Nairobi stares at constitutional crisis over Sonko’s graft case

Nairobi Governor Mike Mbuvi Sonko, who has gained notoriety in recent years for his flamboyance and love for gaudy jewellery, will spend two more nights at the Industrial Area Remand Prison in Nairobi as a city court decides whether or not to free him on bond pending his trial on corruption-related charges.

After listening to a whole day of arguments from the prosecution and defence, Mr Douglas Ogoti, sitting at the anti-corruption court at the Milimani Law Courts in Nairobi on Monday, said he will rule on Mr Sonko’s bail application on Wednesday, December 11.

A lacuna in law places the fate of Nairobi City County in the balance as the governor does not have a deputy, and it is not clear for how long Speaker Beatrice Elachi can legally run the show at City Hall.

Should Sonko be forced to step aside, as happened to his colleagues in Kiambu and Samburu, Nairobi would be the only county in the country without a governor or a deputy, which could greatly hinder the provision of services.

Whereas the Constitution provides for Ms Elachi, as Speaker of the County Assembly, to temporarily hold office in the event of a vacancy, such is not the situation in Nairobi as a vacancy has not been declared yet.

SUSPEND GOVERNMENT

That means President Kenyatta will have to suspend the county government and set the ball rolling for a by-election, or Sonko will be forced to appoint a deputy who will have to be vetted and approved by the county assembly.

Without any one in charge at City Hall, the President may invoke his powers under Article 192 and suspend the county.

The Article provides that the President may suspend a county government in an emergency arising out of internal conflict or war, or in any other exceptional circumstances.

Kenya is not at war, and neither is there an internal conflict, but Senate Deputy Speaker Kithure Kindiki said on Monday the unique situation that is facing Nairobi today can fall under the “other exceptional circumstances” proviso and provide the necessary grounds for suspension of the county government.

Should the President take that route, the law provides that a county government shall not be suspended beyond 90 days, which will be followed by an election.

COMMISSION OF INQUIRY

However, the suspension can only take effect after an independent commission of inquiry has investigated allegations against the county government, the President is satisfied that the allegations are justified, and the Senate has authorised the suspension.

“A suspension will definitely lead the county to an election,” Prof Kindiki said.

As its governor cools his heels in remand prison, the Nairobi County Assembly starts a long recess today until February next year.

Speaker Elachi can, however, summon a special sitting of the Assembly to consider a nominee should Sonko present a name to the assembly.

At Industrial Area Remand Prison, Sonko will be examined to ascertain whether he should see a specialist after his lawyers told the court he was roughed up by police soon after his arrest in Voi and has been experiencing chest pains as a result.

Mr Ogoti directed that a prison medical centre should first certify Mr Sonko’s medical condition before any arrangements for medication are made.

FLIGHT RISK

His lawyers had pleaded with the court to consider a report issued by Dr Esther Nafula from MP Shah Hospital in Nairobi indicating that he was experiencing chest pains and needed further medical attention.

But the prosecution warned that Sonko escaped from a hospital bed on April 16, 1998 when he was taken ill at Shimo la Tewa prison, and was therefore a flight risk.

While the defence argued that the issue on Sonko’s previous conviction was already settled, the prosecution insisted that documents tabled in court over the matter were part of his plea for mercy at the time.

The defence also asked the court to have Sonko and his co-accused held in the same police stations they had been detained before they were arraigned, but the magistrate upheld the prosecution’s argument that they were no longer suspects as they had pleaded to the charges against them, hence prison would be a better place to have them and would be similar to the way other suspects are usually treated.

Mr Ogoti also issued warrants of arrest against five other people who did not appear in court on Monday but were supposed to be charged alongside Sonko.

CO-ACCUSED

The governor, who spent the weekend in custody following his dramatic arrest on Friday, denied graft-related charges, including money laundering, conflict of interest, abuse of office, acquisition of public funds, and conspiracy to commit an economic crime.

Specifically, Sonko is accused of corruptly receiving more than Sh25 million through proxies, including Mr Fredrick Odhiambo, who also denied the charges.

The money, it is claimed, was deposited into Mr Sonko’s personal accounts in different banks in different parts of the country.

In the first file, Mr Sonko was charged together with Mr Odhiambo, Mr Anthony Otieno Ombok, as well as Webtribe Ltd and its directors Danson Muchemi, Robert Muriithi and Zablon Onyango, an agent.

Mr Muchemi, Mr Muriithi and Mr Onyango were not in court yesterday and their lawyer informed Magistrate Ogoti that they had presented themselves to the Ethics and Anti-Corruption Commission (EACC) offices as directed.

EMBEZZLEMENT

They are accused of embezzling Sh24 million from the county through a tender for the supply and implementation of an electronic revenue collection and payment system between July 1, 2018 and January 31, 2019.

In the second file, where Sonko is accused of pocketing Sh3 million, the Nairobi county boss was charged alongside county secretary Peter Kariuki, and head of supply chain management Patrick Mwangangi.

The others accused are tender committee members Samuel Ndung’u, Edwin Kariuki, Lawrence Mwangi, Preston Miriti, and senior clerical officers at the county, Mr Wambua Ndaka and Mr Andrew Nyasiego.