Senate wants governors facing graft charges allowed to access office
Senate has faulted a ruling by Justice Mumbi Ngugi prohibiting governors facing criminal charges from accessing their offices saying that it presents practical difficulties.
According to Senate Deputy Speaker Prof Kithure Kindiki, Judge Ngugi seems to technically suspend the affected Governor from office without having the courage to say so.
Banning of county chiefs by the courts, Kindiki said, is a frontal attack on the distinct nature of County Governments and their independence thereby emasculating and weakening devolved units.
In July this year, the High Court Judge Mumbi Ngugi in a ruling barred Kiambu Governor Ferdinard Waititu and his Samburu counterpart Moses Lenokulal from accessing Kiambu and Samburu County government offices respectively pending hearing and determination of their cases.
But in a well worded 19 page document, he said on Thursday that the judge found that subsection 62(6) of the Anti-Corruption and Economic crimes Act which exempts Governors, among certain other State officers from suspension, unconstitutional for perpetuating discrimination.
Subsection 62(6) provides that state or public officers who are charged under the Act shall be suspended until completion of their trial, except for State or public officers for which there is a Constitutional mechanism for their removal.
“While Judge Ngugi judicial activism and purposive interpretation of the Constitution is laudable if not admirable, I respectfully disagree with her views on section 62(6) of the Anti-Corruption and Economic Crimes Act,” Kindiki who is also the Tharaka Nithi Senator differed.
He continued: “It is noteworthy that a full application of her views on this section would mean that State/Public officer including Members of County Assembly (MCAs), Members of Parliament (MPs) including Senators, Governors, Judges, and Members of Independent Constitutional Commissions once charged under with corruption or economic crimes shall be suspended from office until when the criminal process abates or the charges are otherwise terminated,”
“The learned Judge is, respectfully, wrong,” the deputy speaker noted.
According to him, subsection 6 of Section 62 exempts from suspension during a criminal trial, State Officers or Public Officers in respect of whom the Constitution has provided an alternative mechanism for their removal.
“Particularly exempted from suspension- and for good reason- are Judges and Members of Independent Constitutional Commissions who may be removed through tribunals established under the Constitution,” he explained.
The Deputy Speaker observed the mechanism for removal from office of Judges is not applicable to, for example, Cabinet Secretaries, Principal Secretaries or officers in the civil service, yet there is nothing Unconstitutional or discriminatory about it.
While MPs may be removed either by recall under article 104 of the Constitution or by being found to have violated Chapter six of the Constitution (per Article 99(2) (h) of the Constitution, Kindiki noted Governors who are charged in Court may be removed from office through an alternative mechanism of impeachment, as provided for by Article 181(1) (c), as being charged constitutes “serious reasons for believing that a County Governor has committed a crime under national or international law”.
“I consider allowing the suspension of elected leaders from office who are facing criminal charges susceptible to abuse whereby the criminal justice system may be misused by political rivals to have a political leader charged and subsequently suspended from office,”.
At the same time, the deputy speaker has lashed out at Deputy Governors James Nyoro (Kiambu) and Julius Leseeto (Samburu) for declaring themselves as acting governors.
When not in the office, Kindiki noted , the Governor may be deemed absent from the office but is not necessarily absent from the County.
As such he explained that an assumption by a Deputy Governor to the office of the Governor or such Deputy Governor purportedly performing any of the functions, or exercising any of the powers of the Governor simply because the substantive Governor has been charged in Court and slapped with a court order not to access the County office, is unconstitutional, illegal, null, void and of no legal consequence.
“The emerging habit, therefore, of Deputy Governors declaring themselves as the “Governors” or “Acting Governors” when the respective substantive Governors are charged and barred from accessing the County offices is prima facie unconstitutional, illegal, null and void,” Kindiki noted.
However, he said, a governor who cannot access the County office due to a Court order has the liberty and discretion to appoint the Deputy Governor as the Acting Governor, but such appointment cannot not be forced on such a Governor.
The Tharaka Nithi senator held unless and until the substantive Governor legitimizes such performance of functions or exercise of powers in writing by appointing the Deputy Governor to act as Governor.