Court seals Sonko's hopes of resuming duty

Former Nairobi Governor Mike Sonko arrives at a Milimani court on Monday, March 22, 2021. [Collins Kweyu, Standard]

Former Nairobi Governor Mike Sonko’s slim hopes of getting back his office were sealed by the High Court in a decision that concluded he was legally impeached.

Justices Said Juma Chitembwe, Weldon Korir and Wilfrida Okwany’s judgement also set the stage for the swearing-in of Deputy Governor Anne Kananu as the first female governor of Nairobi after the court declined to revoke her nomination and appointment.

Kananu will, however, not be sworn in as governor immediately after the judges issued a temporary order for 10 days stopping her from taking over from Sonko to give the ex-governor opportunity to appeal.

“She has been acting as deputy governor for the duration of this case and we find no harm if she continues in the same position to allow the petitioner to file his appeal. But for avoidance of doubt, the temporary orders will last for only 10 days and elapse on July 6,” ruled the judges.

According to the judges, Sonko shot himself in the foot and tried to run away from the mess he created when it was too late to undo the damage by nominating Kananu and failing to behave in a manner expected of a governor.

“His actions which led to the impeachment did not portray good governance expected of a State officer. We cannot fault the county assembly or the Senate for impeaching him when there was overwhelming evidence that he had violated the Constitution,” ruled the judges.

At the centre of the dispute challenging Sonko’s impeachment last December were two petitions, one challenging the nomination of Kananu as deputy governor and the second challenging Sonko’s impeachment.

On Kananu’s appointment, the judges were clear that Sonko was to blame for his own mistake when he nominated her only to purport to revoke the nomination when he had already been impeached.

Ann Kananu. [Courtesy]

They ruled that Sonko’s letter purporting to withdraw Kananu’s nomination was an afterthought since he was not the appointing authority.

“His attempt to withdraw the nomination was illegal and with no basis. He could not unilaterally withdraw the nomination without consulting the assembly,” they said.

Sonko had nominated Kananu as deputy governor in January 2020, but the High Court stopped the assembly from vetting and approving her. However, when Sonko was impeached on December 17, the case was withdrawn paving way for her appointment.

On whether Sonko’s impeachment impacted Kananu’s appointment, the judges ruled that the ex-governor’s role ended when he made the nomination and the remaining decision on her appointment was in the hands of the county assembly.

They added that there was adequate public participation in Kananu’s appointment process and that the speaker had the power to appoint the deputy governor since he was acting in the position of governor after Sonko’s impeachment.

In the second decision on the impeachment process, the judges drove the proverbial last nail in Sonko’s coffin by declaring that he was lawfully impeached by both the county assembly and the Senate, and that he was the creator of his downfall when he abused powers of his office.

 They ruled that both the county assembly and the Senate complied with all the statutory provisions for impeaching a governor, including giving him adequate notice to respond to the allegations raised against him.

“He was properly supplied with the charges levelled against him and given sufficient time to respond. We do not agree with his claims that there was external hand of the president in his ouster, which met the constitutional threshold required to impeach a governor,” ruled the judges.

Sonko was also let down by 57 MCAs who he had taken to a hideout in Kwale to skip the impeachment voting when the judges found that they actually participated in the proceedings by logging in to their accounts and supporting the motion to remove him from office.

Former Nairobi Governor Mike Sonko. [Courtesy]

According to the judges, the Senate did its best to give all parties equal opportunity to present their cases within the limited time and there was no merit to claim that the senators had a predetermined opinion to remove him from office.

“As a matter of fact, it is his conduct that does not meet the high standards expected of a governor that was relied upon by the senators to impeach him. There was overwhelming evidence and the senators were given a chance to vote in any way they liked,” ruled the judges.

The judges, however, recommended that in future proceedings to impeach a governor, the Senate should opt for a select committee which is more objective in investigating allegations against a governor as opposed to a plenary session that can be turned into a lynch mob.

The judges also absolved Independent Electoral and Boundaries Commission from blame when they called off the planned by-election, ruling that they could not proceed when the office of the deputy governor had been filled and the Nairobi speaker handed over the baton to Kananu.

Sonko, in his application, had argued that his impeachment both by the Nairobi County Assembly on December 3 and the Senate on December 17 was illegal, null and invalid since it did not meet the requisite threshold to remove him from office and occasion the by-election.

According to the ex-governor, he was not granted sufficient time to answer to the charges the assembly had brought against him, and that the motion’s mover, Michael Ogada, had a personal vendetta against him for reporting him to investigating officers over alleged corruption.

Another petition that stopped Kananu from being sworn in as governor was filed by Law Society of Kenya, which sought to compel IEBC to proceed with a by-election on account that at the time Sonko was impeached, there was a vacancy in the deputy governor’s position and the only way to fill the leadership vacuum was through a by-election.