Enforcing Chapter Six

By Dennis Ndiritu

The High Court breathed life into the gasping war on corruption in July this year when Justice Mumbi Ngugi declined an order of revision from Samburu Governor Moses Lenolkulal which challenged a ruling from the magistrates court that barred his access to office pending the hearing and determination of his graft case. In the case, Lenonkulal is charged with five counts in ‘ACC No. 3 of 2019: R v Moses Lenolkulal and 13 others’ thus: four counts under the Anti-corruption and Economic Crimes Act (ACECA) and the offence of unlawful acquisition of public property contrary to Section 45(1) (a), as read with section 48(1) of ACECA; he is accused of using his company – Oryx Service Station – to supply petrol and diesel to the county. He was released on bail, whose terms were the deposit of a Sh150 million bond and a surety of the same amount or an alternative of Sh100 million cash bail. Hon. Murigi issued interim orders prohibiting him from accessing Samburu County offices pending filing, hearing and determination of an application to be made by the prosecution. The bail amount was among the highest ever slapped on a graft suspect by the Judiciary, and thus the Governor sought a review of the Sh100 million bail terms given, a day after denying the graft charges.

In the letter seeking revision, the applicant made a three-pronged attack against the order of the trial court arguing, first, that the applicant is the duly elected Governor of Samburu County by virtue of Article 180 of the Constitution and as such, he is a constitutional office holder within the meaning of Section 62 (6) of the Anti-Corruption and Economic Crimes Act (ACECA), who could therefore only be removed from office on grounds provided for under Article 181 (1) of the Constitution and pursuant to the procedure set out under Section 33 of the County Government Act. 

He further contended that the impugned order of the trial court bars the applicant, a constitutional office holder, from accessing the offices of the County Government of Samburu without written authorisation from the chief executive officer of the Ethics and Anti-Corruption Commission (EACC) – who may allow such access upon laying down conditions with respect to such access – and as such the said order was illegal and unconstitutional to the extent that it amounts to the removal or suspension of the applicant from office in a manner contrary to the express provisions of Article 181 (1) of the Constitution and Section 62 (6) of ACECA.

Lenonkulal highlighted the impracticality of the operationalisation or implementation of the order as the intention of the order to have the Governor seek the authorisation of access from the CEO of the EACC on a daily basis would render the order impracticable as, in the event the authorisation is denied, the Governor would be unable to access his office. This would imply the CEO of the EACC would be seen as controlling the affairs of the office of the duly elected Governor of the County Government of Samburu, and thus this order would have more adverse impacts than imagined. In essence, the governor fronted the argument that ‘political hygiene’ which Chapter Six of the Constitution speaks to, purports that in a matter such as this in respect of a holder of a constitutional office in respect of which the Constitution sets out a mechanism for removal, the constitutional mechanism takes primacy over the criminal process.

In its determination, the court gave due consideration to the likely impracticality of the order but recognized the perspective that looked beyond the interests of the individual holder of the constitutional office and considered the wider public interest. This perspective spoke to the heart of Chapter Six and to the question of ‘political hygiene’, and was one that raised serious concerns that required judicial consideration with respect to Section 62(6) of ACECA. 

In enacting ACECA in 2003, Parliament intended to provide the legal regime to deal with matters of corruption, and it follows that it was necessary to make provision for suspension of a public or state officer who has been charged with corruption, with such suspension not becoming a derogation of any of the rights of such officer. The courts have given credence to this idea, expressing the view that such suspension is not a violation of rights and is in accord with the constitutional provisions in Chapter Six requiring integrity from public and state officers.

Such have been the instances in ‘Thuita Mwangi & 2 others v Ethics & Anti-Corruption Commission & 3 others’ [2013] eKLRwhereJusticeDavidMajanja noted: “…Section 62 must be read in context of its purpose, the overall purpose of the Act and the spirit enshrined in Chapter 6 of the Constitution. Suspension does not amount to a penalty but merely suspends certain rights pending determination of the trial. In the event the person is acquitted the full benefits are restored. If the person is convicted, then the suspension merges into a penalty.” 

