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Anti-graft mood prevailing in Kenya should be clad in iron



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I often warn my friends that those who sleep longer hours are ruled by those who sleep less. I don’t mean one should deny themselves a good night’s sleep. No, make sure you get enough sleep, but not a second longer than is necessary. Some regard my caution as pure alogism. But my point is that so much is in our urgency to prevent others from trampling on us. We, the people, hold the keys to our own liberty and freedom. I don’t deny powerlessness is real. But the power to liberate ourselves from the tyranny of the state, or the ruling elite, is in our individual and collective hands. We are our own liberators.

It recently happened in Sudan when the people took to the streets and collapsed the 30-year despotic rule of Omar Bashir. It’s happening in Hong Kong where the People’s Republic of China has been trying to impose a republic of fear. I am not suggesting a people’s revolution is threatening the Kenyan state. But I am saying that our people have reach

In the contradiction between tyranny and freedom, every society at some point reaches an inflection point.

ed a tipping point. They’ve had it, and are utterly fed up. They can’t take the brazen looting of the public purse by politicians and bureaucrats any longer. They want change. Let me tell you why, and how.

Recently, Justice Mumbi Ngugi opined that county governors indicted for corruption and economic crimes must be barred from public office for the pendency of the case. That’s why anti-corruption court Magistrate Lawrence Mugambi ruled that Governor Ferdinand Waititu, the rabble-rousing Kiambu County boss, was barred from his office while under indictment for corruption. Mr Waititu suffered another political blow when Justice Ngenye Macharia flatly – and utterly – rejected his appeal to be allowed back in his office. Echoing both Justice Ngugi and Magistrate Mugambi, Justice Macharia ruled that it would be a mockery of justice to allow Mr Waititu access to the same office he’s accused of abusing to line his own pockets and those of his family.

Prof Tom Ojienda and Nelson Havi, Mr Waititu’s able lawyers, put up a good fight, but it was all for naught. They had a bad client at a very inopportune time for bad clients in Kenya. I can guarantee that a year ago, Prof Ojienda and Mr Havi would’ve got their client back in office in a jiffy. Until recently, Kenyan courts – with the exception of a few judges associated with the Constitutional and Human Rights Division of the High Court – have generally aided and abetted corruption. They’ve done so by succumbing to inducements by corrupt cartels and threats from the Executive to let suspects of economic crimes go scot-free. The Executive appears to have dialled back the pressure.

Mr Waititu didn’t, however, believe that his luck had run out. And why should a man who had always played a complicit system believe that the gravy train was about to stop? He sought advice in a bid to defeat justice. That’s when some high-powered lawyers offered him bad legal advice. He was advised that he could conduct county business as governor so long as he didn’t do so from his official office in Kiambu Town. He attempted the charade of “inspecting” development projects in other parts of Kiambu. He wanted to show that he was still the sitting and effective governor. But the court stopped him in his tracks – he was effectively suspended as governor. Suspended, not removed from office.

The judges opined that the Constitution anticipated in the structure of county governments the probability of a vacancy in the governor’s office. In that event, the deputy governor would execute the duties of the office of the governor until the court case was concluded, one way or another. Thus Mr Waititu may not – and cannot – exercise any gubernatorial duties wherever he sits – in his house, in Nairobi, in any part of Kiambu, or the planet Mars. If Kiambu was a car, the keys have been handed over to Deputy Governor James Nyoro. Mr Nyoro is now in the driver seat and Mr Waititu isn’t even a passenger. Mr Waititu might as well do Route 11, a euphemism for walking.

In transitional justice lexicon, officials found culpable of gross abuses are lustrated – barred from office indefinitely or for a certain period. The jurisprudence pioneered by Justice Ngugi and her colleagues suggests that the courts are losing the appetite for protecting corrupt public officials.

At a minimum, elected officials – governors, MPs, and MCAs – must step aside, or be suspended, once they are indicted for economic crimes or serious offences such as murder like Migori Governor Okoth Obado. The Supreme Court needs to clad this rule in iron. I agree elected officials shouldn’t be removed upon indictment, but should be barred from office until the case is concluded. But bureaucrats must be fired pronto upon indictment.

Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC. @makaumutua

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