The Justice Mumbi Ngugi ruling, which instructed that elected executives cannot continue to attend to office functions when facing corruption related charges, has been upheld.
Court of Appeal Judge Jamila Mohammed on Friday ruled that the High Court ruling was constitutional as the governor’s seat was not vacated.
She was referring to the case of Samburu Governor Moses Lenolkulal which limited access to his office.
“It does not amount to his removal from office….I agree it only amounted to a constructive measure. Neither the judge or the magistrate purported to remove him from office. He’s still the governor. The Judge can’t be accused of having removed him from office,” Justice Jamila Mohammed said.
“On whether the cash bail granted is harsh, setting of bail is a discretion of the court. We have no basis of faulting the judge. We dismiss the appeal,” she added.
In the past, county governors charged with an offense would plead not guilty, secure release by paying cash bail, and then return to their normal lives.
However, any other public officer including Cabinet Secretaries would be suspended based on Section 62 of the Anti-Corruption and Economic Crimes Act of 2003 as soon as they were charged with an offense.
On July 24 this year, Lady Justice Mumbi Ngugi dealt a blow to Governor Lenolkulal.
She found that the provision for removal of an elected executive, as provided for in the constitution where impeachment would have to be pursued, violates the letter and spirit of the Constitution.
She cited 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.
“What message does it send to the citizens if their leaders are charged with serious corruption offenses and are in office the following day, overseeing the affairs of the institution?” she said.
She further likened a governor’s corruption charge to a state of ill health 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 offense; he has been accused of being in ‘moral ill-health’.”
Subsequently, Chief Magistrate Lawrence Mugambi adopted the finding of Justice Mumbi Ngugi when he ruled on the Governor Ferdinand Waititu case.
“How effective will prosecution of such state officers be when their subordinates are under control of indicted officers?” Magistrate Mugambi posed, adding: “The first accused shall not access his office until this case is heard and determined.”
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