Will Mike Sonko's bid yield the results he badly wants?

Former Nairobi Governor Mike Sonko addresses Azimio la Umoja supporters during a public rally at Bomani, Likoni in Mombasa on July 24, 2022. [Omondi Onyango,Standard]

The Supreme Court is today set to hear an application by former Nairobi Governor Mike Sonko, seeking a review of the court’s decision which dismissed his December 2020 impeachment case.

In its verdict, delivered on July 15, the court reversed the reprieve the High Court had given Sonko only two days earlier, when it ordered the electoral commission to return his name on the ballot in the race for Mombasa governor seat.

The High Court had sustained Sonko’s argument that despite his impeachment under Article 75 (3) of the Constitution, he was eligible to vie because Article 99 (3) allowed him to contest polls due to a pending appeal at the Supreme Court.

Wamuti Ndegwa, University of Nairobi law lecturer, argues that the High Court misdirected itself in handing Sonko a lifeline.

He says unlike in convictions for criminal offences, the provisions on removal of a person from public office, on account of violating Chapter 6 such as impeachment, do not require one to exhaust avenues for review or appeal. 

“Sonko’s removal and bar from holding public office took effect immediately unless there was a court order staying the impeachment and there wasn’t. There ought not to have been since impeachment is a political decision to be made by politicians in the county assemblies and Senate,” explains Dr Ndegwa.

The former governor has decided to return to the Supreme Court, seeking a review of its judgment and has also announced intention to take his tribulations to the Arusha-based East African Court of Justice (EACJ). While both options are open to him as a matter of constitutional right, critics and supporters have raised question whether this is a viable legal path for Sonko to revive his fortunes.

“Sonko is gravely and fundamentally aggrieved by the decision of the Supreme Court and in the manner in which the court, and the courts (High Court and Court of Appeal) conducted the proceedings contrary to the rule of law and the rules of natural justice with the resultant effect of a grave injustice and miscarriage of justice being visited upon him,” reads the court papers his legal team has filed at the Nairobi registry of the EACJ.

The former governor’s lawyers say they will be seeking orders of the EACJ to suspend implementation of the Supreme Court judgment, a proposition contested by legal experts.

Legal experts argue that such an interlocutory application implies the EACJ has appellate jurisdiction over Kenya’s Supreme Court. Other advocates also question whether the option to seek a review at the Supreme Court can result in any positive outcomes in form of a mandatory order to the IEBC to return Sonko’s name on the ballot

However, legal experts argue that with the Supreme Court verdict, Sonko’s political career has hit a cul de sac, at least for the next 10 years and that he has no legal manoeuvres out of his current predicament.

Ndegwa says EACJ cannot suspend the ruling of Supreme Court of Kenya and that Sonko’s attempts to politically bounce back through such legal manoeuvres, are hinged on a zero chance.

“There are too many technicalities involved,” he says, revealing that the process at EACJ will end up with a mere toothless declaration that is neither respected nor readily accepted by local institutions.

“EACJ only issues declarations as opposed to orders. The court directs its orders to partner states. It is for the partner states to take measures to implement such declarations,” argues Ndegwa, adding that suspending the judgment of Supreme Court does not help Sonko’s case since the institution at the centre of his woes is IEBC.

“IEBC is not a state partner in the East African Community and therefore is not directly bound to obey judgement of a foreign court. In any case, IEBC would not even be eager to obey the judgement since, to it, court orders are unwelcome disruptions.”

Ndegwa argues that there are no effective mechanisms for enforcing EACJ decisions. There is even no guarantee that the EACJ will agree with him in view of the fairly straight forward provision of the Constitution.

Sonko is not the first prominent politician to challenge the verdict of the Supreme Court before the EACJ. Narc Kenya leader Martha Karua challenged the Supreme Court’s dismissal of her petition against Kirinyaga Governor Anne Waiguru’s victory and prevailed.

In the Karua case, the EACJ dismissed a preliminary objection by Kenya’s Attorney General challenging the jurisdiction of the Arusha court on grounds that the treaty founding the East Africa Community and the regional court do not envisage that the regional court can act as an appellate court over national courts.

The AG further argued that the EACJ mandate is limited to interpretation of the treaty and intra EAC member states disputes, arguments that were dismissed. EACJ held that the trial at the Supreme Court violated the founding principles of the EAC community treaty and Karua’s rights. EACJ ruled: “The Court is clothed with jurisdiction to entertain a challenge to the judicial decisions of municipal courts, ….”

The Arusha-based court further held that the Supreme Court had violated Karua’s rights under the Constitution of Kenya and Kenya’s obligations to the rule of law under the Treaty and ordered a monetary compensation of $25,000 US in favour of Karua.

“…we find that the impugned Supreme Court decision did fall short on the said judicial organ’s constitutional duty and curtailed Karua’s right to access to justice. It thus contravened the rule of law principle enshrined in Articles 6 (d) and 7 (2) of the Treaty.”

In April, the Kenyan AG lost an appeal against this judgment.

Initially, the electoral commission had declined to clear Sonko on the basis of its interpretation of Article 75(3) that impeached persons cannot vie for public office, a reasoning favoured by Chief Justice Martha Koome who also said only a court order could compel the electoral agency to clear such contestants.

The High Court’s July 13 ruling appeared to have revived Sonko’s career but the Supreme Court’s July 15 judgment, in which it declared it had no power to entertain the appeal Sonko had lost at the Court of Appeal, dashed the politician’s hopes.