Nairobians may not go to elections next month to elect a new governor after Anne Kananu was sworn in yesterday as the county’s deputy governor.
The short ceremony just after vetting early yesterday morning has elicited mixed reaction from leaders and legal experts on the constitutional implications.
Yesterday, senators Mutula Kilonzo Jnr (Makueni), Ledama ole Kina (Narok) and Stewart Madzayo (Kilifi) and lawyers Peter Wanyama and Guandaru Thuita faulted the event saying it was setting a dangerous precedent.
Nominated Senator Sylvia Kasanga and the Kenya Law Reform Commission (KLRC) Chief Executive Officer (CEO) Joash Dache however held contrary opinion.
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Thirdway Alliance party termed the happenings as “chipping off of our constitutional foundation.”
Senator Kilonzo Jnr said Nairobi County situation has put to test every legal mechanism on transition and nomination of governor and deputy under the law.
“We now have an acting governor who is not elected, pending election (which may not happen) because acting Governor Benson Mutura will resign to pave way for the DG who will appoint a deputy. This is a terrible and unprecedented legal absurdity,” said the Senate Minority Leader.
He argued that given what happened yesterday, City Hall will now likely have a governor and deputy not elected by the electorate.
“Boardroom leadership. I raised these concerns during debate on the law, the County Government Act, which was assented to by the President on the vacancy on the office of the DG. I saw this,” said Kilonzo Jnr.
He cautioned that “we must put a stop to this, otherwise the will of the people under Article 1 of the supremacy of the Constitution may soon become academic.”
Nominated Senator Sylvia Kasanga, however, had a different view, as she lauded President Kenyatta’s government for finding a solution to the Nairobi County leadership without subjecting the electorate to the ballot box just months to a general election.
According to her, the route taken by the Jubilee administration was the best as it is quiet and without any disruption that could have created political animosity.
Ole Kina termed the change of guard at City Hall a travesty of the rule of law.
“The deputy governor being appointed without the appointing authority in office just confirmed that the impeachment of Governor Mike Sonko was riddled with ulterior motives,” said the senator.
He said: “Acting Speaker Benson Mutura’s first assignment when he was sworn in was to sign the warrant to transfer funds to the Nairobi Metropolitan Services (NMS) in disregard of the court order.”
Mutura signed the governor’s warrant that in effect gave the Treasury the green light to release Sh37.5 billion to the county, paving the way for implementation of the 2020/2021 budget.
Mutura’s move brought to an end a two-month budget stalemate pitting Sonko against NMS boss Mohammed Badi.
KLRC boss Dache said the swearing in of Kananu as DG now averts the planned by-election.
“The law doesn’t specify the timeline for vetting. By Kananu assuming office, it is a done deal. She will nominate her DG once she is sworn in as governor and the current acting governor resigns,” he said.
Lawyer Wanyama took issue with the process, saying the law governing the appointment of deputy governors commenced in July 2020 and once one is vetted, the person must be appointed by the governor.
However, this he said is not the case with Nairobi where the acting governor took a mandate that is not vested upon him by the Constitution to make the appointment.
Ms Kananu (above) was nominated by Sonko who later ceased to hold office by virtue of the impeachment.
Lawyer Thuita said Nairobi residents have been denied the right to a leader of their choice by the State, adding that the assumption of office procedure was not followed. “This is a worrying trend and could derail devolution,” he said.
Senator Madzayo, also a lawyer, said it will be a priority for both Houses to pass a legislation to avoid a similar situation in future, adding that the drafters of the Constitution did not envisage the kind of problem Nairobi County found itself in as stipulated in Article 182 of the Constitution.
Thirdway Alliance acting chairman Miruru Waweru said yesterday’s development, if not checked, will act as a test for political establishments to circumvent the will of the people as enshrined in the law.