Justice Ngugi is right; all those charged with graft should step aside

The conversation on “political hygiene” in Kenya was brought to the fore by PLO Lumumba in his book, ‘A call for hygiene in Kenyan politics’.

The book drew my attention to the unhygienic, morally fraudulent and outrageously manipulative nature of our politics.

Aside from negative ethnicity, corruption is the other thing that is crippling our country and has taken away political hygiene.

Politicians have abused their delegated authority to pass laws that are selfish and discriminative that only serve sectarian interests. They always find a way to cover themselves.

Chapter Six of the Constitution speaks to the “political hygiene” and infers that the authority assigned to State officers is a public trust to be exercised in a manner that demonstrates respect for the people, brings honour to the nation and dignity to the office one holds, and promotes public confidence in the integrity of the office.

Article 260 further defines a “State officer”, and lists them to include Members of Parliament, judges, Cabinet secretaries, Members of County Assemblies, governors or deputy governors among others.

This conversation has been re-ignited in two ongoing cases involving governors Moses Lenolkulal of Samburu and Kiambu’s Ferdinand Waititu on whether county bosses should step aside once charged with a criminal offence.

Under Section 62 of the Anti-Corruption and Economic Crimes Act, a public or state officer charged in court stands suspended pending conclusion of their trial, the period of which such officer will be on half pay.

Collective conscience

However, parliamentarians in their conspiracy, when crafting the Act, contradicted the above requirement in Section 62(6) by providing that the same would not apply to an office, including for governors, for which the Constitution limits or provides for the grounds for removal or the circumstances in which the office must be vacated.

In making a determination in the Lenolkulal case, Justice Mumbi Ngugi (pictured) asked very pertinent questions about Section 62(6) that should stimulate our collective conscience: “Could the people of Kenya have wished to have their legislative authority, which they have delegated to the Legislature, be exercised in such a way as to pass legislative provisions such as Section 62(6) that allow state officers whose removal is provided for in the Constitution to remain in the same offices they are alleged to have abused and used them to their personal enrichment, to the detriment of the public they are supposed to serve?”

“Should they continue to enjoy the trappings of the office as they face corruption charges alleged to have been committed in the office and (yet) remain in the same offices?”

She further stated: “It seems to me that the provisions of Section 62 (6), apart from obfuscating, indeed helping to obliterate the ‘political hygiene’ to the constitutional requirements of integrity, are against the national values, and the principles of leadership in Chapter Six of the Constitution.

Higher integrity

In essence what this section of the law does is to place a higher integrity threshold on lower cadre officers by proscribing suspension on half pay immediately they are charged in court whereas the people who bear the greatest responsibility and capable perpetuating impunity go scot-free.

On protection of public interest and ensuring that elected officials do not use their position to undermine their prosecution, Justice Ngugi posed: “The officer is charged with enriching himself at the expense of the people he is expected to serve.

“Would it serve the public interest for him to go back to the office and preside over finances that he has been charged with embezzling? What message does it send to the citizen if their leaders are charged with serious corruption offences and are in the office the following day, overseeing the affairs of the institution?

“How effective will the prosecution of such officers be, when their subordinates who are likely to be witnesses are under the direct control of the indicted officer?’’ 

These questions by the judge demonstrate a delicate balancing act between protecting the office and the officers holding high offices vis-a-vis the public interest and according to her the larger public interest should always prevail.

It’s now upon the anti-corruption agencies to initiate the process of reviewing the law to conform with the Constitution.

 

Mr Mbiti is a legal officer at EACC