Waititu's Trojan horse falls apart

A Milkmaid went to market with her pail on her head. She was lost in thought about the profits and what she will do with them and tripped, wasting all of the milk. We have always been told never to count our chicks before they hatch.

In a similar fashion of wild thoughts, Kiambu Governor Ferdinard Waititu rushed to court seeking to use a shortcut to be allowed back to office.

It is rather obvious that it was not because of the bail that he moved to the High Court seeking a review of the terms.

Waititu’s was a devious and strategic decision with two objectives. The first was to obviously gain public sympathy, especially from Kiambu voters who have expressed regret over their decision at the ballot in 2017.

The second, and more important, was to use his incarceration to ensure that his application for review of the order barring him from office received expeditious treatment, under a certificate of urgency.

It was obvious that seeking a straight review of the decision barring him from office would take ages, and Waititu and his lawyers knew this. His colleague, Samburu Governor Moses Lenolkulal, had tried a review of similar terms and it took four months to get a verdict.

Like Waititu, he lost his bid to be allowed to his office.

And so, we can easily conclude that the review of the monetary terms of his bail was simply Baba Yao’s Trojan horse. And as one would expect, his fellow governors now want to be enjoined in his appeal to argue that the courts are unconstitutionally removing them from office once they are charged.

Waititu is not the first to apply this tactic in seeking to subvert the wheels of justice. Deputy Chief Justice Philomena Mwilu’s legal team tried the same by delaying her taking a plea, getting a stay order and challenging the constitutionality of her being charged.

And since she was never charged, she was not required to step aside. But she also learnt that the law is a double-edged sword as the court blocked her charges citing illegality of investigations but made it clear she can be charged.

From the judgment it is now clear that; "A superior judge or judicial officer does not enjoy any immunity in offences committed in their personal capacity or while on duty."

As she awaits the DPP’s appeal to be dealt with, Mwilu is no longer sitting on any Supreme Court bench, as she cannot hear any matter. In other words, we have a DCJ who cannot carry out her official duties as required.

These two cases underscore the need for our courts to start aligning their judgements with Article 10 of the Constitution that is pillared on national values and particularly Chapter 6 that is primarily on integrity.

The protective veil that certain constitutional and elected officers seem to use to insulate themselves from criminal prosecution, or removal from office, needs to be uncovered to end impunity.

As is said, the eyes of justice see round sharp corners.

There are many arguments being made on the governors such as it is not the function of the court to determine the will of the people.

As Justice Mumbi Ngugi put it, a person facing criminal prosecution should be considered as being of 'moral ill-health' and should therefore not access their office.

Waititu had hoped that Justice Ngenye would ignore the decision made by Justice Ngugi and allow him back to office. These two justices have made landmark rulings from the High Court that have greatly strengthened the war on corruption and given trial magistrates the necessary direction.

And all this is a win for Kenyans who would not want to see the people accused of plundering their taxes, in the same offices they as accused of abusing.

Machel Waikenda is a political and communications consultant.