Duties and functions

Kenya: Waititu fights against access orders to Supreme Court offices

Director of Public Prosecutions Noordin Haji and former Kiambu Governor Ferdinand Waititu are embroiled in a legal battle at the Supreme Court over whether a governor being denied access to office amounts to removal from office.

Governors facing criminal cases such as corruption should not be barred from accessing their county government offices, Mr Waititu said, as this amounts to constructive removal from power.

Through attorney Tom Ojienda, Mr Waititu told the court yesterday that there is a bad legal precedent set by the district courts and the High Court in denying county heads access to their offices once incriminated for corruption. Professor Ojienda said the precedent was upheld by the Court of Appeal in 2019.

“The lower courts have created a new avenue for the removal of a sitting governor. Once he has been indicted by a court, they are guilty until proven guilty. The courts have deviated from the provision created in the Constitution for the removal of a governor from office. “said Professor Ojienda.

He explained that article 181 of the Constitution and the procedure provided for in article 33 of the County Government Act provide for conditions under which a governor can be removed from office, and that he does not do so. not party to be indicted by a court.

Lead counsel argued that Article 49 (1) (h) of the Constitution on the right to bail was used by the courts of first instance to remove governors from power by prohibiting them from standing. go to their county government offices as a condition of being out of custody pending criminal trial.

He described the condition as excessive and strict and a roundabout method of removing a governor.

Prof Ojienda said there was no law allowing a court to vacate a governorship or suspend its statutory duties, functions and powers by imposing bail conditions.

He urged the bench of five judges chaired by Judge Mohammed Ibrahim to rule that denying a governor access to his office due to an ongoing corruption case violates the right to a fair trial.

In addition, this denial of access to office should not be part of the bail conditions imposed on county leaders accused of corruption.

The other judges in the case are Judges Njoki Ndung’u, Smokin Wanjala, Isaac Lenaola and William Ouko.

Professor Ojienda said the strict bail sentence, which emerged from Judge Mumbi Ngugi (now an appellate judge), has been widely used to oust governors from power and convict them without ever hearing them.

“In Kiambu, when the court barred the governor from taking office as a condition of bail, the deputy governor immediately began to exercise the power of governor. difficult for the incumbent to perform his duties, ”said Professor Ojienda and his co-lawyer in the petition, Mr. Evan Uganda.

They further argued that although Article 62 (1) of the Law against Corruption and Economic Crimes provides for the suspension of a public official until the conclusion of the case, Article 62 (6 ) of the same law provides that this article does not apply to holders of a constitutional mandate where there is a mechanism of revocation.

In their view, the conditions set out in the bail period imposed on governors are unconstitutional and illegal, as they contravene subsection 62 (6).

“Courts should consider the direct and indirect consequences of their decisions. In this case, the court relied on socio-political issues and not on facts to yield to the decision. The court went too far in interpreting section 49 (1) (h) on bail in a way that infringes the rights of a governor whose mandate is protected by law, ”the lawyers said.

However, the DPP said trial courts have the discretion to impose bail conditions based on the case and its own merits and circumstances.

Through state attorneys Alexander Muteti and Tabitha Ouya, the DPP said demanding that a governor step down pending trial cannot be considered impeachment.

Prosecutors told the court Mr Waititu is seeking pardon and special treatment for governors facing criminal charges.

“It would be a messy situation where a governor and a purchasing official are accused of corruption and the officer has to stay out of office while the governor is allowed to continue serving. It would be discrimination,” Mr. Muteti.

He argued that the withdrawal order is in tandem with Chapter Six of the Constitution.

“The Constitution is a living document and the enactment of this chapter has not been in vain and the courts apply the law. Denial of access to office is not a backdoor revocation,” Muteti said.

He argued that banning a governor from taking office is not a permanent condition, saying the Economic Crimes Law provides that the suspension of public officials should only last for 24 months.

“After the expiration of the 24 months, nothing prevents the party concerned from going to court for the review of the conditions of the release on bail and the return to his functions”, declared Mr. Muteti.

The judges will render their decision on notice.