Removing Nairobi Governor Mike Sonko from office will trigger a by-election clause in a county for the first time since the inception of devolution in 2013, thanks to the city’s lack of a deputy governor.
While vacancies in other regions following the death or impeachment of the county boss have been immediately filled by the deputy governor, the Nairobi case presents a scenario only relevant to the capital.
After Mr Polycarp Igathe resigned as deputy governor in early 2018, Mr Sonko has failed to name a successor.
Deputy governors who have taken over from their bosses are Nyeri’s Samwel Wamaitha following the death of Nderitu Gachagua in 2017; Mr Mutahi Kahiga in the same county following Mr Wahome Gakuru’s death in November 2017; Dr Hillary Barchok in Bomet after the demise of Ms Joyce Laboso in July 2019; and most recently Mr James Nyoro in Kiambu in January 2020 following the impeachment of Mr Ferdinand Waititu.
For Nairobi, the failure by Mr Sonko to name a deputy might mean an election within two months, if no intervention is sought and obtained in court.
Meanwhile, Nairobi County Assembly Speaker Benson Mutura will be at the helm of City Hall should Mr Sonko be ousted.
“If a vacancy occurs in the office of a governor and that of deputy governor, or if the deputy governor is unable to act, the speaker of the county assembly shall act as governor,” the law says.
“If a vacancy occurs in the circumstances contemplated by clause (4), an election to the office of governor shall be held within 60 days after the speaker assumes the office.”
Constitutional expert Bobby Mkangi said barring any court intervention, Nairobi City’s 2,250,853 voters would have a date with the ballot.
DNation bodytext: “In the circumstance that the governor is impeached, and given the fact that the deputy governor is not in office, it goes that the Speaker of the County Assembly shall act as a governor for 60 days a period within which an election for governor shall be held,” said Mr Mkangi, who was part of the Committee of Experts that drafted the 2010 Constitution.
This timeline of 60 days, however, is based on whether or not the governor goes to court to challenge his impeachment and what orders he gets.
“In this case, there is a strong likelihood that the governor may go to court, most likely on procedural issues, and see whether the court can quash the confirmation of charges of impeachment by the Senate,” Mr Mkangi argued.
Such a court proceeding, Mr Mkangi added, would also determine when the 60 days kick in.
“In my view, the 60 days do not kick in until this issue is a finality. The confirmation of charges of impeachment come to a finality once court processes, if any, have been exhausted, and the charges, upheld,” explained Mr Mkangi.
If the governor does not go to court or does not get favourable orders if he does, then the timeline kicks one once the communication of impeachment has been made from the Speaker of the Senate to his Nairobi county assembly counterpart.
Former Nairobi Assembly Speaker Beatrice Elachi said the road ahead was one contemplated by the Constitution.
“This is a constitutional process. Once a governor is impeached, the Speaker of the County Assembly takes over as a care-taker for a period of 60 days within which the county will then go to an election to choose a governor—now that we do not have a deputy governor,” Ms Elachi said on Citizen TV last week.
It is important to note that Sonko’s nomination of Anne Kananu Mwenda as his deputy governor early this year was halted by the court.
Justice Mumbi Ngugi, who is expected to make a ruling in the coming days after hearing from both sides, in February halted the vetting of Ms Mwenda until the case that was filed by voter Peter Agoro was heard and determined.
“Sonko, after being charged, was ordered not to go to office or interfere with witnesses, which order was given to ensure that the integrity of the prosecution process is insulated from any interference,” said Mr Agoro in his submissions.
It is not clear what would happen if the governor were to be impeached and Justice Ngugi then rules that Mr Sonko had the right to nominate the deputy governor, and whether the Assembly can vet a deputy governor nominee of an impeached governor.
