Lawyers say Igathe’s post-dated resignation letter is enough, but warn it could be just a game of politics

The post-dated resignation of Nairobi’s Deputy Governor Polycarp Igathe has left people confused.

On one hand, the resignation appears cleverly calculated at affording a 20-day “consideration” window. On the other, it has been circulated in public and delivered to Governor Mike Sonko.

Last evening, the Independent Electoral and Boundaries Commission (IEBC) CEO Ezra Chiloba said he had not seen any resignation letter from Igathe.

But Igathe himself appeared to suggest that the horse had bolted and the process was irreversible.

“It’s a done deal, handing over as we speak,” Igathe tweeted yesterday in response to a Kenyan pleading with him to rescind his decision.

Lawyer Dennis Mosota said he need not write to the IEBC or the Governor other than for purposes of plain information. Mosota said the proper recourse for Igathe is the people of Nairobi.

“He has not resigned against Sonko but against the people of Nairobi who directly elected him. The commission merely managed the process. And he has informed the people by publishing his resignation on public platforms,” Mosota said.

According to the lawyer, Igathe’s January 31 notice of resignation was “superfluous and ludicrous” as politics has no place for notices. He also concurred that there were no clear legal format for the resignations of governors and their deputies.

His colleague and devolution law expert Peter Wanyama agrees. Still, the lawyer was cautious. “While the post-dating is not an issue, we must appreciate that there are intrigues in politics. It should not surprise anyone if he were to rescind the resignation,” Wanyama said.

Mosota concurs: “If there’s no replacement by that time he may as well rescind. For avoidance of doubt.”

This kind of resignation is not without precedent. On October 21, 2010, Truth, Justice and Reconciliation Commission member Ron Slye sent out a statement to newsrooms indicating that he had resigned from the commission following incessant leadership wrangles.

“I’m resigning from the Truth Justice and Reconciliation Commission. I have lost my faith in the commission’s ability to fulfill even a small part of its mandate,” he said in the statement.

Kaparo ruling

Two months later, after attempts were made to resolve the issues that triggered the resignation, Slye bounced back claiming his was a mere intention to resign and that the resignation letter was just a draft.

“That was misreporting because the statement was pretty clear that it was just an intention to resign not the actual resignation. I had already drafted the letter but I held it because of changing events,” said the American law professor.

Under the law, Slye ought to have communicated his resignation to the then President Mwai Kibaki. It turned out that he had not done so. He continued serving the commission until the end of its tenure and publication of the final report.

Earlier before him in 2006, Kibaki-era Cabinet ministers Kiraitu Murungi and the late George Saitoti introduced a new resignation phenomenon following sustained pressure over the Anglo Leasing scandal.

A new “step aside” wave ensued, which staved off public pressure without necessarily occasioning a legal and final resignation.

And then there was the dramatic 1998 “purported” resignation of then Gatanga MP David Murathe. In the turn of events, the resignation letter allegedly delivered by SK Macharia was disowned by Murathe although it had his signature.

“The fact of the matter is this; I have a letter purportedly written by a member to resign. I have also a letter by that member saying that he did not resign and that the letter was a forgery. I will do the simplest thing over this saga, which is to take Murathe’s word for it,” Speaker Francis ole Kaparo ruled.

Kaparo ruled that members wishing to resign must bring their letters to his office and produce a national ID to verify their identity.

The lawyers we spoke to concurred that Sonko can continue for the rest of the term without a deputy.