Supreme Court drives last nail on Mike Sonko's political coffin

Former Nairobi Governor Mike Sonko. [Collins Kweyu, Standard]

The Supreme Court’s decision has swiftly and effectively ended former Nairobi Governor Mike Sonko's political career.

The record judgment prepared in one day ended Sonko's bid to vie for Mombasa governorship by dismissing his impeachment appeal.

The decision cut short his win before the High Court had ordered the Independent Electoral and Boundaries Commission (IEBC) to clear him for the Mombasa contest.

The highest court in the land affirmed his impeachment by upholding the High Court and Court of Appeal verdicts and consequently hammering the last nail of his political career.

The judgment further locks him out of any public office as the law stipulates that anyone impeached for failure to uphold Chapter Six of the Constitution is ineligible to hold office.

A seven-judge bench composed of Chief Justice Martha Koome, her deputy Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko unanimously agreed that the Nairobi County Assembly and Senate followed the law while kicking him out of office.

The court said Chapter Six, which deals with the integrity and ethics of public office holders, was not passed for cosmetic purposes.

 “Chapter Six of the Constitution was not enacted in vain or for cosmetic reasons. The authority assigned to a State officer is a public trust to be exercised in a manner that demonstrates respect for the people; brings honour to the nation and dignity to the office, and promotes public confidence in the integrity of the office. It vests in the State officer the responsibility to serve the people, rather than the power to rule them,” said Supreme Court judges in the verdict handed through the email.

“This appeal lacks merit. It is accordingly dismissed.”

Lawyers Dudley Ochiel and Shadrack Wambui, in reaction to the judgment, said the verdict spelled the end of Sonko’s political career. This, they say, is a lifetime lockout.

"This case sets the record for two reasons. First, it is the first case the Supreme Court has heard and decided in less than 24 hours. Second, it is the first Chapter Six case to be conclusively heard and determined by the Supreme Court. The legal impact is that Sonko is now banned for life from holding public office,” said Ochiel.

Mr Wambui, however, had a different perspective. He said that Sonko could seek to reopen the case on the basis that one of the judges is before Judicial Service Commission (JSC) over alleged misconduct.

“This could mean that Sonko will never occupy any public office for the rest of his life as he has been found to be legal and morally inadequate in the eyes of the apex court of the land. This could mean that Sonko will never occupy any public office for the rest of his life as he has been found to be legally and morally inadequate in the eyes of the apex court,” said Wambui.

“Be that as it may, it may not be the end for Sonko. Recall that one of the judges in the High Court who heard his petition has since been interdicted or on suspension because of his ills or involvement thereto during the said hearing. This could be his straw to clutch on. He can reopen the matter by seeking the nullification of the judgment of the three judges at the High Court and continue on three the channels of appeal again. It has been done before and Sonko’s die may not, after all, be cast.”

Lawyer Dancan Okatch equated the verdict to a life sentence. He says that it is too harsh for those found to have violated Chapter Six to be alienated for life while those convicted with murder are given lighter sentencing.

"The disqualification becomes a life sentence that Sonko must serve without any possibility or avenue of pleading for a reduction or even presidential mercy under the power of mercy as would be available to any person convicted and sentenced for any other criminal offence," said Okatch.

 The High Court in Mombasa had ordered IEBC to clear Sonko on the basis that he had a pending appeal before the highest court in the land.

On Thursday, his lawyers Wilfred Nyamu and Dr John Khamimwa put up a spirited argument to have the appeal heard another day. However, the arguments were thrown out.

Yesterday, the Supreme Court justified why it needed to settle the issue of Sonko’s eligibility to vie. According to that court, the verdict had a bearing on IEBC’s preparation for the August 8 election. It was an urgent issue, it said.

“It is not lost to us that, given the fact that the elections are due to be held in the next 24 days, the determination of this appeal will have a direct bearing on the preparations being undertaken by the eighth respondent, especially in respect of the appellant who has declared his intention to contest an elective seat. The appeal, for these reasons, is, therefore a matter of urgency,” judges said.

Sonko was a governor for Nairobi until December 17, 2020, when the county assembly removed him from office through impeachment.

 The county’s decision was affirmed by the Senate, which voted in the plenary. Senators voted on 11 charges related to gross violation of the constitution, abuse of office, gross misconduct, and crimes under national law against the governor.

In the first charge of gross violation of the constitution, 27 lawmakers voted 'YES while 16 voted NO. In the second charge of abuse of office 27 voted YES while 16 voted NO. On the third charge of gross misconduct, 27 voted YES and 16 voted NO. And, in the fourth charge of crimes under national law, 27 voted YES and 16 NO.

Makueni Senator Mutula Kilonzo Jr and his Nairobi counterpart Johnson Sakaja abstained.  

Aggrieved, Sonko appealed the decision before the High Court, arguing that there was no quorum. At the same time, he complained there was no public participation and he was not given a chance, through his appointed lawyer, to rebut the allegations.

He carried the three strands to the Court of Appeal and finally the Supreme Court.

Before the Supreme Court on Thursday, his lawyer argued that the former governor’s lawyer was locked out of the county, the number of Members of County Assembly who were present was contestable.

He also argued that members of the public ought to have been summoned to give their views before Senators voted on the same.

The case was opposed by the Senate, County Assembly, Sonko’s successor Ann Kananu, IEBC and Attorney General Kihara Kariuki.

After hearing the rival arguments, Supreme Court considered seven grounds. It, however, emphasized that not all the issues that were before the lower courts were open for its determination.

The first ground was whether the Supreme Court can hear a direct appeal from the Court of Appeal without certification. On this, the highest court in the land allowed an objection that Sonko had not sought its certification that the case raised public interest issues.

Judges unanimously agreed that they would have dismissed the case based on this sole ground but opted to continue in order to settle the law on impeachment.

The second issue was whether the county assembly followed the law during the impeachment process. On this, judges found that impeachment proceedings were done in accordance with the law.

The other ground was public participation. Supreme Court ruled there was an advertisement with questionnaires to the public and the impeachment sessions were open to the public.

Sonko’s other ground on if MCA’s were required to verify the charges against him was also thrown out. The court found that the mover and all members in support signed the form and included the numbers of their identification cards against their names.

At the same time, the people exercised their power through the Senate and County Assembly to uphold and defend Chapter Six of the Constitution.

The court also found Sonko had been given adequate time and opportunity to respond to the allegations but failed. According to the court, although Covid-19 had restricted people from physically appearing, the county assembly had given him an opportunity to appear virtually.

The court also found that it did not require MCAs to prove that Sonko had committed a crime so that they would kick him out.

“It does not require criminal culpability to succeed. All that is required is that the allegations be substantiated. But as a constitutional remedy, impeachment serves as an important check on the exercise of executive power regarding violations of law and abuses of power,” judges ruled.