Governors file petition to allow them remain in office after facing graft charges

The High Court has directed that a case filed by County Governors seeking protection from being denied access to their offices once charged with criminal offences be heard by a three-judge bench.

Justice James Makau certified the petition as urgent and ordered that it be mentioned on October 21, 2020 before the panel of judges.

“…the Deputy Registrar of the Constitutional and Human Rights Division to promptly and without delay transmit the file to His Lordship the Chief Justice to appoint a bench of not less than three (3) judges to hear and determine this Petition,” reads the court order.

The Director of Public Prosecutions (DPP), Ethics and Anti-Corruption Commission (EACC), and the Inspector General of Police are listed as respondents in the case filed by the Council of Governors (CoG).

The county bosses argue that a major trend has emerged in the prosecution of corruption and economic crimes cases where Governors have been “targeted for prosecution and constructively removed from office in breach of the constitutional removal provisions and procedures .”

CoG Chairman Wycliffe Oparanya, in his affidavit supporting the petition, submits that ‘stepping aside’ entails Governors being asked not to access office -indefinitely – without any supporting law to provide for the duration and status of the governor the ‘stepping aside’ period.

Oparanya further points out that the law that not state whether a governor can perform any executive functions during the stepping aside.

“The concept of stepping aside has presented major difficulties in the running of county government operations. It has created a paralysis and confusion in the performance of county government functions thereby undermining service delivery and the objectives of devolution,” reads the affidavit in part.

The Governors further argue that when EACC and DPP apply to the magistrate that a governor charged with a criminal offense should be barred from accessing offices because the ‘office of the Governor’ is a ‘crime scene’ it is not clear what this means.

‘Crime scenes’ are protected for purpose of collecting evidence. After this has been done it ceases to be of interest. By the time DPPt  charges a Governor in court, he must have collected and protected sufficient evidence in this regard.

Why the continued fascination that the office of the Governor remains a crime scene? Simply prosecute the matter in Court. Why the side-show? How will ‘stepping aside’ from office help DPP’s case in court when investigative agencies have already completed investigations?” reads the affidavit.

The Governors are also questioning why other elected leaders including Members of Parliament are not asked to step aside once charged with criminal offences.

“Members of Parliament, MCAs, and Governors are all elected persons. They are elected through universal adult suffrage. When charged in Court, DPP only pushes the stepping aside narrative for governors. He does not advance the stepping aside of elected MPs who play a role in the management of National Government Constituency Development Funds,” reads the court documents.

Some of the County bosses who have been barred from office after prosecution include Mike Sonko (Nairobi), Okoth Obado (Migori),  Moses Lenolkulal (Samburu), Ali Korane (Garissa), and Muthomi Njuki (Tharaka Nithi).