Nairobi MCAs on Saturday resolved to impeach Governor Mike Sonko in a last-ditch effort to save the county government from the threats of suspension.
The impeachment must, however, be ratified by at least 24 elected senators to sail through.
The resolution comes after the anti-corruption court barred the embattled governor from setting foot in his office until the case of misuse of public funds against him is heard and determined.
The fact that Mr Sonko does not have a deputy complicates matters for him and Nairobians, giving President Uhuru Kenyatta sufficient grounds to suspend the county government for 90 days.
Mr Polycarp Igathe, who was elected as Mr Sonko’s deputy in the August 8, 2017, General Election, resigned in a huff on January 12, 2018, barely six months in office citing lack of trust from his boss.
The MCAs convened on Saturday morning at City Hall and resolved that Mr Sonko’s continued stay in office was untenable as it would impact negatively on service delivery.
Sources at the county assembly intimated to Nation that the MCAs grappled with two tough choices — to commence impeachment proceedings against the governor over abuse of office by failing to appoint his deputy or risk having the county suspended.
Among the grounds for removal of Mr Sonko is his blatant disregard of a Supreme Court advisory opinion that a county governor can appoint a deputy in case a vacancy.
“The governor has deliberately gone against the ruling of the highest court in the land. This behaviour constitutes an abuse of office on the part of the governor,” a Nairobi MCA, who did not want to go on record said.
But Minority Whip Peter Imwatok said the meeting was a follow-up of another held at the Windsor Hotel on Friday on the state of affairs at the Nairobi County government.
“Majority of MCAs agree that there is a problem in Nairobi and that they are not going to pamper Mr Sonko while letting the county go to the drain. If it means impeaching him, we have no choice so that Nairobi functions well,” Mr Imwatok, the Makongeni Ward MCA, said.
He revealed that County Assembly Speaker Beatrice Elachi has already been notified of their intention and what remains is for them to collect at least 40 signatures required to kick off the impeachment process.
Embakasi MCA Michael Ogada said he will spearhead the collection of signatures beginning on Monday.
“Next week will not be business as usual. Before the President and ODM party leader Raila Odinga pronounce themselves, we are going to show direction, that Mr Sonko cannot run Nairobi as a private entity,” said Mr Imwatok.
Under Article 192 of the Constitution, the President can also suspend the county government if there is an emergency arising out of internal conflict or war.
In his book “Constitutional Law of Kenya on Devolution” which focuses on constitutional interpretation on devolution, Dr Mutakha Kangu, the former chairperson, Task Force on Devolved Government in Kenya, says that it is exceptional circumstances that would lead to the suspension of a county government.
“What is happening in Nairobi qualifies as a special circumstance blameable on the county governor for ignoring the Supreme Court advisory and choosing to play politics with a serious matter as the office of his deputy. Now see, there is no deputy to take over from the governor!” Dr Kangu told Nation.
“You can prove wrongdoing against the county executive, county assembly or both and suspend either of the two or both. In this case, the county assembly cannot be suspended because it has committed no wrong but the governor has,” he added.
In 2015, President Kenyatta declined to suspend the county government of Makueni after a fallout between Governor Kivutha Kibwana and the MCAs.
Prof Kibwana initiated the process after accusing the MCAs of being greedy and in the subsequent 2017 election, all but one of the MCAs were voted out.
According to Dr Kangu, President Kenyatta may have been hesitant on the Makueni case because he did not want to send the wrong message of appearing to fight devolution.
Section 124 of the County Government Act provides that during the period of suspension of a county government, the functions of the county executive committee shall be suspended and its functions shall be undertaken by an interim county management board.
On the other hand, the county assembly shall stand prorogued, the Speaker and MCAs shall remain in office and shall retain half their benefits while Bills already before the assembly shall expire and the committees shall also be dissolved and only reconstituted once a new order has been established.
If the MCAs choose to have the governor impeached as provided for in Article 181, they must have evidence to support the grounds that the governor has grossly violated the Constitution or any other law, abuse of office or gross misconduct, commission of a crime and physical or mental incapacity to perform the functions of his office.
Section 33 of the County Governments Act provides for the removal of a county governor, an MCA may by notice to the Speaker, supported by at least a third of the 122 MCAs, move a motion for the removal of the governor.
However, Mr Sonko’s removal can only happen when the county assembly resumes its sittings next year.
The removal entails drafting the charges, filing with the office of the Speaker of County Assembly the notice of intention to impeach. In this case, the governor shall have seven days within which to reply before debate ensues.
If a motion to remove Mr Sonko is supported by at least two-thirds of the 122 MCAs, the Speaker shall inform the Speaker of Senate of that resolution within two days.
During this time, the governor shall continue to perform the functions of the office pending the outcome of the Senate.
Within seven days after receiving notice of a resolution from the speaker of the county assembly, the Speaker of Senate shall convene a meeting of the Senate to hear charges against the governor.
The Senate, by resolution, may appoint an 11-member special committee to investigate the matter. The committee shall have 10 days to report to Senate on its findings.
The governor shall have the right to appear and be represented before the special committee during its investigations. The Senate shall, after according the governor an opportunity to be heard, vote on the impeachment charges.
If a majority of the elected Senators vote to uphold the impeachment charge, the governor shall cease to hold office. If a vote in the Senate fails to result in the removal of the governor, the Speaker of the Senate shall notify the Speaker of the concerned county assembly accordingly.
The motion by the assembly for the removal of the governor on the same charges may only be reintroduced to the Senate on the expiry of three months from the date of the vote.
A county governor may be removed from office on any of the following grounds:
(a) gross violation of this Constitution or any other law;
(b) where there are serious reasons for believing that the county governor has committed a crime under national or international law;
(c) abuse of office or gross misconduct; or
(d) physical or mental incapacity to perform the functions of office of county governor.