In the matter before me, the governor of a county to whom Article 10 and Chapter Six apply is charged with the offence of abuse of office. He is charged with basically enriching himself at the expense of the people of Samburu county who elected him and whom he is expected to serve. Would it serve the public interest for him to go back to office and preside over finances of the county that he has been charged with embezzling from? What message does it send to the citizen if their leaders are charged with serious corruption offences, and are in office the following day, overseeing the affairs of the institution? How effective prosecution of such state officers be, when their subordinates, who are likely to be witnesses, are under the direct control of the indicted officer?
It seems to me that the provisions of section 62(6), apart from obfuscating, indeed helping to obliterate the 'political hygiene' are contrary to the constitutional requirements and undermine the prosecution of officers in the position of applicant in this case. In so doing, they enrich corruption and impunity in the land
The question then is what should be done in a case such as this in order to protect the public interest and ensure that the applicant does not use his position to undermine his prosecution. Does issuing an order requiring him not to access his office without prior authorisation amount to a 'removal from office', contrary to the provisions of a governor in the Constitution?
Firstly, I consider the implications of directing that the applicant does not access his office are under the provisions of the County Government Act, where the governor is unable to act his functions are performed by the deputy governor. This is provided for in Section 32 (2) of the county government Act. The governor in this case is not being removed from office, he is being charged with crimes under ACECA, and in my view, a proper reading of Section 62 of ACECA requires that he does not continue to perform the functions of the office of governor while the criminal charges against him are pending.
This is an abridged version of Justice Mumbi Ngugi's ruling
