Waititu ruling turns focus on deputy governors’ powers to run counties

A recent High Court ruling by Lady Justice Mumbi Ngugi which directed that governors charged with economic crimes should not access their offices for the duration of their trial has raised queries on the running of the affected counties, as embattled Kiambu Governor Ferdinand Waititu became the second victim of the ruling.

Anti-Corruption Court Magistrate Lawrence Mugambi Tuesday upheld Justice Ngugi’s decision, directing Mr Waititu to keep off from running Kiambu County’s affairs.

The Constitution provides that the governor’s office becomes vacant if the holder dies, resigns, ceases to be eligible to be elected county governor or is convicted of an offence punishable by imprisonment for at least 12 months.

The deputy governor only assumes office if the governor’s office becomes vacant.

“I grant the accused persons bail on the conditions that they should not access their office pending the determination of this trial,” said Mr Mugambi.

Mr Waititu and his wife, Susan Wangari, spent another night in jail after failing to meet their bail conditions.

While the governor’s lawyers had put up a spirited fight earlier on pleading with the court not to bar him from accessing his place of work, the magistrate dismissed their pleas, saying his rights would not be violated in any way. His lawyers indicated that they would challenge the decision locking him out of office.

Considering the fact that cases take a considerably long period of time in Kenya’s corridors of justice, Mr Waititu’s deputy, Dr James Nyoro, is expected to take a central role in the running of the county government.

Samburu Governor Moses Kasaine was the first to fall victim to the court ruling.

According to Justice Ngugi, governors, like other civil servants, should step aside once charged with a criminal offence and their roles completely taken over by their deputies for the duration of the trial.

Questions have, however, arisen as to the powers of deputy governors in the unfolding scenario, including whether they can appoint county executives or summon cabinet meetings.

Justice Ngugi issued her precedent-setting ruling in a case in which Mr Kasaine wanted his bail terms reviewed after the trial court barred him from accessing his office for the duration of his trial after he was charged with graft related charges. He has appealed the decision.

The judge had termed Section 62(6) of the Anti-Corruption and Economic Crimes Act (ACECA) protecting State officers from stepping aside from office while under prosecution for criminal charges as unconstitutional.

On Tuesday, the magistrate restated this section of the law and the decision in its entirety, saying the accused person’s rights would not be jeopardised in any way but will instead guarantee integrity of the case as well as protection of witnesses.

He pointed out that since in this case witnesses are going to be county employees, it is prudent enough to block the accused from going back to their places of work as well as avoid tampering with evidence.

Mr Waititu, his wife Susan Wangari and eight others have been charged over irregular Sh588 million tenders for upgrading of various gravel roads within Kiambu.