MCAs warn tell Sonko as he fails to file case on deed

Nairobi Governor Mike Sonko has not made good his threat to file a case at the High Court to nullify the deed that transferred some of the county’s functions to the national government, as city legislators warn they will impeach him if he continues interfering with Nairobi Metropolitan Services (NMS) operations.

In the past couple of weeks, the governor has talked of frustration and embarrassment by people he described as Harambee House mandarins, whom he accused of hijacking the implementation of the deed and threatened to overturn it.

“I am now ready for consequences, even if it means being impeached. As an elected governor, I will not betray the people for a second time. Let them do what they want but I will withdraw my signature from that deed,” Mr Sonko declared.

On April 22, Mr Sonko said that he had asked a team of lawyers to do the paperwork in readiness to file his case.

“I am starting the process of terminating the deed, just like any other ordinary contract. I will personally go to court to have it terminated,” he said, warning that he would only reconsider the decision if officers from State House, whom he did not name, stopped frustrating him.

NMS STAFF

On Friday, Mr Sonko’s spokesman, Ben Mulwa, insisted the push to go to court is on.

“There are ongoing deliberations and activities with the lawyers and once they are done, then he will move to court. The governor is concerned with the illegalities being committed in the implementation process,” said Mr Mulwa.

Among the illegalities cited by Mr Mulwa include the move by Kenya Revenue Authority to open two new bank accounts, closing those initially operated by the county, as well as locking the county government out of the new accounts.

He claims the accounts were opened unprocedurally with signatories not known as well as their transactions contrary to the Public Finance Management Act.

He also questioned the decision by the Public Service Commission to second county staff to NMS and described the bringing in of military officers to manage the city as illegal.

But legal experts argue that Mr Sonko is merely playing to the gallery because overturning the deed is more complicated and far beyond his reach, even though he is one of the principal signatories.

The deed was signed by Governor Sonko, on behalf of the county, and was witnessed by acting county secretary Justus Kathenge and his predecessor, Simon Morintat.

PUBLIC APPROVAL

Devolution Cabinet Secretary Eugene Wamalwa signed on behalf of the national government at a ceremony that was witnessed by President Uhuru Kenyatta, Attorney-General Kihara Kariuki and Senate Speaker Kenneth Lusaka.

The deed took effect 21 days after it was signed on February 26 and approved by residents through a series of public participation engagements that culminated in the approval by the County Assembly.

Thereafter, an addendum was signed with the same parties after 30 days, effectively breathing life into the agreement that saw four key functions transferred to the new outfit.

Makueni Senator Mutula Kilonzo Jr said the deed was designed in such way that it has no implementation matrix, an avenue which provides the governor with a legal loophole to wriggle out.

“The implementation matrix was never contemplated in the deed. NMS is neither a parastatal nor government agency, and there are questions why county staff have been seconded there and how it should receive public funds,” he said.

“If I were the governor, I would do nothing and the NMS will collapse on the tilts on which it was precariously erected.”

The senator observed that as much as the contract has a termination clause, no party can go to court to seek termination without a basis.

“In my view, the parties failed by not including Parliament and the assembly in the implementation matrix to ensure no party reneges,” he said.

TOE THE LINE

Constitutional lawyer Bobby Mkangi agrees with Senator Mutula, saying the governor has to prove the other party is not abiding to the terms of the contract as well as what has materially been breached.

“Probably the court might direct that the wrangle might need arbitration to repair it but it will depend on how well Mr Sonko will argue his case with tight grounds,” he said.

However, Mr Nzamba Kitonga, who chaired the Committee of Experts that midwifed the 2010 constitution, said there is nothing Mr Sonko can do about the deed.

“He cannot terminate it individually as it involves many parties including the Assembly, Senate, the State and the public. Although the due process was not followed before signing the Deed, the illegalities will be held against him.”

At City Hall, the political squeeze seems to be increasing for Mr Sonko as he is faces the threat of impeachment. with reports emerging that ward reps are mulling the reintroduction of a censure motion against him.

A section of Nairobi MCAs accuse him of interfering with the operations of Nairobi Metropolitan Services.

One of the MCAs privy to the behind-the-scenes ouster plan told the Saturday Nation that there is a watertight plan in place to deal with the governor should he continue interfering with the NMS once the Assembly resumes on June 2.

IMPEACHMENT

The calls began last week when the MCAs, drawn from both sides of the political divide, warned Mr Sonko to toe the line or risk having his impeachment motion revived when the assembly returns from recess.

Nairobi West MCA Maurice Gari called on President Uhuru Kenyatta to “free them” to do their work if the governor continues with his push and pull.

Majority Leader Charles Thuo said no one is interested in impeaching Mr Sonko, but warned that it all depends on how he treats the agreement.

He pointed out that the assembly will not allow the governor or anybody else to stop the functions transferred unless the two parties in the agreement agree to change the deed.

“Let him review his stand and stop any more disturbance to NMS.But if he continues giving us more sideshows then we are definitely going to have a problem with him. We have a plan in place,” said the Dandora Area 3 MCA.

Dandora Area 4 MCA Francis Otieno said MCAs will not allow Nairobi residents to suffer at the expense of politicians.

“When he signed the deed, he knew what he was doing, and now we are just calling upon him to obey what he signed,” said the ODM MCA.

However, Mr Mulwa poured cold water on the ouster calls, saying the process is driven by a few MCAs who have been at loggerheads with the governor.