The possible charging in court of Nairobi Governor Mike Sonko on Monday is promising to raise constitutional questions, especially if he is barred from office like it has happened to two of his colleagues.
With no deputy governor to step in once he is charged and barred from office, in keeping with High Court Judge Mumbi Ngugi’s ruling on July 24 that governors charged with economic crimes vacate office for the duration of their trial, the Sonko issue will present a unique situation for Nairobians.
The Director of Public Prosecutions (DPP), Nordin Haji, on Friday ordered the Ethics and Anti-Corruption Commission (EACC) to arrest Mr Sonko and other persons “for the crimes of conflict of interest arising from having received monies from the County of Nairobi whilst serving as governor, unlawful acquisition of public property, money laundering and other economic crimes".
As provided in Article 183(4) of the Constitution, County Assembly Speaker Beatrice Elachi would only act as governor if there was a ‘vacancy’ in the office of the governor.
However, lawyer and devolution expert Mutakha Kangu, as well as lawyer Peter Wanyama, contended that stepping aside, as would happen once Governor Sonko is charged possibly on Monday next week, would not create a vacancy in his office.
Even if the Speaker was to act, she would only do so for 60 days before an election is held.
It is an interpretation they share with deputy Senate Speaker Kithure Kindiki, who has argued that a governor does not cease to hold office by simply being barred from accessing his office.
According to Dr Kangu, the situation could become exceptionally ripe for the suspension of the county executive as provided for under Article 192 if the governor will be barred from carrying out his official functions and there is no deputy to take charge.
“When the Constitution says you must have a deputy governor, Governor Sonko took it for granted and he thought he was going to be clever for everybody.
My take on this is that he has created a situation that is exceptional. I wouldn’t be hesitant to recommend to the President to utilise Article 192 and suspend the executive arm of the county government in Nairobi,” said Dr Kangu.
Article 192 provides the circumstances under which a county government can be suspended: one, if there is an emergency arising out of internal conflict or war, and two, in any other exceptional circumstances.
The second option requires the President to form a commission that would then recommend to him to suspend the county government.
With the governor expected to stay away from his office and official functions for the duration of his trial as provided for under the Anti-Corruption and Economic Crimes Act (ACECA), it means there would be no one to assent to bills, including Finance Bill, which could cripple county operations.
“The governor is required to assent to laws. With him out of office, albeit temporarily, this means that if the county assembly passes a finance bill and he cannot assent to it, the county will not have money to spend. This is a very serious exceptional circumstance (that warrants the President’s attention to act),” he added.
Mr Wanyama, on the other hand, says the looming situation requires the county government to run to the Supreme Court for an advisory opinion on how to move on.
“Out of the doctrine of necessity, the Supreme Court should allow the Speaker to act to ensure continuity,” he says.