Governors can face trial, High Court judges declare

From left, Governors Mike Sonko (Nairobi), Okoth Obado (Migori) and Muthomi Njuki (Tharaka-Nithi).

Photo credit: File | Nation Media Group

The Council of Governors has suffered a blow after the High Court rejected its plea on county bosses being spared from criminal and civil proceedings while in office.

According to the suit, the courts, the Director of Public Prosecutions and the Ethics and Anti-Corruption Commission were biased against council members by forcing those charged with corruption to stay away from their offices, something they argued does not apply to other state officers.

The council also wanted the court to say if it had jurisdiction to pronounce itself on whether governors charged with criminal offences should step aside.

It demanded that the court pronounce itself on whether bond terms imposed by a court barring governors from accessing their offices and stepping aside amounted to constructive removal from office.

The case was consolidated with another by former Nairobi Governor Mike Sonko who asked the court to look into his arrest and detention.

Constitutional rights

Mr Sonko said the manner in which he was handled violated his constitutional rights.

In a judgment delivered late yesterday, the court cited the decision of the Supreme Court in the case filed by former Kiambu Governor Ferdinand Waititu, which it said settled the question of constructive removal of county bosses.

“This court finds that the issue has been conclusively determined by the Supreme Court. That decision is binding,” said Justices James Wakiaga, Esther Maina and Grace Nzioka.

Mr Waititu was in 2019 charged with corruption and was freed on a cash bail. He was barred from accessing his office for the entire duration of the case.

He challenged the suspension at the Supreme Court, arguing that the bail terms amounted to removal from office.

But the Supreme Court ruled that being denied access to office did not amount to removal from office. It stated that the ground on which a governor may be removed from office is set out under article 33 of the constitution

“Did limiting their access equate to his removal from office under article 181 of constitution? The answer is in the negative. Barring a governor from accessing his office pending criminal cases cannot be equated to removal from office.

Suspension from office

It was a condition that removal from office should be undertaken under procedure of article 33 of the Constitution.

In their pleadings, the governors noted that there was no legislation that provides for their suspension from office, pointing out that the decision has so far been at the discretion of the DPP and the anti-corruption courts to block them from accessing their offices indefinitely.

Six governors have so far been barred from accessing their offices after they were charged with criminal offences related to corruption and economic offences since 2018.

Save for Mr Waititu, who was impeached after he was charged, the other five are still barred from accessing their offices. They are Moses Lenolkulal (Samburu), Gidion Mbuvi Sonko (Nairobi), Okoth Obado (Migori), Muthomi Njuki (Tharaka-Nithi) and Ali Korane (Garissa).

The three judges noted they were bound by the judgement delivered by Justice Mumbi Ngugi which directed that accused persons be barred from office.

They argued that the question of barring access to office is not limited to governors but extends to all public officers who are charged, including county employees.

Barred from office

“Justice directed that accused persons be barred from office. If need be they can be escorted to their office by the Investigating officer or any other authorised officer to enable them pick their belongings,” said the bench.

The three judges also rejected a plea by the governor for a declaration that the DPP, EACC have no constitutional powers to bar governors from office. We asked whether they had actually done that.

The court rejected the plea for damages on the issue surrounding Mr Sonko’s arrest pointing out that it required evidence so we are unable to address prayer for damages.