This was latter buttressed in ‘Moses Muteithia & 5 others v Jacob Muthomi Kirera & 4 others’[2017] eKLRwhere JusticeFrancisGikonyo emphasized thatsuch suspension was lawful and within the realm of employment laws and other laws which deal with matters of integrity such as ACECA and suspension at half pay pending conclusion of the case is not really a violation of the presumption of innocence but instead safeguards this right against prejudice as termination of the case would amount to restitution of full benefits. 

Thus it is paramount thatthis statutory provision be understood within the inviolable wider objects of the Constitution to foster integrity for leadership in public service. Leadership and integrity are broad and majestic normative ideas. They are the genius of our constitutional fabric whose open-textured nature reveals that they were purposefully left to accrue meaning from concrete experience. Whereas these concepts germinate from the ground of normativity, they grow in the milieu of the facticity of real experience. Their life blood will therefore be our experience, not merely the abstract philosophy or ideology that may underlie them. 

In considering the contested statutory provision, it was important for the Governor to have regard to the provisions of the Constitution with regard to leadership and integrity, and the national values and principles that must underpin all actions and conduct by all public and state officers and all state organs. It is evident that the people of Kenya could not have intended to then pass legislation that allowed public officers to benefit from corrupt dealings and unjust enrichment while in office. As Lady Justice Mumbi notes – correctly, in my view – it would be counter-productive to, against public interest, our constitutional ethos and a grave conflict of interest, for the governor to go back to office and preside over the finances of the County that he had been charged with embezzling. 

Justice Ngugi proceeded to deny the grant of revision orders and hence the Governor remained barred from office. 

This judgment has been lauded as a revolutionary one cutting to size the reckless attitude of public officials who seek to plunder public resources with rash abandon in view of the “protection and security” of procedural safeguards for their removal. In essence the ruling that a county governor accused of corruption must step aside pending his trial will have widespread ramifications in the country, where senior officials are often charged with graft but rarely convicted. Already it has served as a precedent in high profile corruption cases such as that of Kiambu Governor Ferdinand Waititu, who was charged with conflict of interest, abuse of office and dealing with suspect property; he has been barred from office and his appeal declined. This ruling has thus signalled that it will no longer be business as usual for constitutional office holders facing criminal charges of corruption and economic crimes.

While many, including senior colleagues in the profession, have cast aspersions on this judgment as instilling a constitutional coup in counties and serving as the new mechanism for ejection of governors, it should be noted that this ruling does not oust the jurisdiction of governors from presiding over the affairs of a county but merely changes the location of administration in the interests of justice and guarding against tampering of evidence. It is no secret that before this ruling, county governors charged with corruption allegations would plead not guilty to a case, secure release by paying cash bail and return to their normal lives while other public officials, including cabinet secretaries, would stand suspended. 

Justice Ngugi’s judgment has been lauded as a revolutionary one, which will have the effect if cutting to size the reckless attitude of public officials.

It is in light of this that Section 62 ought to be applied wholesomely and purposively to foster good governance and promote the spirit and letter of the constitution. The implied assertion that integrity of officials only rests on criminal conviction is a dangerous and self-serving ploy that can only further erode the ethos and values so cherished in our constitution and further the wrong judicial narrative impliedly in ‘International Centre for Policy and Conflict & 5 Others v AG and 5 Others’ (2013) eKLRand ‘Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others’, Civil Appeal No. 290 of 2012.

The Constitution of Kenya entrenches principles of leadership and integrity in an attempt to engender a political system in which governance is conferred on persons who believe in the common good of the people. To break away from the vicious circle of lack of integrity and unchecked powers, the framers of the constitution have laid out the characteristics of leadership under the new constitutional dispensation whose implementation relies heavily on robust and sound judicial scions of the law like Lady Justice Ngugi.

And while it is acknowledged that the transformative tenets of this Constitution rest on, among other things, Chapter Six’s provisions on leadership and integrity, this ruling is long overdue and a shot in the arm in the fight against graft. It is about time the office of the Director of Public Prosecutions filed an application for all the other public officials, including governors charged with abuse of office, murder and corruption related offences to step aside. If the promise of integrity in leadership is to be realised, the judiciary must remain resolute and individuals whose conducts offend the constitution and other statutory provisions should not be allowed to continue to hold public office.