Judges of the Supreme Court yesterday (Thursday) retreated to make a determination on whether former Nairobi governor Mike Sonko was properly impeached, a judgment that will make or break his political career.
After a six-hour session during which different parties made their arguments in the petition filed by Mr Sonko, Chief Justice Martha Koome said once the determination is ready, the registrar of the apex court will issue a notice indicating the date of the judgment.
Other judges on the bench include Deputy Chief Justice Philomena Mwilu and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.
Although Mr Sonko has since been cleared to contest the Mombasa governorship seat pending determination of the appeal, the fate of his election lies with the Supreme Court. His lawyers yesterday said the appeal has serious consequences and is his last bullet.
Should the top court find he was properly removed from the governor’s office, Article 75(3) of the Constitution will take effect. It bars a person impeached from a public office from ever holding any other state office.
Mr Sonko was elected governor of Nairobi City County in the 2017 General Election for a term of five years.
He served as governor until December 17, 2020, when he was removed from office by way of impeachment.
Passing the resolution to remove him from office, the Senate found him guilty of plundering public resources, persistently intimidating and molesting county executives and unlawfully using public funds to pay for his daughter’s travel to New York in the US.
He was also found guilty of persistently and wilfully using, publicising and publishing abusive and unbecoming words and language as evidenced by his social media posts.
Further, the Senate found that in his numerous rants, Mr Sonko hurled abuses and conducted himself in a manner that undermined and demeaned the office of the governor.
His lawyers, Mr Wilfred Nyamu and Dr John Khaminwa, yesterday urged the apex court to overturn the decisions of the High Court and the Court of Appeal, which had upheld his impeachment by the Senate and the Nairobi County Assembly.
The lawyers argued that the impeachment was illegal since there was no public participation and that Mr Sonko was denied a hearing both at the Senate and the county assembly.
“Due process was not followed by the county assembly in the impeachment of the governor of Nairobi County. Impeachment is a legal process and flouting any single step of impeachment would render the entire process unlawful,” said the advocates.
They told the Supreme Court that Mr Sonko’s right to a fair trial and fair administrative action were violated as he had not been given sufficient time to prepare his defence against the claims levelled against him.
In addition, they maintained that new evidence was tabled at the tail end of the proceedings at the county assembly. The court also heard that there was lack of public participation in the impeachment process.
The lawyers alleged that at the Senate there was a pre-determined outcome “as confirmed by the statement made by Kakamega Senator Cleophas Malala to the effect that there was no need for further submissions as the Senate had already made a decision”.
“It is the appellant’s submission that the Senate violated the Constitution and the law by finding that Mr Sonko was in breach of procurement procedures when he was not an accounting officer and passing a resolution to remove him based on evidence that did not link him with the acts, omissions and commissions complained about,” said the lawyers.
In opposition to the appeal, the county assembly, the Senate and the Attorney-General urged the Supreme Court to uphold the impeachment and deliver the judgment soon, and if possible before the August 9 General Election.
The Attorney-General, through lawyer Paul Nyamodi, said the appeal was collateral meant to allow Mr Sonko to participate in the forthcoming elections.
The hearing of his appeal at the Supreme Court yesterday started with a loss to Mr Sonko after the judges dismissed his request for disqualification of the Chief Justice from the impeachment case over claims that she was likely to be biased against him.
The court also declined Mr Sonko’s request for postponement of the hearing on grounds that his lawyers were not prepared to proceed.
The lawyers alleged that based on recent remarks by the Chief Justice on the election of convicted or impeached persons, she was perceived to be biased and impartial in the case concerning Mr Sonko. They wanted her to recuse herself from the bench.
But the apex court dismissed both applications –for recusal of the CJ and adjournment of the hearing –and ordered the parties to make their oral arguments on the case.
With regard to the CJ’s recusal, the judges said no materials were placed before them to justify the allegations of bias.
“On recusal, no material were placed before us to justify recusal by the president of the court,” it was ruled.
The judges noted that the issues before them were about the law and interpretation of the Constitution in relation to the impeachment of a governor.
“Mr Sonko is uncomfortable with the Chief Justice presiding over this matter or participating in these proceedings whatsoever. He believes the CJ has taken a position on the same based on her statement issued recently in relation to the appellant (Sonko). This statement was aired in public and for that matter, justice must not only be done must be seen to be done,” lawyer Nyamu said.
The CJ’s remarks that formed the basis of Mr Sonko’s discomfort were about the application of Article 75 of the Constitution, which Dr Khaminwa said may have been misunderstood, leading to the perception that she could be biased.
“That statement having been made in public, not only Mr Sonko is concerned but members of public sympathetic to him. Where it is perceived that the CJ will be biased, the best thing for the CJ to do is to recuse herself and stay away from this matter,” he added.
On adjournment, the lawyers said the other parties filed their documents late and that they had not had adequate time to read the written arguments.
“Under Article 50 of the Constitution, parties ought to be given adequate time to prepare. That time has not been afforded by the directions of the court on the hearing of the matter. It cannot be lost that this is the appellant’s last bullet in relation to his fundamental rights under Article 38 on political rights,” said Mr Nyamu.
But the court said the reasons advanced by Mr Sonko’s lawyers were not satisfactory to warrant postponement of the hearing.
“We are not satisfied the reasons advanced are sufficient to warrant adjournment. The appellant filed the appeal in April and did not file a hard copy, he filed it late and the submissions, although filed late, are already on record,” said the court in the ruling read by the CJ.
The applications for adjournment and recusal had been opposed by other parties in the case, including the electoral agency and the Attorney-General, who said the matter was urgent and had a bearing on Mr Sonko’s election.
Through Mr Nyamodi and Mr Edwin Mukele, for the electoral agency and the AG respectively, it was argued that the two applications were a delaying tactic in view of the High Court’s judgment that allowed Mr Sonko to vie for the Mombasa governorship.
The High Court’s decision was based on the pending appeal at the Supreme Court challenging the impeachment.
“It is our position that we have every confidence in the CJ’s ability to handle the matter impartially. The CJ is the senior judicial officer in Kenya, the comments causing Mr Sonko discomfort were based on particular provisions of the Constitution,” said Mr Nyamodi.
“As CJ you are entitled to comments on constitutional provisions. The comments were on the provisions of the Constitution, not this matter. The applications are a time-wasting gimmick by Mr Sonko and his advocates,” he stated.
