NAIROBI, Kenya, Jun 9 – There was no reprieve for suspended Transport Cabinet Secretary Michael Kamau on Tuesday after the High Court declined to grant conservatory orders against his prosecution.
Justice Mumbi Ngugi said Kamau had failed to demonstrate how his rights would be violated by his prosecution on a charge of abuse of office.
She did however find that his application had raised pertinent questions regarding the constitutionality of the Ethics and Anti-Corruption Commission (EACC) operating without commissioners and the effect, if any, of President Uhuru Kenyatta’s 60-day-ultimatum on the independence of the commission.
She therefore referred the matter to Chief Justice Willy Mutunga who she said would form a bench of an uneven number of judges to hear arguments on the issues and make a determination.
Kamau had argued that at the time the EACC recommended his prosecution to the Director of Public Prosecutions on the charge of illegally ordering the redesign of the Kamukuywa-Kaptama-Kapsokwony-Sirisia road at a cost of Sh33 million to the tax payer, it did not have any commissioners and was therefore non-existent.
He also accused his appointing authority, President Kenyatta, of interfering with the independence of the EACC by giving it 60 days to conclude its investigation into him and other public officials.
But the Ethics and Anti-Corruption Commission and the Office of the Director of Public Prosecutions countered that the commission could function without commissioners as had been determined by the High Court during the transition to the current Constitution.
They also refuted claims that President Kenyatta directed the investigation into Kamau which they said began in January of 2013.
But while two judges of the High Court had found that an absence of commissioners should not impede the functioning of the anti-graft body during the transition period, Justice Ngugi said it was necessary for the court to make a determination under the present circumstances where the transition has been made and all the EACC Commissioners have vacated office.
Kamau pleaded “not true” to the abuse of office charge on June 4 under the directive of Justice Ngugi after she found that he would face no prejudice and that he could not claim that he would not be accorded a fair hearing even before the proceedings commenced.