Court wants Maraga to form three-judge Bench for governors’ petition

Wednesday, October 7th, 2020 00:00 |
Justice James Makau in court. Photo/PD/PHILIP KAMAKYA

The High Court yesterday asked Chief Justice David Maraga to constitute a three-judge Bench to hear a case by governors challenging the decision to bar them from accessing office should they be charged with corruption offences. 

Council of Governors (CoG), through lawyer Peter Wanyama, filed a petition seeking protection from anti-corruption courts, which has so far barred  some of their colleagues facing graft charges.

In the petition, the CoG wants magistrates stopped from issuing orders barring them from accessing whenever they are charged with graft pending conclusion of their cases. 

Justice James Makau yesterday directed the Deputy registrar to transmit the file to Maraga without any delay for purposes of appointing the bench to hear the matter. 

Makau observed that the petition raises “weighty” and  substantial questions of law.

Governors believe the court is being used to fight them politically and to interfere with their constitutional mandates. 

“There is a major trend in the prosecution of corruption and economic crimes cases where governors have been targeted for prosecution and constructively removed from office,” he says. 

County bosses argue that it is not clear whether the order to bar a governor from accessing office applies only to the physical one at the county headquarters or it covers access to all county government offices in all the sub-counties and wards.

CoG wants the court to interpret the meaning of ‘office’ in the context of the election of governor and removal process.

Some of the county chiefs ordered not to access office during pendency of their criminal trials are Moses Lenolkulal (Samburu), impeached Kiambu Governor Ferdinand Waititu and Ali Korane (Garissa) During bail hearings, the Director of Public Prosecutions (DPP) has been raising strong objections that the accused, being a governor, should only be released on bail on condition that they do not access their offices pending hearing and determination of their trials.

CoG says the duration of staying out of office and the timelines for the criminal trial are not set.

Makes orders

He wants the court to restrain any magistrate from making orders that constructively removes governors from office once charged with a criminal offence.

“The concept of stepping aside has presented major difficulties in the running of county government operations.

It has created a paralysis and confusion in the performance of county government functions thereby undermining service delivery,” it says.

Justice Makau directed the matter to be mentioned before the panel of judges on October 21. 

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