Waititu loses bid to have governors on criminal cases access office

Politician Ferdinand Waititu has lost a petition that sought protection of county governors from “political witch hunt” by being forced to step aside or denied access to their offices after being charged with criminal offences.

Mr Waititu had argued that denying a governor access to his office because of a pending corruption case is violation of the right to fair trial and that it amounts to a constructive removal from power.

He wanted the Supreme Court to quash a legal precedent set by the magistrate courts, the High Court and Court of Appeal, which requires public officers facing economic crime charges to stay away from their offices once arraigned in court.

But the Supreme Court ruled that barring a governor from accessing his office pending his trial on corruption charges cannot be equated to a removal from office.

“The trial court merely attached a condition to the bail granted for Mr Waititu not to access his office and did not order his removal from office. Removal from office has to be undertaken by the procedure set out in Section 33 of the County Governments Act,” said the five-judge bench of the top court.

On Mr Waititu’s claim that he was subjected to constructive removal when he was blocked from accessing his office, the top court said the reason for the order was made to safeguard the integrity of the criminal trial during its pendency, and no more.

Through his lawyer Tom Ojienda, the former governor argued that the bail terms imposed by the Anti-Corruption Court made his working conditions so intolerable that he felt as if he was being compelled to leave office. The most contentious condition was being told he could not access his office.

Prof Ojienda explained that Article 181 of the Constitution and the procedure set out under section 33 of the County Government Act provides conditions under which a governor can be removed from office, and being charged in court is not among them.

The senior counsel submitted that Article 49 (1)(h) of the Constitution on right to bond or bail has been used by the Anti-Corruption Court to remove governors from power by prohibiting them from going to their county government offices as a condition of being outside police custody pending the criminal trial.

He described the condition as excessive and stringent and a backdoor method of removing a governor.

However, the judges were of the opinion that Mr Waititu clutched onto the misguided notion of constructive removal, a mirage, when all he had to do was focus on bail terms and conditions and use lawful means to challenge the same.

“Removal was later conducted, and he is no longer in office. The trial court’s ruling cannot, therefore, be said to be the basis for his eventual removal, and as a basis for challenging the bail ruling,” said the Supreme Court bench led by Justice Mohammed Ibrahim.

It added that Mr Waititu failed to advance reasons to show that the bail conditions imposed were unconstitutional, unreasonable or unattainable.

According to the court, the decision of the Anti-Corruption Court to block Mr Waititu (and other governors) from going to office was based on the nature of the corruption charges and the possibility of him interfering with witnesses, who were his subordinates at the time.

“The need to preserve the integrity of the evidence of the witnesses by finding that it would not be right if the witnesses were to be intimidated by them being suppressed was therefore a valid consideration,” said the Supreme Court. The other judges on the bench were Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

For its part, the Office of the Director of Public Prosecutions (ODPP), while opposing the petition, stated the governor should be subjected to the same treatment and processes as any other accused person in a criminal trial would be subjected to.

The ODPP argued that a governor should not be given preferential treatment on account of his social status or the position he holds.

Further, it was argued that there is a distinction between suspension and removal of an office holder, arguing that Articles 181 and 182 of the Constitution provide for the process of removal of a governor from office.

The legal battle between Mr Waititu and the ODPP started after the Anti-Corruption Court blocked him from setting foot at his county government offices after he was charged over corruption. He was eventually impeached by the County Assembly and the removal was upheld by the Senate.