Insight

Governors Under Spotlight Over Corruption

The war against corruption in Kenya has been intensified by the Ethics and Anti-Corruption Commission (EACC).The anti-graft agency has shifted focus to County Governors, who have allegedly conspired with other people to loot public funds using their positions. A recent High Court ruling could be a game changer in the fight against corruption.

Several current and former Governors have been arraigned in court over corruption related charges, while others are under the radar of the EACC.

Many of the cases involve looting of county funds, abuse of office and conflict of interest.

Some governors are also accused of blatant abuse of procurement systems. In most cases, it is clouded by the conflict of interests where the governors use their influence to award  tenders to their families, friends and supporters.

Read our article on Methods of Procurement in Kenya.

Investigators have also pointed out cases of outright nepotism in the management of county government affairs. Employments, and promotions of staff have also not been fair and competitive.

The law provides for very stiff penalties for those found guilty of engaging in corruption. These range from hefty penalties to other deterrent measures. Refer to our section on Penalties for Corruption Offences.

Some governors who are under active investigations have in most cases rushed to court and secured injunctions. As a result, this has stalled the cases by preventing their arrest and subsequent prosecution.

Migori Governor arrested

 

Okoth Obado, Governor Migori County.He is one of the many governors facing corruption charges. Picture:Courtesy

On Monday August 31, Okoth Obado, and his children were arraigned in court to face corruption charges. He was later released on a cash bail of Sh8.7 million.

He was further barred from accessing Migori County offices until the case is concluded. Obado’s children who were his co-accused were also released on various bail amounts.

In 2019, three other governors were charged with graft-related cases and barred from accessing their offices until the cases are heard and concluded.

The three are former Kiambu Governor Ferdinand Waititu, Moses Lenolkulal (Samburu) and Mike Sonko (Nairobi). All three are battling economic crimes and abuse of office charges.

In the meantime Mr. Waititu been impeached and replaced by his Deputy James Nyoro.

Sonko is charged with 19 counts related to the theft of Sh357 million at City Hall and money laundering. Waititu and his wife, Susan Wangari, are charged with the theft of Sh588 million.

Samburu Governor Moses Lenolkulal was accused of unlawful acquisition of property worth Ksh 84.69m . He was released on April 4 on a Sh10 million bail.

The governors facing charges of graft also suffered an additional blow after Justice Mumbi Ngugi passed a remarkable ruling on July 24,2020.

High court tightening the screws

In the ruling, Justice Ngugi held that governors like other civil servants should step aside, once charged for a criminal offence. Their roles should then be taken over by their deputies for the duration of the trial.

She was ruling in an application by Samburu governor Moses Lenolkulal, who wanted his bail terms reviewed, after the trial court barred him from accessing his office for the duration of his trial.

Justice Ngugi also termed section 62(6) of the Anti-corruption and Economic Crimes Act (ACECA) unconstitutional. The section, she said, illegally protected State officers from stepping aside from office while under prosecution for criminal charges.

An appeal that would have given the governors a lifeline failed after court judges Jamila Mohammed, David Musinga, Steven Gatembu and Agnes Murgor upheld Justice Ngugi’s ruling.

Busia Governor Sospeter Ojaamong was arrested on July 4,2018. He was charged for engaging a company known as Madam R Enterprise to conduct a feasibility study on waste management which the county government had not budgeted.

In the process, the county government lost Sh8 million. Mr Ojaamong and his co-accused allegedly committed the offences between March 15 and September 25, 2014.

They faced other charges including willful failure to comply with the law relating to management of public funds and fraudulent acquisition of public property.

More corruption charges

Former Nyandarua Governor Waithaka Mwangi was also arrested on July 27, 2018 and subsequently accused of corruption.

Mr. Waithaka was charged in a Nakuru anti-corruption court with “willful failure to comply with the law relating to the procurement, contrary to Section 48 of the Economic Crimes Act, 2003”.

The EACC is in the process of identifying assets believed to have been bought using cash stolen from the counties in order to reposes them.

On April 26, 2019, former Nairobi Governor Dr. Evans Kidero was arrested following a corruption investigation involving an irregular payment of Sh68 million to a law firm during his tenure.

