Waititu petitions barring arraigned governors from offices

Former Kiambu governor Ferdinand Waititu want the Supreme Court to stop magistrates from denying governors access to their county offices on account of pending corruption cases.

Through lawyer Prof Tom Ojienda, Mr Waititu yesterday told the apex court that there was a “bad” legal precedent the magistrate courts and High Court set in denying county bosses access to their offices once charged with corruption.

Prof Ojienda said the Court of Appeal upheld the precedent in 2019.

“The courts below created a new avenue for removal of a sitting governor. Once he or she is arraigned, one is guilty until proven innocent.

“The courts departed from the provision created in the Constitution for the removal of a governor from office,” he said.

Prof Ojienda said Article 181 of the Constitution and the procedure set out under Section 33 of the County Government Act provide conditions for the removal of a governor from office, but arraignment is not among them.

The senior counsel submitted that trial courts widely use Article 49 (1)(h) of the Constitution on rights to bond or bail to remove governors from going to their county offices as a condition for pending the criminal trial.

He described the condition as excessive, stringent and a backdoor method of removing a sitting governor.

Prof Ojienda urged the five-judge bench presided by Justice Mohammed Ibrahim to rule that denying a governor access to his office because of a pending corruption case violates the right to a fair trial. The other judges on the bench are Justices Njoki Ndung’u, Smokin Wanjala, Isaac Lenaola and William Ouko.

Prof Ojienda and his co-advocate Evans Oganda said the stringent bail term, which emerged from Justice Mumbi Ngugi, now an appellant judge, has been used to hound governors from power, condemning them unheard.