Sonko’s limited options as corruption noose tightens

Wednesday, December 11th, 2019 00:00 |
Nairobi Governor Mike Sonko’s legal team (from left to right) Cecil Miller,George Kithi, Dan Maanzo (Makueni MP), Kipchumba Murkomen (Elgeyo Marakwet senator) and Mutula Kilonzo Jr (Makueni Senator) in court when the governor was charged on Monday. Photo/PD/Charles Mathai

Nairobi Governor Mike Sonko, who was on Monday charged with corruption involving Sh357 million procurement, is caught between a rock and a hard place.

The latest blow to the flamboyant politician’s career is an application by the Director of Public Prosecution Noordin Haji asking the court to order Sonko not to access the county offices.

With the county lacking a deputy governor to take over operations as he fights to clear his name in court, legal experts say there are limited ways to save the county from a constitutional crisis.

The possible solutions include Sonko resigning, being impeached by the County Assembly, the governor moving to the Supreme Court to seek an advisory or triggering an amendment on the County Government Act to allow a County Executive Committee member to chair Cabinet meetings.

Concerns over the future of Nairobi County come as the Anti-Corruption Court is today expected to rule on the governor’s bail application after he spent last night at Kenyatta National Hospital under prison guard. 

There is also a possibility of him being locked out of office if the Justice Mumbi Ngugi precedent-setting ruling on governors is applied.

Several options 

The ruling states that governors facing criminal charges in court should not be allowed to access their offices.

Yesterday, lawyer Oliver Kipchumba said Sonko has several options he could explore to save the county from a crisis.

According to him, the options include the governor resigning from office to allow the provisions of Chapter 11 of the Constitution, where the Speaker takes over pending a by-election, to take effect.

“Sonko has many options including appointing deputy governor because he is the only one who has powers to make such an appointment and this will no way be buried by the ongoing case because it does not interfere with it. He can also resign and allow provisions of Chapter 11 of the Constitution to take effect,” the lawyer said.

Alternatively, the County Assembly can impeach him and the national government takes over the running of the county.

“However, there is a caution if the government takes over the county and we go for an election; Sonko will still be eligible to vie because we will rely on the case of Uhuru Kenyatta and William Ruto who vied for the presidency despite having a case at the International Criminal Court,” the lawyer said.

Senate deputy majority whip Irung’u Kang’ata, a lawyer, said the governor or a citizen can move to the Supreme Court to seek an opinion on how to avoid a crisis in the county.

Access office

According to the Murang’a Senator, unlike in the cases of governors Ferdinand Waititu (Kiambu) and Moses Lenolkulal (Samburu), who are also fighting graft cases, Nairobi does not have a deputy governor to take over temporarily.

 “An advisory opinion on the issue should be sought before the Supreme Court either by Sonko, the Council of Governors or the Senate,” he said.

 “The issue becomes more important now that Sonko doesn’t have a deputy, and the Speaker can only hold office if there is a vacancy and for a limited period.”

Lawyer Danstan Omari and his constitutional counterpart Bobby Mkangi said even the court were to bar Sonko from accessing his office, it’s not automatic that Speaker Beatrice Elachi will take over.

On whether Sonko can appoint a deputy governor now, Omari says that until the court pronounces itself on whether he should access office or not, he still has a right to nominate one, but the nominee has to be vetted by Members of County Assembly.

But according to Omari, there could be hurdles. “If he appoints a deputy now, there could be no MCAs to vet the nominee since they could be going on recess which technically means Speaker Elachi takes over.”

But according to Mkangi, denial of access to the office does not create a vacancy in the office of the governor. 

Article 183(4) of the Constitution states that the office of the governor shall become vacant if the holder of the office dies, resigns, ceases to be eligible to be elected county governor, is convicted of an offence punishable by imprisonment for at least 12 months or is removed from office through impeachment.

The law states that in the event a vacancy arises in the office of county governor and that of deputy governor, or if the deputy governor is unable to act, the Speaker of the County Assembly shall act as county governor, but only for 60 days.

On Monday, the prosecution asked the court to deny Sonko bail arguing he would interfere with witnesses who are junior officers and employees at the county government.

“Sonko is an influential, flamboyant and wealthy public figure with rowdy sycophantic followers, who on numerous occasions have threatened and demonstrated to act outside the realm of the rule of law,” said the prosecution in an application that is equal to asking that he be barred from accessing office.

Weighing in on the debate, lawyer Bernard Kipkoech Ngetich argued that the law does not bar Sonko from nominating a deputy even if he is to remain out of office until the court matter is concluded.

Fresh charges

“If barred from office, Sonko will remain the governor. He can go ahead and appoint a deputy. The law does not bar him from executing his functions,” said Ngetich, a Law Society of Kenya Council member.

But Dagoretti North MP Simba Arati said the burden had shifted to the court to give direction once Sonko is blocked from accessing City Hall.

“The county is in limbo and the Speaker cannot be governor. The process of impeachment is long. It is the responsibility of the court to give direction,” said Arati.

The MP noted that matters could be complicated further if the governor is re-arrested to face fresh charges. 

“The seat would be technically vacant and this calls for direction.”

Nairobi Senator Johnson Sakaja, who has accused Sonko of deliberately walking the county into a constitution crisis, says that to save the situation, the court should make a decision on Nairobi’s fate, should it ask Sonko to stay out of office.

“It’s the court which makes a decree on what should happen in case a governor is charged over graft.

It should also pronounce itself on this case, perhaps ordering one of the County Executive Committee Members to take over operations temporarily,” he said.

The governor fell into trouble at a time when President Kenyatta has declared that those suspected to be engaged in corruption should carry their own cross.

“When you were stealing, you were not with your brothers, sisters, your tribe or church. You stole alone and so you must carry the cross alone,” said the President on Sunday.

The President has also warned that graft suspects should not call him when in trouble.

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