What Mumbi Ngugi ruling means for public officers charged with graft

Kiambu Governor Ferdinand Waititu’s continued stay in remand may be the least of his worries right now.

The issue is his deputy James Nyoro taking charge in the county courtesy of a ruling by High Court Judge Mumbi Ngugi.

In her July 24, 2019 ruling, Judge Ngugi instructed that elected executives cannot continue to attend office when facing corruption related charges.

For years, an argument has thrived that as long as accused persons are treated as innocent until proven guilty, then they continue to serve enjoying the trappings that come with power.

Before the ruling that dealt with the case of Samburu governor Moses Lenolkulal and which limited his access to his office, county governors would plead not guilty to a case, secure release by paying cash bail and return to their normal lives.

But any other public officer including Cabinet Secretaries would be suspended as soon as they were charged based on Section 62 of the Anti-Corruption and Economic Crimes Act of 2003.

The section requires that such public officers are paid half salary until the case is heard and determined.

Governors have however been relying on Section 62 Subsection 6 of the same act that provides: “This section does not apply with respect to an office, if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.”

The removal of a Governor is provided for in the constitution where impeachment would have to be pursued.

Justice Mumbi Ngugi however found that the provision: “Violates the letter and spirit of the Constitution…Chapter 6 on Leadership and Integrity saying that in releasing a governor in a criminal case, conditions must be imposed that protect the public interest.”

In her ruling, Justice Ngugi posed, “What message does it send to the citizens if their leaders are charged with serious corruption offences and are in office the following day, overseeing the affairs of the institution?”

Defence counsel fear that such a finding could lead to termination of a governor’s tenure pre-maturely.

But Justice Ngugi likened a governor’s corruption charge to a sick governor who has to stay away from office saying: “There have been circumstances in the past in which county governors have, for reasons of ill health been out of office, and given the fact that the constitution provides for the seat of a Deputy Governor, the counties have continued to function. In this case, the applicant is charged with a criminal offence; he has been accused of being in ‘moral ill-health’.

Chief Magistrate Lawrence Mugambi in his ruling in Governor Ferdinand Waititu’s case adopted the finding of Justice Ngugi.

“I concur with Justice Mumbi Ngugi in asking…how effective will prosecution of such state officers be when their subordinates are under control of indicted officers,” ruled Magistrate Mugambi.

“The first accused shall not access his office until this case is heard and determined.”

Waititu’s Lawyers are expected to secure a date at the High Court to appeal Mugambi’s decision.

The same High Court presided over by Mumbi Ngugi dismissed a similar appeal by Samburu governor Moses Lenolkulal.

Waititu’s situation is however so dire that for him to even access the office to pick his personal items will require Court clearance.

The turn of events on governors has sparked conversation in legal circles with the Samburu governor expected to lodge his formal appeal at the court of Appeal.