Why fate of ousted governors is sealed

Article 75 applies with full force to all public officers who were impeached. The language of the Article creates a permanent standing order barring those impeached from holding any other state office. What is the point of running if Independent Electoral and Boundaries Commission (IEBC) cannot declare you the winner and you cannot hold the office?

The provisions are in the constitution and do not have exceptions. Any statute law, be it the Elections Act or Leadership and Integrity Act or any other that attempts to mitigate the harshness of the provision, qualify it, or create exceptions such as suspending the disqualification until one exhausts appeals and reviews, contradicts the constitution and is a nullity under article 2 (4) of the constitution.

Effect on impeached governors

The effect on impeached governors is that they are disqualified from running for the Office of Governor or any other state office. It means they cannot run for the seats in Senate, National Assembly, County Assembly, presidency or any other state office since these are state offices under Article 260 of the constitution.

The effect of the disqualification is even more devastating. They cannot be appointed as Cabinet secretaries, principal secretaries or in commissions established by the constitution or any other office established by the constitution and designated a state office. Sorry to those who hope to be nominated to the National Assembly or Senate or to the cabinet or plum jobs in state corporations.

Whether the Article applies to county speakers who were removed

Speakers of County Assemblies who have been removed are not covered by Article 75 (3). This is because the title of the article shows that it applies to the ‘conduct’ of state officers. The definition of a state officer in Article 260 (h) excludes Speakers of County Assemblies. With respect to counties, Article 260 (h) defines state office as a “Member of the County Assembly, governor or deputy governor, or other members of the executive committee of county government.” Luck is on their side for they can run for any office.

Whether the Article applies to former cabinet secretaries, county executives and other lower rank state officers

Subject to being a state office, the words used in Article 75 (3) is “any person”. This means that former and sitting Cabinet secretaries, county executives and other lower rank state officers will stand disqualified from contesting in a General Election for any other office or being appointed to any state office if they were removed or are in future dismissed, impeached or otherwise removed from office for conflict of interest, demeaning the office, participating in other gainful employments, or holding dual citizenship.

Even retired state officers are not spared since they stand disqualified if they were removed or are removed from the state office holding office political parties, holding more than two concurrent remunerative positions as chairpersons, director or employee of a state corporation whilst receiving a pension from public funds. Removal or dismissal from any office declared to be state office under any law is fatal to a political career.

Is there hope from courts for those disqualified?

The sentiments of the courts when deciding the fate of governors who were barred by anti-corruption courts from accessing their offices during the pendency of their cases suggests that there is no hope for the unfortunate governors and other state officers so dismissed.

The sentiments give a strong indication that the courts are inclined to side with the agitated and throw the unfortunate governors under the bus. First, it is the courts that crafted the legal argument that enables them to bar governors and other public officers charged with corruption from accessing their offices despite section 62 (6) of the Anti-Corruption and Economic Crimes Act expressly exempting such state officers from suspension from office pending the hearing of their cases.

In the Lenolkulal case, Justice Mumbi Ngugi said that the object of the constitution is to foster integrity for leadership in public offices. The Court of Appeal agreed with Justice Ngugi in the case of former Kiambu governor Ferdinand Waititu and the subsequent appeal by Mr Lenolkulal. Judges do not appear to have any kind words for the governors who are suspected to be culpable.  I am no prophet but it seems their fate is irredeemably sealed to forfeiting running or holding public office forever.

Dr Ndegwa teaches law at the University of Nairobi