He, alongside other suspects faced five charges, among them money laundering, the abuse of office and unlawful acquisition of public property.

Eight other governors are under active investigations by the EACC over claims of corruption.

Governors under active investigations

They are Granton Samboja (Taita Taveta), Mwangi wa Iria (Murang’a), Charity Ngilu (Kitui), Mohamud Ali (Marsabit), Alex Tolgos (Elgeyo Marakwet),Muthomi Njuki (Tharaka-Nithi) and Alfred Mutua (Machakos).

Governor Njuki was arrested on September 4, 2020 for allegedly irregularly awarding a tender for a Sh34.9 million solid waste project.

“The project was procured, implemented and commissioned without an Environmental Impact Assessment and before being licensed by the National Environment Authority (NEMA),” Noordin Haji ,the Director of Public Prosecutions said in a statement released to newsrooms on September 4 ,2020.

On January 11, 2018, the EACC raided two homes of Mr. Samuel Ragwa the former Governor of Tharaka-Nithi County, and took away documents they believe could help them in investigating graft cases during his tenure.

There were similar raids at the home of former Isiolo Governor Godana Doyo in March 2018.Officials from the anti-graft commission sought documents relating to a Sh271 million road project which was never reported.

Three years earlier on September 13, 2017, Mr. Doyo had been arraigned in court and charged with economic crimes and the abuse of office before Meru Principal Magistrate Bernard Ochieng.

In 2015, Machakos Governor Alfred Mutua was taken to court over claims of single-sourcing and overpricing 14 vehicles for the use by the county executive committee members. At some point, the Appeal Court stopped his imminent arrest.

Murang’a Governor Mwangi wa Iria has had a case involving the misappropriation of funds.Former Garissa governor Nathif Jama and former Bomet Governor are also under investigations for the unlawful procurement of ambulances. A number of counties has been faulted over how they bought ambulances whose subsequent customisation gave room for price manipulations.

Functions of a governor

The County Governors are important in the county governments’ setup. They are the heads of the county governments, which is the second level of government. The other level of government is the national government.

Article 1 of the Constitution delegates the sovereign power of the people to the County Governments. The sovereign power of the people is exercised at both the national and county level.

The County Governor is the Chief Executive of the county and the head of the County Executive Committee. Members of the County Executive Committee answer to the Governor while performing their functions as per Article 179 (6) of the Constitution.

This explains why the governor takes final responsibility for the actions of the County Executive Committee.The County Governments Act contains the role and functions of a county governor in Kenya. Section 30 (2) of the County Governments Act stipulates the functions of the governor.

Leadership of the County Executive     

One of the roles of the governor is to appoint the County Executive Committee, as laid down in article 179(2) (b) of the Constitution with the approval of the County Assembly.

The governor also chairs meetings of the County Executive Committee. It is the governor who organizes the portfolio structure for the County Executive Committee to ensure effective and efficient service delivery.

The governor is obliged to submit an annual report to the county assembly on the implementation status of the county policies and plans.

Lastly, the governor signs notice of all important formal decisions made by the governor or by the County Executive Committee, and ensure they are published in the County Gazette.

Powers of the County Governor

Section 31 of the County Governments Act Act designates the following powers to the governor:

  • The Governor has the power to dismiss a county executive committee member. If the county fails in the service delivery to the people, the governor is responsible because the County Executive Committee members are his employees.
  • The governor can dismiss a County Executive Committee member following a resolution passed by the County Assembly (Section 40 of the County Governments Act).
  • The governor has the power to re-assign a County Executive Committee member.
  • The governor can appoint an accounting officer for each county department, entity, or decentralised unit of the county government. These accounting officers are the Chief Officers.

What Journalists should do:

  1. Follow up with the Auditor General’s reports and quarterly budget implementation review reports of the Controller of Budget. These documents will help you to point out possible areas of corruption and report about them.
  1. Read our (RoGGKenya) pages on Offenses and Penalties and Methods of Procurement in Kenya to enrich your reporting on corruption scandals.
  1. Read County Assembly Public Accounts Committee reports to identify possible areas of misuse of funds.
  1. Follow up the cases already in court to report on how the law is applied.

 

By Erick Nakitare

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