• Ngugi declares section protecting charged state officers unconstitutional
• Because criminal cases take long, a charged governor can spend entire term out
The High Court has dealt a staggering blow to governors facing graft charges in a landmark ruling that will make corruption an expensive affair in the coming days.
In a sweet victory to the anti-graft agencies, the court ruled that governors charged with corruption should stay away from office and their roles completely taken over by their deputies for the duration of the trial.
Like other civil servants, Justice Mumbi Ngugi ruled, governors should step aside once charged for a criminal offence and declared section of the law protecting them unconstitutional.
She termed Section 62(6) of the Anti-Corruption and Economic Crimes Act which state officers have been using to hang onto office as “entrenching corruption and impunity in the land”.
“It seems to me that Section 62(6) apart from obfuscating…are contrary to the constitutional requirements of integrity in governance, are against the national values and principals of governance and principles of leadership and integrity in Chapter Six,”Ngungi ruled.
Criminal trials take years to conclude.
This means, a governor suspended from office can easily spend his or her entire tenure in the cold, waiting for conclusion of the case.
The verdict is a shocker for county chiefs, coming at a time when the Ethics and Anti-Corruption Commission is hunting down several governors with some already in court.
Migori Governor Okoth Obado has been charged with the murder of university student Sharon Otieno and his trial is ongoing.
Currently, Kiambu Governor Ferdinand Waititu is facing arrest over multi-million procurement irregularities.
Others on the EACC radar include Tharaka Nithi’s Muthomi Njuki and Kitui’s Charity Ngilu.
A second term governor from the Rift Valley and a first term county boss from North Eastern are also on the EACC radar.
Ngungi made the ruling Wednesday following an application by Samburu Governor Moses Lenolkulal who had been barred by a lower court from accessing his office.
The governor alongside other senior county staff are facing prosecution over Sh84.7 million fuel fraud at the county.
In her ruling, Ngugi rubbished claims that Lenolkulal’s absence at the helm would create a vacuum, saying the law provides for the office of the deputy governor.
She said in the past, governors left office for reasons of ill health and their roles performed by their deputies.
“In this case, the applicant is charged with a criminal offence; he has been accused of being in “moral ill health”, if one may term it so. He is alleged to have exhibited moral turpitude that requires that, until his prosecution is complete, his access to county government offices should be limited as directed by the trial court,” she rued.
The Director of Public Prosecution had previously vowed to use all available avenues to challenge section 62(6) including moving to the Supreme Court.
“I will go to Parliament and ask that Section 62 of the Anti-Corruption Act be reviewed and have subsection 6 expunged,” Haji said last year.