The Director of Public Prosecutions has urged the High Court not to interfere with orders barring Kiambu Governor Ferdinand Waititu from accessing his office.
Through senior assistant Alexander Muteti, the DPP said the ruling was in line with the Constitution.
Muteti said the order granted by trial magistrate Lawrence Mugambi on Tuesday did not amount to the removal of the governor from office.
He said the move was akin to suspension as contemplated under section 62 (1) of the Anti-Corruption and Economic Crimes Act.
The section provides that public officers charged with corruption or economic crime be suspended, until the conclusion of the case, which should be determined within two years.
Muteti was responding to an application filed by Waititu and his co-accused seeking a review of the bail terms imposed by the trial magistrate.
The prosecutor said the application was incompetent and the accused persons ought to have filed an appeal.
In the application, Waititu seeks an interpretation of various constitutional questions.
Among them is the decision pronounced by Justice Mumbi Ngugi who upheld a decision of a magistrate barring Samburu county boss Moses Lenolkulal from accessing his office.
In her ruling, Justice Ngugi observed that allowing persons facing criminal charges to public offices entrenches corruption and impunity.
The DPP said the interpretation of Mumbi’s decision and its impact on devolution is a matter that can only be subject of an advisory opinion of the Supreme Court.
“This court lacks jurisdiction to entertain the application,” Muteti said.
Muteti said the bail terms set by the trial magistrate met the threshold and therefore there was no justification for the court's intervention.
“The order barring access to the office is in line with the provisions of chapter six of the constitution and should therefore not be interfered with. Section 62 (6) of ACECA, on the other hand, is unconstitutional to the extent that it discriminates against state officers in the enforcement of chapter six of the constitution,” Muteti said.
Muteti argued that Waititu’s co-accused have not demonstrated that the bond terms issued by the magistrate were unjust.
“The applicants are men and women of means and have not presented any evidence to the contrary to warrant a review of the cash bail imposed on them,” he said.
Justice John Onyiego directed parties to appear in court on Monday when the matter will be heard.
Waititu was on Monday charged alongside his wife Susan Wangari and eight others over Sh588 million irregular tenders in the county.
Waititu was ordered to pay Sh15 million cash bail and a bond of Sh30 million while his wife was to pay Sh4 million.
They were also required to deposit their travelling documents to the court.
(edited by O. Owino)
