Uncertain times for city county as governor faces legal battles

Beatrice Elachi at a Milimani court.

The arrest of Nairobi Governor Mike Sonko and its anticipated legal twists and turns now puts Nairobi in a peculiar position.

The county boss sits at the apex of City Hall alone, having failed to nominate a deputy governor following the resignation of Polycarp Igathe months after election.

According to analysts, his arrest and possible prosecution might bring with it unexplored legal options.

According to Kenya Law Reforms Commission Chief Executive Officer Joash Dache, there are three scenarios to be explored to address the Nairobi situation based on the court’s directive regarding the governor’s case.

In the first scenario, Mr Dache says the governor is still allowed by law to nominate his deputy and forward to the County Assembly for consideration and approval.

“Scenario two, the Speaker can assume office. This situation has not been tested. Other than the Speaker who takes in a temporary basis for sixty days before election is held, who else is supposed to act in the absence of the DG?” he questioned.

He recalled the Supreme Court advisory opinion, allowing governors to nominate their deputies within 90 days, and which Sonko nominated lawyer Miguna Miguna and the County Assembly rejected.

“The principle of necessity envisages such. However if these don’t work, Nairobi being the country’s headquarters, the National Government has an interest and therefore the Devolution Cabinet Secretary Eugene Wamalwa, through Executive Order No 1 of 2018 can designate someone to act,” he stated.

He said it is not expressly in law but the Devolution ministry deals directly with counties and therefore the instrument stands.

Although Director Public Prosecutions Noordin Haji has ordered the prosecution of Sonko for the crimes of conflict of interest arising from having received monies from the County of Nairobi whilst serving as Governor, unlawful acquisition of public property, money laundering and other economic crimes, he can only lose his seat if convicted for more than one year.

However, going by the precedence set by High Court Judge, Justice Mumbi Ngugi barring charged governors from accessing their officers terming them “scene of crime”, Nairobi county could be in for a long haul.

The same Article states that the governor may be removed from office on any of the following grounds, gross violation of this Constitution or any other law, where there are serious reasons for believing that the county governor has committed a crime under national or international law, abuse of office or gross misconduct; or physical or mental incapacity to perform the functions of office of county governor.

Deputy Speaker Prof Kithure Kindiki (Tharaka/Nithi) and Minority Whip Mutula Kilonzo Jnr (Makueni) both concurred the situation in Nairobi is unique and might pose legal challenges.

They duo agreed that the speaker cannot take over at this point before the governor has not been removed from office.

Prof Kindiki stressed that the barring of the governor from accessing office only applies to the identified headquarters and therefore he can still undertake his role outside.

“The crisis is inevitable. If the court bars him from accessing his office, the county executive will have no one to chair or executive the mandate of governor,” said Kilonzo Jnr.

“Given  that there is not deputy governor, The county assembly Speaker Elachi will act but only for 60 days. A constitutional crisis looms as no election can be held thereafter since technically, Sonko will not have vacated office,” tweeted former Senator Bonnie Khalwale.