office.
“We are keenly looking at the appointments and engaging civil society organisations with a view of challenging some. For Waititu, we will definitely go to court. It is clear that once impeached, you cannot hold public office,” Mr Theuri said.
Chapter Six of the Constitution
He quoted Article 75(3) of the Constitution, which says: “A person who is removed from office on contravention of Chapter Six of the Constitution is disqualified from holding any other State or public office whether elective or appointive.”
“Even the Principal Secretary appointments did not comply with gender and regional balance rule. The Judiciary appears to be working closely with the Executive in going against some of these provisions. Our Judiciary is in that choir with the Executive,” the LSK president said.
A consolidated case challenging the nomination of Principal Secretaries, including one filed by the LSK, was thrown out early in the week.
Mr Danstan Omari, a Nairobi lawyer, said the appointments “have set the country on a path to complete destruction of the moral fibre”.
He added that facing charges in court appears to increasingly be an advantage when being considered for top government positions.
“Morally, it is bad but constitutionally the accused are innocent until proved guilty. Politically, it is an indictment on former President Kenyatta since it points out that most people who were taken to court were Ruto’s friends,” Mr Omari said.
Ms Mungai is battling Sh2.2 billion tax evasion charges while Mr Kariuki is fighting similar accusations involving Sh17 billion.
One case involves Sh588 million in road construction tenders while the other is a Sh1.9 billion involving unexplained wealth.
Mr Mwaura’s two construction companies – Hardy Enterprises and Toddy Civil Engineering – were implicated in a Sh357 million fraud and corruption at City Hall during the tenure of Governor Mike Sonko.
Ms Mungai and Mr Mwaura were among those charged alongside Mr Sonko in 2019 over money laundering and giving him kickbacks.
Freedom could be looming for Ms Mungai as the Director of Public Prosecutions (DPP) has received a nod from a court to delay her tax-evasion trial so as to allow a review the file and an out-of-court settlement between her and the Kenya Revenue Authority.
The case will be mentioned tomorrow. The court will be informed of the outcome of the negotiations and make the final decision.
Ms Mungai, her daughter Purity Njoki and their company Purma Holdings Ltd were hauled in court on December 9, 2021 to answer tax-evasion charges.
KRA is seeking to overturn a High Court’s decision that quashed charges against the alcohol manufacturing businessman and his partners.
In May, Justice Anthony Mrima ruled that KRA cannot be the investigator and prosecutor, adding that the agency was encroaching on the powers of the DPP.
He appeared in court together with directors of Wines of the World and African Spirits, including Mr Peter Njenga, Mr Robert Thinji Mureithi, Mr Eric Mulwa Nzomba and Mr Kefa Gakure.
The prosecution said Mr Kariuki and his co-accused were found in possession of uncustomed goods – some 80 drums of 250-litre ethanol valued at Sh7,402,958 – and did not pay tax for the liquor.
They were also charged with omitting from the VAT returns of Africa Spirits Sh2.1 billion and Sh5.9 billion from excise returns.
They denied the charges, arguing that the case seeking to get Sh17 billion from them was malicious, unconstitutional and without legal backing.
Politicians allied to Azimio la Umoja One Kenya Coalition leader Raila Odinga said it is not surprising to see individuals facing court cases being given government jobs.
They say Dr Ruto’s pick of Mr Rigathi Gachagua as his running mate when the latter was facing corruption-related charges indicated that the two had little regard for the law. Charges against Mr Gachagua have since been dropped.
Jubilee Secretary General Jeremiah Kioni said the reason lawbreakers are punished is to deter others from committing similar crimes.
“It now appears that we are rewarding criminals. It is a hopeless situation because the Judiciary has been captured by the current administration. We are courting anarchy,” Mr Kioni said.
National Assembly Minority Leader Opiyo Wandayi described the appointments as an orchestrated assault on the country’s Constitution.
“It is clear that the leadership and integrity tenets in Chapter Six of the Constitution have been thrown out the window and shall no longer be a factor in making appointments to public office in the United Democratic Alliance regime,” Mr Wandayi said.
“It is an extremely sad state of affairs. Progressive forces must regroup and launch a new struggle to save the country.”
National Assembly Minority Whip Junet Mohamed said it is becoming clear that even people facing capital punishment can still be appointed to a public office.
Nairobi Senator Edwin Sifuna and his Vihiga colleague Godfrey Osotsi said there are signs that the country is sliding back to the Kanu era.
“That is the tone Ruto set from the beginning of this administration. From his choice of deputy to members of his cabinet, he clearly has no consideration for integrity. He will not stop until every misfit known to him is hired,” Senator Sifuna said.
Said Mr Osotsi: “This is the time to know who the true reformists are. Even some in Azimio la Umoja One Kenya Coalition who are products of the dark days are stampeding to the government. They were pretenders to the struggle for a better Kenya.”
Senators William Cheptumo of Baringo and Nandi’s Samson Cherargei say the Uhuru Kenyatta regime politicised the war on corruption. Without giving details, they said some people were dragged to court to settle political scores.
“The Constitution provides that one is innocent until proved guilty. As serious as the cases may be, the accused remain innocent. The problem in this country is that we do a lot of prosecution in the public opinion court,” said Mr Cheptumo, who chairs the Senate Defence Committee.
“Some of these cases have not been concluded. The previous regime misused the criminal justice system. Allegations were treated as the truth. Some investigations were done in a hurry and subjectively.”
